Court of Appeals of Indiana | Memorandum Decision 18A-JC-432 | August 23, 2018 Page 1 of 13

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Daniel G. Foote

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

David E. Corey

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In Re: The Matter of J.W., a 

Child in Need of Services 

(CHINS);

M.W. (Mother),

Appellant-Respondent,

v.

Indiana Department of Child 

Services, et al.,

Appellee-Petitioner. 

August 23, 2018

Court of Appeals Case No.

18A-JC-432

Appeal from the Marion Superior 

Court

The Honorable Marilyn Moores, 

Judge

The Honorable Rosanne Ang, 

Magistrate

Trial Court Cause No.

49D09-1709-JC-2969

Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-432 | August 23, 2018 Page 2 of 13

Statement of the Case

[1] Appellant, M.W. (“Mother”) appeals the adjudication of her child, J.W. 

(“J.W.”), as a Child In Need of Services (“CHINS”). Concluding that there is 

sufficient evidence to support the trial court’s adjudication of J.W. as a CHINS, 

we affirm the trial court’s judgment. 

[2] We affirm. 

Issue

Whether there is sufficient evidence to support the trial court’s 

adjudication of J.W. as a CHINS.

Facts

[3] Mother and J.W.’s alleged father C.K. (“Alleged Father”)1 became involved 

with the Indiana Department of Child Services (“DCS”) in September 2017 

when J.W. was fifteen years old. From the time J.W. was in kindergarten until 

about the age of twelve, he had lived with his maternal grandparents “almost 

full time.” (Tr. 33). Mother had also lived with maternal grandparents “off and 

on” when J.W. was there, but it was “more off than on.” (Tr. 33). Sometime 

in 2014, when Mother obtained an apartment of her own, J.W. began living 

with Mother. 

 

1 Alleged Father is not a party to this appeal.
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[4] Around September 2017, DCS received a report that Mother had abandoned 

and neglected J.W., that she was “moving around from place to place,” and 

that J.W. had been living with a family friend (“Family Friend”) for “quite a 

while.” (Tr. 9, 12). DCS Assessment Worker James Oliver (“Assessment 

Worker Oliver”) met with J.W. on multiple occasions during his assessment but 

was unable to reach Mother despite several attempts. His efforts to reach 

Mother included referring the matter to a private investigator, leaving voicemail 

messages and sending text messages to the telephone number Family Friend 

and J.W. had for Mother, and tracking down “a couple of addresses and a 

couple of phone numbers, all of [which] weren’t working.” (Tr. 11). Following 

Assessment Worker Oliver’s initial assessment, DCS filed a CHINS petition 

(the “Petition”) alleging that J.W. was a CHINS due to Mother’s abandonment 

and neglect. J.W. also received a referral for home-based therapy. During the 

pendency of the CHINS proceeding, J.W. ran away from his placement with 

Family Friend, spent one evening in Emergency Shelter Care, and then spent 

one week in foster care before running away again. 

[5] On January 9, 2018, the trial court held a fact-finding hearing on the Petition. 

At the time of the hearing, J.W.’s whereabouts were still unknown. Mother 

failed to appear but was represented by counsel. The trial court heard 

testimony from five witnesses: (1) Assessment Worker Oliver; (2) home-based 

case manager Crystal Rose (“Case Manager Rose”); (3) home-based therapist 

Laura Beer (“Therapist Beer”); (4) J.W.’s maternal grandmother E.W. 
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(“Maternal Grandmother”); and (5) Family Case Manager Brittany Simmons 

(“Case Manager Simmons”).

[6] First, Assessment Worker Oliver testified about his initial assessment and 

multiple meetings with J.W., his several unsuccessful attempts to reach Mother, 

J.W.’s placement with Family Friend, and DCS’s filing of the Petition. Next, 

Case Manager Rose testified about her involvement as the home-based case 

manager assigned to J.W.’s case. She testified that, as of the date of the 

hearing, she had never met with Mother. She testified that the two had been 

scheduled to meet the week before the hearing, but Mother was a “no call / no 

show” and had texted two hours later that she “was sick.” (Tr. 17). Case 

Manager Rose also testified that DCS had referred her to Mother “to help assist 

with housing,” (Tr. 19), but that the two had not yet completed an initial 

assessment.

[7] Therapist Beer testified that she completed an intake with J.W. and then had 

two therapeutic appointments with him in October 2017. She also testified that 

during their second session, J.W. had told her that “he has a lot of mistrust 

towards his mother because of the treatment he had as a child not being cared 

for,” and that this mistrust “made it difficult for him to open up to others and to 

trust others.” (Tr. 28). She further testified, over a hearsay objection by 

Mother’s counsel, that J.W. had told her that Mother would often be locked 

away in her room, leaving J.W. to fend for himself. She then opined that 

Mother’s conduct had “seeded his mistrust.” (Tr. 29). Therapist Beer further 

testified that she had to discharge J.W. because his foster placement was 
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outside of her service area but that she recommended continued therapy for 

him.

[8] Maternal Grandmother testified that she had been J.W.’s primary caregiver 

from the time he was in kindergarten until Mother had obtained public housing 

approximately three years ago. She testified that Mother had had “problems 

controlling [J.W.’s] behavior” when he had lived with Mother in public housing 

and that J.W. had not been “coming home at night[.]” (Tr. 34). She also 

testified that Mother “has absolutely no idea how to parent a teenager” and that 

J.W. “would need help because his mother ha[d] not been there for him and 

ha[d] left him and that this point he’s [a] very angry child who has little or no 

respect for . . . any kind of authority.” (Tr. 34-35). She also testified that 

shortly after J.W. ran away from foster care, he had appeared at her home with 

all of his belongings. She testified that she had refused to let him move back in, 

but she had allowed him to leave his belongings. Maternal Grandmother 

further testified that she had not seen J.W. since her husband took him to 

school that day. 

[9] Finally, Case Manager Simmons provided testimony about DCS’s involvement 

in the matter since September 2017, when she was assigned the case after 

Assessment Worker Oliver completed his initial assessment. Case Manager 

Simmons testified that at the time she received the case, J.W. was in “kinship 

care” with Family Friend. (Tr. 40). She testified that Mother’s whereabouts 

were unknown at the time and that Alleged Father’s whereabouts were also 

unknown. She further testified that J.W. was initially placed with Family 
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Friend and then spent one night in an emergency shelter while DCS tried to 

locate a foster placement for him. She testified that J.W. was subsequently 

placed in foster care “for about a week” before running away and that she had 

provided law enforcement a “runaway packet” with J.W.’s picture and last 

known location. (Tr. 41, 49). She also testified that law enforcement had 

issued a warrant for J.W.’s detention. Finally, she testified that DCS’s plan was 

reunification by assisting Mother with therapy, housing, and other services to 

“ultimately help her get into a better place.” (Tr. 45). 

[10] That day, the trial court issued its order adjudicating J.W. to be a CHINS. On 

February 20, 2018, the trial court held a disposition hearing and issued another 

order (the “Participation Order”) requiring Mother to: (1) undergo a parenting 

assessment and to successfully complete all resulting recommendations, such as 

parenting classes, home-based counseling services, or other counseling services; 

(2) participate in home-based therapy to be referred by DCS and follow all 

resulting recommendations; and (3) participate in family therapy with J.W. and 

follow all resulting recommendations. Mother now appeals. 

Decision

[11] Mother argues that DCS presented insufficient evidence to support the trial 

court’s determination that J.W. is a CHINS. DCS bears the burden of proving 

by a preponderance of the evidence that a child is a CHINS. See IND. CODE § 

31-34-12-3; In re. M.W., 869 N.E.2d 1267, 1270 (Ind. Ct. App. 2007). When 

determining whether sufficient evidence exists in support of a CHINS 

determination, we consider only the evidence favorable to the judgment and the 
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reasonable inferences raised by that evidence. In re M.W., 869 N.E.2d at 1270. 

This Court will not reweigh the evidence or judge witnesses’ credibility. Id. 

Where a trial court enters specific findings and conclusions, we apply a twotiered standard of review. Bester v. Lake Cnty Office of Family & Children, 830 

N.E.2d 143, 147 (Ind. 2005). First, we determine whether the evidence 

supports the findings, and second, we examine whether the findings support the 

judgment. Id. We will set aside the trial court’s judgment only if it is clearly 

erroneous. Id.

[12] In its Petition, DCS alleged that J.W. is a CHINS pursuant to INDIANA CODE § 

31-34-1-1, which provides:

A child is in need of services if before the child becomes eighteen (18) 

years of age:

(1) the child’s physical or mental condition is seriously impaired or 

seriously endangered as a result of the inability, refusal, or neglect of the 

child’s parent, guardian, or custodian to supply the child with necessary 

food, clothing, shelter, medical care, education, or supervision; and

(2) the child needs care, treatment, or rehabilitation that:

(A) the child is not receiving; and

(B) is unlikely to be provided or accepted without the coercive 

intervention of the court.

[13] Within its order adjudicating J.W. as a CHINS, the trial court issued specific 

findings, including that: 

10. [Mother] has not consistently cared for [J.W.] in the past. When 

[J.W.] did reside with [Mother], she ha[d] issues with parenting him. 

Additionally [Mother] would often lock herself in her room, leaving 
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[J.W.] to fend for himself. [J.W.] has issues of mistrust of his mother due 

to this neglect.

11. [Mother] needs assistance locating appropriate housing for herself 

and [J.W.] as she lives with a family member in a home that does not 

have sufficient space for [J.W.].

12. Crystal Rose was referred to provide homebased case management 

services to [Mother]. Ms. Rose has been unable to meet with [Mother] to 

do the intake appointment in order to begin assisting [M]other with 

issues pertaining to housing, employment and any other identified case 

management need.

13. Laura Beer is a homebased therapist who was assigned to work with 

J.W. in October of 2017. Ms. Beer was able to meet with J.W. for an 

intake appointment and two subsequent therapy appointments. J.W. did 

not complete therapy with Ms. Beer. Ms. Beer believes that J.W. still has 

therapeutic needs.

14. During the pendency of this cause of action, J.W. ran away from 

placement with [Faimily Friend], spent one evening in Emergency 

Shelter Care, and only one week in foster care before running away 

again. The whereabouts of J.W. are currently unknown and the DCS is 

currently attempting to locate him.

15. . . . [Mother] has not provided [J.W.] with consistent care in the past 

and is not currently in a position to provide for his basic needs. 

Additionally, [Mother’s] history of parental deficiencies has created 

mistrust on the part of [J.W.], which is best addressed prior to him 

returning to her care. [Alleged Father] is incarcerated and unable to care 

for [J.W.] at this time.

16. . . . [J.W.] is in need of stability while [Mother] works toward 

obtaining a stable home that is appropriate for the family and 

demonstrates that she is able to provide consistent, appropriate care. 

[J.W.] and [Mother] are in need of family therapy to address the issues 

which have been created by [Mother’s] past parenting o[r] lack thereof.

(App. Vol. 2 at 104-05).

[14] On appeal, Mother does not challenge any of the above specific findings, and 

therefore those findings stand as correct. McMaster v. McMaster, 681 N.E.2d 
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744, 747 (Ind. Ct. App. 1997) (explaining that unchallenged trial court findings 

are accepted as true). Rather, Mother challenges only whether the trial court’s 

findings are sufficient to support two of its judgments: (1) that J.W.’s physical 

or mental condition was seriously impaired or endangered as a result of 

Mother’s neglect, refusal, or inability to supply food, clothing, shelter, medical 

care, education or supervision; and (2) that J.W. needed care or services he was 

not receiving and which were unlikely to be provided absent the court’s 

coercive intervention. She further contends that because J.W.’s location is 

unknown, the trial court’s orders are “largely moot,” and she suggests that the 

CHINS matter should be dismissed “at least until such time as [J.W.] is 

located.” (Mother’s Br. 23, 25). We disagree.

[15] Mother first challenges whether the trial court’s findings support a conclusion 

that J.W.’s physical or mental condition was seriously impaired or endangered 

as a result of Mother’s neglect, refusal, or inability to supply food, clothing, 

shelter, medical care, education or supervision. In her brief, she admits that 

“there is no question that J.W. may be ‘seriously endangered’ after having run 

away” but argues that J.W.’s status was not due to any “act or omission on the 

part of Mother alleged in the Petition.” (Mother’s Br. 23). Mother apparently 

misapprehends the unchallenged findings, which include specific findings 

bearing on both the abandonment and neglect allegations in the Petition and 

the trial court’s conclusion that J.W.’s physical or mental condition was 

seriously impaired or endangered. Specifically, the trial court found that 

Mother had not provided consistent care, housing, or supervision for J.W. in 
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the past, that she was not presently able to provide those basic needs, and that 

her history of parental deficiencies had caused emotional harm to J.W. such 

that his mistrust of her needed to be addressed prior to reunification.2 These

unchallenged findings support the trial court’s conclusion that J.W.’s physical 

or mental condition was seriously impaired or endangered because Mother had 

neglected, refused, or was unable to provide shelter and supervision to J.W. 

Accordingly, we find no error.

[16] Next, Mother challenges whether the evidence supports the conclusion that 

J.W. needed care, treatment, or rehabilitation he was not receiving and would 

be unlikely to receive absent the court’s intervention. In doing so, Mother 

makes the same arguments addressed above, which fail for the same reason: 

the unchallenged findings support the trial court’s conclusion that J.W. was not 

receiving care, supervision, or shelter from Mother. Regarding the need for the 

court’s coercive intervention, a trial court necessarily considers a parent’s “past, 

present, and future ability to provide sufficient care” during a CHINS 

 

2 Although Mother does not challenge any of the court’s specific findings, in her brief Mother argues, without 

elaboration or citation, that “no qualification or foundation was made to establish that [J.W.’s statements to 

Therapist Beer] were admissible under any applicable hearsay exception” and that “it was error for the 

juvenile court to admit the statements attributed to J.W. by Ms. Beer.” (Mother’s Br. 23). We find this 

argument neither cogent nor developed, and therefore Mother has waived it. Wallace v. State, 79 N.E.3d 992, 

1000 (Ind. Ct. App. 2017); see also Ind. Appellate Rule 46(A)(8)(a) (requiring that each contention be 

supported by cogent reasoning and supporting citations to legal authority). Waiver notwithstanding, Mother 

is incorrect in her assertion that no foundation was laid for admitting the hearsay exception. DCS laid a 

foundation for admitting the evidence pursuant to Indiana Evidence Rule 803(4), a statement made for 

medical diagnosis or treatment. Specifically, DCS provided evidence that Therapist Beer had explained “the 

therapy process and what therapy would be used for” (Tr. 25) and that J.W. was of an age that he could 

understand that the information he told her would be used in a therapeutic capacity. Accordingly, we find no 

error.
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adjudication. Matter of J.L.V. Jr., 667 N.E.2d 186, 190-191 (Ind. Ct. App. 

1996); see also In re D.J. v. Indiana Dep’t of Child Services, 68 N.E.3d 574 (Ind. 

2017) (“When determining CHINS status under Section 31-34-1-1, particularly 

the ‘coercive intervention’ element, courts should consider the family’s 

condition not just when the case was filed, but also when it is heard.”). Here, 

the trial court’s specific findings demonstrate Mother’s long history of parental 

deficiencies, her present inability to provide for J.W.’s basic needs, and her 

failure to engage in any services offered to her by DCS that would allow the 

trial court to predict she would cooperate with DCS without the court’s 

intervention. Cf. id. at 581 (explaining that parents did not need coercive 

intervention by the time of the fact-finding hearing because they “had 

completed the parenting curriculum . . . were very open and willing, had 

engaged in services, and were serious about doing what the court . . . asked 

them to do.”) (internal quotation marks omitted). Therefore, the trial court’s 

conclusion is not clearly erroneous. 

[17] Finally, Mother argues for the first time in her reply brief that the trial court’s 

CHINS adjudication should have been pursuant to INDIANA CODE § 31-34-1-8, 

rather than § 31-34-1-1, because J.W. was a “missing child” as contemplated by 

that provision. We find that argument waived. See Monroe Guar. Ins. Co. v. 

Magwersk Corp., 829 N.E.2d 968 (Ind. 2005) (“The law is well settled that 

grounds for error may only be framed in an appellant’s initial brief and if 

addressed for the first time in the reply brief, they are waived.”); see also Ind. 

Appellate Rule 46(C) (“No new issues shall be raised in the reply brief.”). 
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Waiver notwithstanding, her argument still fails because the sections of 

INDIANA CODE § 31-34-1-1, et seq., are not mutually exclusive; no language in 

the statute precludes a missing child from being adjudicated a CHINS under § 

31-34-1-1, and Mother has cited to no authority indicating otherwise. In fact, as 

the trial court noted, J.W.’s running away only “reinforces that this young man 

is in need of assistance.” (App. Vol. 2 at 105). 

[18] To the extent that Mother argues that “this CHINS matter should be dismissed, 

with or without prejudice,” as “neither [she] nor [DCS] can comply with the 

CHINS adjudication . . . because J.W. is unavailable to receive [services],” we 

likewise find that argument unavailing. (Mother’s Br. 21, 25). Mother 

apparently misapprehends her obligations under the Participation Order. The 

Participation Order requires Mother to engage in home-based therapy, 

complete a parenting assessment, and participate in family therapy with J.W. 

“when appropriate,” and the trial court expressly acknowledged that family 

therapy can only begin once J.W. has been located. (See App. Vol. 2 at 105

(“While DCS is unable to provide the needed services until [J.W.] is located, 

the Court is unwilling to find that [J.W.] is not in need of services based on this 

fact alone.”)). J.W.’s absence does not preclude Mother from following the 

trial court’s orders to engage in home-based therapy, complete the parenting 

assessment, and otherwise ready herself for J.W.’s return, at which time family 

therapy can begin. Certainly, if Mother’s goal is to reunify with J.W. as soon as 

possible, she should not delay participating in services until after J.W. is 

located. 
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[19] We reverse a trial court’s CHINS adjudication only when clearly erroneous, i.e., 

“that which leaves us with a definite and firm conviction that a mistake has 

been made.” Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 

(Ind. 1992). We find no such error here and therefore affirm the trial court.

[20] Affirmed.

Najam, J., and Crone, J., concur.