Court of Appeals of Indiana | Memorandum Decision 18A

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### 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.
A TTORNEY FOR A PPELLANT Samantha M. Joslyn Law Office of Samantha Joslyn Rensselaer, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Katherine A. Cornelius Robert J. Henke Deputy A ttorney s General Indianapolis, Indiana


### I N T H E 

# COURT OF APPEALS OF INDIANA

In the Matter of J.M

- C., I.M., E.M. , B.M., M.F., Ale.F., Ala.F. , Alin.F., and Alia. F., Children in Need of Services, T.M. , Mother, Appellant

- Respondent

, v. 

### Indiana Department of Child Services , Appellee

- P etitioner. July 30 , 2019 Court of Appeals Ca se No. 18A

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Kirsch , Judge .
[1] T.M. (“Mother”) appeals from the juvenile court’s order adjudicating her children to be children in need of servic es (“CHINS”). Mother raises the following restated issue for our review: whether the juvenile court erred in its CHINS determination because the CHINS adjudication was not supported by sufficient evidence.

[2] We affirm. 

### F acts and Procedural History
[3] Mother has nine biological children (collectively, “ the Children”)

. Tr. at 46. The father of the four oldest children, J.M

- C ., I.M., E.M., and B.M., is deceased. Id. P.F. , Mother’s boyfriend (“Boyfriend”) , is the father of the younger five children , M. F., Ale.F., Ala.F., Alin.F. , and Alia.F. Id. At the time the petition was filed, Mother, Boyfriend , and the C hildren were in the process of moving from Demotte, Indiana to a house in Hammond, Indiana. Id. at 50. Boyfriend also has four other children w ith A.L. Id. at 45

. A.L. and her four children lived in the same house with Boyfriend , Mother, and the Children

. Id. at 50.

[4] Indiana Department of Child Services (“DCS”) received a report on June 4 , 2018, about E.M. , who was fourteen at the time, and her newborn child. Id. at 45. Two days prior, E.M. had given birth to a child , and a DNA test was conducted that determined that Boyfriend was the father of E.M.’s child. Id. at 32

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[5] On June 4 , Demotte Police Department Officer Steve Mu s ch (“Of ficer Mu s ch”) went to the family’s Demotte home to serve a n out of state warrant on Boyfriend

. Id. at 28. Officer Musch had received information that Boyfriend
was “ armed and dangerous, ” and he and the other officers arrived at the house in tactical gear. Id. Boyfriend went into the house with B.M. , and the Sheriff’s tactical squad set up a p erimeter to surround the house. Id. at 28

- 29. Mother arrived at the house with I.M. while the officers were there and attempted to go into the hou se , but Officer Musch physically restrain ed her from entering. Id. at 31. Officer Musch asked Mother about the location of E.M., but M other repeatedly told the officer, “don’t say anything to [ Boyfriend ] cause [sic] he ’ll kill me.” Id. at 32. Boyfriend was eventually arrested , and Mother was transported to the police station

. Id. at 38 , 39

.
[6] A t the police station, DCS family case manager Kris Donahue (“ FCM Donahue”) spoke with Mother in order to locate the rest of the C hildren. Id. at 47. B .M., I.M., and J.M

- C. were at the police station , and E.M. was with her aunt in Chicago; the location of the rest was unknown

. Id. Mother informed FCM D onahue that the rest of the C hildren were at a house where the family was moving to in Hammond, but she could not remember the address. Id. at 48. The police wanted to arrest Mother for resisting law enforcement and disorderly conduct because of her behavior at the house, but FCM Donahue requested that she not be arrested so Mother could have custody of the C hildren. Id

. FCM Donahue then worked with Mother to create a safety plan

. Id. To comply with the safety plan, Mother was not to hinder the criminalCourt of Appeals of Indiana | Memorandum Decision 18A

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investigation and would work with D CS

. Id. Mothe r agreed to bring the Children to FCM D onahue the next morning for interviews. Id.

[7] Mother did not bring the C hildren in for interviews the next morning. Id. at 49. Instead, A.L. transported the C hildren , and they arrived at the interviews three hours late. Id. On June 5, 2018, FCM D o n a h ue deci ded to detain the C hildren because of Mother’s lack of compliance with the safety plan and the C hildren’s reports of sexual abuse , physical abuse, and neglect. Id. The C hi ldren reported to D onahue that Mother was aware of the abuse and neglect. Id.

[8] On June 6, 2018, DCS filed petition s alleging the Children to be CHINS

. Appellant’s App. V

ol. 2 at 84

- 11 9. The petitions allege d that the C hildren suffered from neglect , physical abuse, and sexual abuse. Id. at 84

- 85. The petitions mentioned that Boyfriend had threatened to kill the children and Mother if they told others about the abuse. Id. at 117.

[9] The petition specifically stated that the C hildren suffer ed from educational neglect. Id. at 116. The C hildren were not enrolled in school

. Tr. at 51. FCM Donahue as ked Mother to provide documents pertaining to the C hildren’s education, and Mother provided some attendance records on August 2, 2018. Id. at 52 , 53

. Mother told FCM Donahue that the C hildren had been attending school online through Khan Academy , which FCM Donahue discovered was not an accredited school

. Id. at 51

- 52, 76. FCM Donahue evaluated the attendance record s and discovered that the C hildren had missed many days of school and that the records only covered two years

. Id. at 53. The C hildrenCourt of Appeals of Indiana | Memorandum Decision 18A

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told FCM Donahue that they could not remember the schools they attended, and FCM Donahue could not locate any school at tendance records

. Id. at 54. Only one school had a record of the oldest child, J.M

- C ., who was seventeen at the time of the proceedings, attending in fifth grade. Id. at 74.

[10] A t the fact

- finding hearing on August 8, 2018, FCM Donahue testified about her experience working with the family. Id

. at 46

. She stated that Mother had told FCM Donahue that she was unaware that E.M. was pregnant because she and Boyfriend sent E .M. to live with Boyfriend ’s sister in Chicago

. Id. at 47. FCM Do nahue stated that one of the other children, B.M., told her that E.M. had been sent away in an attempt to “abort the baby.” Id. at 4 6

- 47

. FCM Donahue testified that Mother told her she would not “participate in any services until court ordered.” Id. at 55. FCM Donahue also stated that Mother failed to abide by the safety plan after Boyfriend’s arrest and refused to provide immunization records for the Children , which required DCS to have blood d raws taken from the Children to determine if t hey had been vaccinated

. Id

. at 55

- 56. Additionally, Mother was not consistent with information about where she was living

. Id

. at 55. Specifically, she provided DCS with an address in Sauk Village as her h ome address; however, that address was a vacant apartment
. Id

. Because Mother would not give a proper address, DCS was unable to view her apartment to see whether it was suitable and safe for the Children

. Id

. at 56.

[11] At the conclusion of the hearing, the juvenile court found the Children to be CHINS. In its findings issued on August 17, 2018 , t he juvenile court found thatCourt of Appeals of Indiana | Memorandum Decision 18A

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the C hildren were CHINS due to E.M. being a victim of sexual violence by a family member, the C hildren ’s inconsistency in attending school, the Children reporting incidents of abuse and domestic violence in the home , and Mother not hav ing a consistent address. Appellant’s App. Vol. 2 at 120

- 22. Mother now appeals. 

### Discussion and Decision
[12] Mother argues that the juvenile cou rt’s CHINS determination was clearly
err oneous and not supported by the evidence

. To determine if there is sufficient evidence to support a CHINS determination , this court will no t reweigh the evidence or determine the credibility of witnesses. In re A.R

. , 110 N.E. 3d 387, 400 (Ind. Ct. App. 2018). “We consider only the evidence that supports the juvenile court’s decision and reasonable inferences drawn therefrom.” Id. W here a juvenile court’s order contains specific findings of fact and conclusions thereon, we apply a two

- tiered review

. Id. We f irst decide if the evidence supports the findings and then determine if the findings support the judgment. Id. A determination that a child is a CHINS will only be reversed if the determination was clearly erroneous. Id. “A decision is clearly erroneou s if the record facts do not support the findings or if it applies the wrong legal standard to properly found facts.” Id.

[13] A CHINS proceeding is a civil matter, and DCS bears the burden of proving the child is a CHINS by a preponderance of the evidence. Id. Under Indiana Code section 31

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(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 the 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.

[14] A child is adjudicated a CHINS under Indiana Code section 31

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- 3 (a) if the child is under eighteen and is a victim of an offense under section 35

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- 3 , child molest ing, or section 35

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- 1 , rape . Indiana Code section 31

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- 3 further provides under subsection (b) that a child is a CHINS if the child is under ei ghteen and: (1) l ive s in the same household as an adult who : (A) committed an offense described in subsection (a )(1) against a child and is awaiting trial

. Lastly, a child is a CHINS if the child is under eighteen and “lives in the same household as another child who is the victim of an offense described in subsection (a)(1). ” Ind. Code § 31

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- 3(c)(1). Here, the juvenile court found that the Children were CHINS as defined by both Indiana Code section 31

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- 1 and Indiana Code section 31

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[15] Mother argues that the juvenile court erred in finding educational neglect bec ause the C hild ren were attending the Kahn Academy online. She further argues that there is no state law that requires the C hildren to attend an accredited school. The evidence presented to the juvenile court showed that the Children did not regularly att end school and had significant absences. Tr . at 51, 53. Although Mother provided DCS with attendance records beginning in September 2016 and ending in June 2018, no records prior to September 2016 were ever received by DCS. Id . at 53, 54

- 55. Additional ly, while Mother indicated to DCS that the Children were attending Khan Academy, it is not an accredited school and not an equivalent to a school curriculum as required by the Department of Education

. 1 Therefore, the evidence demonstrate d that the C hildre n did not c onsistently attend any educational institution. The evidence present ed support ed the juvenile court’s finding that Mother d id not meet the educational needs of the C hildren as required by Indiana Code section 31

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[16] Mother next contends that the CHINS determination was improper because there was no evidence that the C hildren were in physical harm at the time of removal from the home as the Children did not have any “bruises or signs of

n eglect” at that time. We disag ree. At the time of removal, t he C hildren

1 Kahn Academy is meant to “fill in gaps in [a student’s] education, not to substitute an education curriculum. See https://www.khanacademy.org/resources/out

- of

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- programs ( l ast visited July 17, 2019) . Th e program does not meet the stand ards as stated by the Indiana Department of Education. See https://www.doe.in.gov/standards ( l ast visited July 17, 2019).Court of Appeals of Indiana | Memorandum Decision 18A

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reported to FCM Donahue that abuse and domes tic violence had been occurring in the home and that Mother was aware of the abuse

. Tr

. at 49

. Because Mother knew of the abuse and never intervened, t his evidence sup ported the juvenile court’s findings that the C hild ren ’s physical or mental condition s were seriously impaired or seriously endangered as a result of the Mother’s inability, refusal, or neglect to supply the C hild ren with the necessary supervision under Indiana Code section 31

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.
[17] Mother further a sserts that there wa s no evidence that she was responsible for the sexual abuse of the C hildren. “ A CHINS proceeding focuses on the best interests of the children, not the ‘ guilt or innocence ’ of either parent. ” In re D.P. , 72 N.E.3d 976, 980 (Ind. Ct. App. 2017) (citing In re N.E. , 919 N.E.2d 102, 106 (Ind. 2010) )

. “[W] hile the acts or omissions of one parent can cause a condition that creates the need for court inte rvention, the purpose of a CHINS adjudication is to protect children, not to punish parents. ” M.K. v. Ind. Dep’t of Child Servs. , 964 N.E.2d 240, 244 (Ind. Ct. App. 2012). Evidence was presented at the fact

- finding hearing that Boyfriend raped E.M. sever al times a month for almost two years , beginning when E.M. was only twelve years old

. DNA testing established that Boyfriend was father of E.M.’s child

. Ex. Vol. 3 at 7

- 9, 21. At the time that E.M. was impregnated, she was thirteen years old , and she gave birth on June 2, 2018, to a full

- term infant

. Id . at 21. E.M. and all her siblings and half

- siblings lived together with Mother, A.L., and Boyfriend , in the home in DeMotte for about a year before E.M.’s baby was born

. Tr

. at 50

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The State charge d Boyfriend with r ape, a L evel 3 felony, and c hild m olesting, a L evel 1 felony

. Ex. Vol. 3 at 1 3 , 1 9

.
[18] The juvenile court found that Boyfriend was charged with r ape under Indiana Code section 35

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- 1 and c hild m olesting under Indiana Code section 35

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- 3 ; the alleged victim was E.M. Appellant’s App. Vol. 2 at 121. The juvenile court further found , “ T here is ample evidence for the court to find that [Boyfriend] likely committed sexual molestation, sexual battery, and/or sexual misconduct with a minor child as defined by Indiana law.” Id

. Mother denies knowing that E.M. was even pregnant, but E.M. did not move to Chicago until February or March 2018 , when she was at least six months pregnant

. Tr

. at 49; Ex. Vol. 3 at 27

- 48. Mother’s cl aim that she was not aware that her daughter was pregnant is not reasonable based on this evidence.

[19] Under Indiana Code section 31

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- 3(a), a child is adjudicated a CHINS if the child is under eighteen and is a victim of child molesting or rape ; u nder subsection (b) , a child is a CHINS if the child is under eighteen and live s in the same household as an adult who committed child molesting or rape against a child and is awaiting trial ; and , u nder subsection (c), a child is a CHINS if the child is under eighteen and lives in the same household as another child who is the victim of child molesting or rape

. Here, the evidence showed that Boyfriend had been charged with rape and child molesting and the alleged victim was E.M. At the time that these crimes were alleged to have occurred, all of the Children lived in the same househo ld with Mother and Boyfriend . ThisCourt of Appeals of Indiana | Memorandum Decision 18A

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evidence was sufficient to support the juvenile court’s finding that the Children were CHINS under Indiana Code section 31

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[20] Finally, Moth er argues that there was no evidence that the coercive intervention of the juvenile court is needed to protect the Children . The S tate rebuts this argument stating that Mother refused to participate in services without a court order. Appellee’s Br. at 22. We agree. To determine if coercive intervention is necessary , the juven ile court must determine if the parents must be coerced into providing or accepting necessary treatment for their child. In re E.K. , 83 N.E.3d 1256, 1262 (Ind. Ct. App. 2017 ) , trans. denied

. Here, Mother told FCM Donahue that she would not cooperate with service providers unless she was required by court order. Tr . at 55. It is , therefore, clear that the only way the C hildren w ould receive the necessary care and treatment needed w ould be through court intervention. There wa s sufficient ev idence that the coercive intervention of the juvenile court wa s necessary to protect the Children.

[21] Based on the evidence presented at the fact

- finding hearing, we conclude that t he findings of the juvenile court we re not clearly erroneous , and the ju venile court’s findings support its j udgment that the C hildren were CHINS . The evidence of abuse, both physical and sexual, and of neglect wa s not only sufficient, it wa s overwhelming

. We, therefore, affirm the juvenile court’s judgment.

[22] Affirmed. Vaidik, C

. J. , and Altice, J. , concur.