Court of Appeals of Indiana | Memorandum Decision 49A04

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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 Megan Shipley Marion County Public Defender Agency Indianapolis, Indiana A TTORNEY S FOR A PPELLEE 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: B.D

. , W. D. D., and L.D. (Minor Children) Children in Need of Services and W.D. (Father), Appellant

- Defendant , v. 

### The Indiana Department of Child Services, Appellee

- Plaintiff

. July 28, 2017 Court of Appeals Ca se No. 49A04

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- 2 Appeal from the Marion Superior Court The Honorable Marilyn A. Moores, Judge The Honorable Danielle P. Gaughan, Magistrate Trial Court Cause No. 49D09

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Brown , Judge .Court of Appeals of Indiana | Memorandum Decision 49A04

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[1] W.D. (“Father”) appeals the trial court’s order determining that B.D., W. D. D

. , and L.D. (the “ Children ”) are children in need of services (“CHINS”). We revise and restate the issues presented as whether the evidence is sufficient to support the court’s determination. We affirm.



### Facts and Procedural History

[2] C.F. (“Mother”) is the mother of B.D., born in April of 2009, W. D. D., born in April of 2010, and L.D., born in January of 2013

. The Indiana Department of Child Services (“DCS”) received a report in May 2016 that the C hildren were not in school , were dirty, and had be en in the car with Mother and her boyfriend when the car flipped ove r following a chase by police.

[3] On May 1 1 , 2016 , DCS f iled a petition alleging the Children are CHINS. The petition alleged that Mother failed to provide the Children with a safe, stable, and appropriate living environment; while in the care of Mother an d her boyfriend the Children were involved in a high speed law enforcement pursuit which resulted in the vehicle rolling over with the Children inside; the Children were not in car seats or restrained; Mother and the Children are homeless; the Children wer e observed with poor hygiene and disclosed not having eaten since lunch the day before; two of the Children were found to have lice; the Children
were not enrolle d in school due to Mother not being able to verify a residence; and Father ha d not successfull y demonstrated an ability and willingness to appropriately parent the Children and/or is unable to ensure their safety and well

- being while in the care and custody of Mother. Also on that date, petitionsCourt of Appeals of Indiana | Memorandum Decision 49A04

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to establish paternity and provide support were fil ed requesting th at the court enter an order regarding current and past

- due child support and medical support. 1

[4] On August 8, 2016, the court held a fact

- finding hearing at which Mother and Father were prese nt and represented by counsel. Mother admitted that the Children were CHINS. She specifically admitted she needs assistance maintaining stable and suitable housing ; agreed to participate and follow the recommendations of home

- based therapy, home

- based case management, and a family functioning assessme nt ; and admitted the coercive intervention of the court is necessary to ensure the Childr en’s safety and well

- being. The court took Mother’s admission under advisement until the close of evidence regard ing to Father.

[5] Family case manager Denise Deen (“ FC M Deen ”) testified that Mother had legal custody of the Children and Father live d in Virginia. FCM Deen testified the Children have behaviors for which they are in therapy and indicated B.D. throws things and has anger outbursts , L.D. exhibits kicking, hi tting, and crying , and W.D .D . sometimes does not follow directions and need s to be

1 The petitions included in the record state “Comes now the Child by Next Friend [Mother]” but appear to be signed by Father. See Appellant’s Appendix Volume II at 123, 126, 129. Father states in his appellant’s brief that he filed petitions for custody on May 11, 2016, DCS states in its appellee’s brief that Mother filed the May 11, 2016 petitions, and Father states in his reply brief that he signed the paternity petitions on May 11, 2016, that the petitions were confusing because they state they were filed by Mother bu t were signed by him, and that the petitions ended up being unnecessary because it was later discovered that Mother and Father had already c ompleted paternity affidavits. The record includes paternity affidavits signed by Mother and Fathe r at the times of the Children’s births

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redirected. She indicated that, from what she observed, Father loves the Children, that she had a concern about Father being able to appropriately discipline the Children, and she did not observe any redirection from Father during the two visits she supervised

.
[6] When asked if she had any concerns about Father’s ability to provide financially for the Children, FCM Deen replied affirmatively and testified that Father stated h e receives $733 a month and “ I did ask how he would provide for the kids. He said he works on his aunt’s farm and he has money saved is what he told me.” Transcript Volume II at 15 . When asked if Father had arrangements in place for the Children to have therapy in Virginia, she answered “[n]ot that he told me,” and w hen asked if he had schooling arranged for the Children, she answered “[n]ot to my knowledge, no.” Id

. She indicated that Father told her he had therapy with a psychiatrist, she had contacted the therapist and was able to obtain information about Father’s mental health treatment, and the information concerned her in terms of Father’s abilit y to provide for the Children. She also stated that Mother is currently engaged in services in Indiana , meets regularly with her home

- based therapist , visits with the C hildren , is receiving case management , and was referred for a family functioning assessment. When asked if it was in the Children’s best interest to move to Virginia to live with Fat her, FCM Deen answered, “[n]o” and “[a]s I stated before . . . [ M ] other is doing services currently. The plan is reunification. Services just basically started and we have to give [M] other a chance to participate in services to prove herself pretty much. ” Id. at 18

. When askedCourt of Appeals of Indiana | Memorandum Decision 49A04

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“[i]f the Children were to go to live with [F] ather in Virginia would it be your recommendation for that to occur today or with a transition plan,” she answered “I would say with a transition plan. We would need an approved ICPC, State of Virginia to go out and assess [Father’s] home and make recommendation back to Indiana before we can move the kids.” Id. at 18

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. FCM Deen indicated the Children are currently placed in foster care and she was not recommending placement with Fa ther, and when asked if she felt that Father needs to engage in services in order to safely place the Children in his
care , she replied affirmatively and stated she believes he needs to continue his mental health treatment and a family functioning assess ment. She also testified she was unable to recommend case closure and was asking the court to find the Children to be CHINS. On cross

- examination, she testified the car accident involved Mother’s boyfriend, Mother reported they were being chased by the p olice and the car flipped over, and to her knowledge the Children were not wearing safety belt s at the time of the incident.

[7] Father testified he lives alone for free in a house in Virginia owned by his aunt , that he had lived there for probably four mon ths, he previously lived in his aunt’ s house for about five months, and that prior to that he lived with his step father. He stated he that he is not employed and receives a disability check for mental health for $733 per month, his mental health diagnoses are depression and anxiety, he receives medications , and he tried to kill himself around December 2015 or January 2016. He testified that his mother had passed away and he could not deal with it, he began to drink, and he went to anCourt of Appeals of Indiana | Memorandum Decision 49A04

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in

- patient facility i n Virginia for a week . He stated he was not currently drinking, the last time he drank was probably nine months earlier , and he did not do any “drug

– alcohol

. . . treatment .” Id. at 29.

[8] Father indicated he daily takes Trazadone for anxiety and to sle ep and Celexa for depression , and that he was seeing his therapist at the Lake County B ehavioral Center once a month. He testified the last time he was the primary caretaker for the Children was the previous summer, that during that time he was experienci ng depression, and he and the Children were living with his step father in Indiana. When asked how the Children ended up with Mother, Father replied “[t]hey was supposed to go back to school.” Id. at 31. He indicated the Children returned to Mother’s care at the end of July of 2015. As for his move to Virginia, he stated “I couldn’t live up here anymore, couldn’t deal with you know

– things start . . .

. ” Id

. When asked what contact he had with the Children since he moved , Father answered that he ca lled them a few times but that he had no face

- to
- face contact with them between August of 2015 and when this case opened in May of 2016. He indicated he is prepared to have the Children in Virginia, has a place to take them and the means to take care of t hem , and can arrange for the same therapy they are receiving here

.
[9] When asked if he felt he could financially support the Children on a $733 monthly disability c heck, Father answered affirmatively, and when asked “[h]ow much you think it costs to feed th ree children a month,” he answered “[w]ell not that it’s any of your guys’ business, but my aunt and uncle don’t make me pay anything and they got a lot of money so they help me.” Id

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Father indicated that he had established paternity, that he had not filed for custody of the Children “[b]ecause [he] was unaware that [he] needed to,” that it was his intention to request primary ph ysical custody, and that Mother “can come see them if she wants. I’m not trying to keep them from her. I’m trying to p ut them in a place where it’s stable where they can be taken care of.” Id

.
[10] On cross

- examination, Father testified he helped his aunt and uncle take care of their properties , makes repairs, does their yard work and anything they need him to do, and that “it’s not something that will keep me from being able to take care of my kids because I don’t have to help them. I choose to, yes and they understand that.” Id. at 35

- 36. He stated that he lives in a double wide, his water bill is usually about thirty

- three dollars a month, and the electric bill is cheap because it has a brand new heat pump. When asked if he had any other family members living in the area, he responded that his grandmother has lived at her house for thirty

- two years and he h as a nother aunt who owns a farm, works at the BMV, and lives about twenty to twenty

- five minutes away. He indicated he had medical coverage for his therapy through Medicaid, and that he was willing to do whatever is necessary to obtain medical coverage for th e Children and to provide them with the type of therapy the doctors and therapist believe they need.

[11] Father’s step father testified that Father and Mother moved to Indianapolis for maybe three months and then showed up at his doorstep with no place to go with the Children and he took them into his home. He stated the Children lived with him between February and April of 2015 while Father lived inCourt of Appeals of Indiana | Memorandum Decision 49A04

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Virginia, and again from Septemb er through December 2015 , that Father called the Children every day during these periods , and that in December 2015 the Children went back to Mother.

[12] Counsel for DCS argued that it had presented significant mental health concerns regarding Father; that “ [a]t this point you haven’t heard any evidence about his ability to parent in light of his mental health issues and the risks of having three children suddenly in his care who have behavioral issues poses a safety risk for the children in light of those me ntal health issues”; Father lacked the financial ability to provide for the Children and relied on others to provide housing and monetary support ; and there was a large lapse in time in his contact with the Children. Id. at 50. C ounsel further argued tha t “ Mother has custody o f [the Children] , he has not established primary physical custody of them, so if the Court finds no CHINS today then legally the children return to [M] other who is currently engaged in services and making progress ing [sic] , but not r eady for reunification.” Id. at 50

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[13] Father’s counsel argued : “ So, at this point your honor obviously if you find the child is not in need of services as to my client and we, we need to have a custody hearing to deal with some these other issues, but it seems to me that he ’ s done everything that’ s required of him to be a good father. ” Id. at 53. The court t ook the CHINS determination under advisement and scheduled a custody h earing for September 26, 2016.Court of Appeals of Indiana | Memorandum Decision 49A04

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[14] On September 6, 2016, Father filed a motion for custody stating that Mother had entered an admission the Children were CHINS, he denied the Children
were CHINS and wa s willing and able to care for them, paternity for the Children was established after the CHINS case was filed, no order of custody h ad been entered in the paternity cases, and it wa s in the Children’s best interest that legal and physical custody be awarded to him

.
[15] On September 26, 2016, the court held a custody hearing

. Mother testified that she obtained housing in a duplex followi ng the last court date , was working at a gas station , and she participated in the services provided through DCS including home

- based therapy and case management , and that she visited the Children about on ce a week for about six hours. When the court asked , “[b]efore the filing of the child in need of services petition the [C]hildren were for the most of time in your care, is that right,” Mother responded affirmatively. Id. at 66. DCS indicated the Children were in foster care, recommended they remain in their placement, and noted that Mother does have housing and that, once a fire extinguisher and smoke detectors are in place, DCS would look at moving the visits into the h ome and proceeding from there.

[16] T he guardian ad litem (“GAL”) stated she observed the Children about a month earlier and they were doing fine in their foster care, that Mother is doing well with her visits, the Children were looking forward to some normalcy again with Mother, they always talk about Mother and that they miss her , and tha t after the Children move back into the home she w ould like to see them receive home

- based therapy

. She was in agreement with DCS that the Children remainCourt of Appeals of Indiana | Memorandum Decision 49A04

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with Mother

. The court took the CHINS determination and custody d ecision under advisement.

[17] On Nove mber 7, 2016, the court held a ruling hear ing at which it denied Father’s motion for custody and f ound the Children to be CHINS. Mother’s home

- based case manager indicated she was c ontinually working with Mother who was meeting DCS guidelines and safety p lan , and that Mother had maintained employment and obtaine d housing.

[18] In a written order dated November 15, 2016 titled “Ruling Hearing Custody” the court stated “Mother has admitted that the children are in need of services and her admission and the CHIN S finding are under advisement until the resolution of this custody matter.” Appellant’s Appendix Volume II at 144

- 145. The court found that it is not in the Children’s best interests to be uprooted from Indiana, distanced from Mother, and moved to Virgi nia given that Mother has made progress toward reunification; Father has been living out of state for approximately a year and, though he has housing and income, the bond that the Children have with Mother is a closer bond than F ather has been able to main tain, Father chose to leave the state a year ago and has mental health issues ; and it is not in the best interests of the Children that custody be modified.

[19] The court also entered an order finding the Children to be CHINS . Id

. at 102. It accepted Mother’s previous admission , and found that Father needs to continue to participate in therapy

. The order states : “ B ased on Mother’sCourt of Appeals of Indiana | Memorandum Decision 49A04

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admission, the denial under the paternity causes of Father’s Petition for Custody, Father’s mental health issues and the therapeutic needs of the [ C ] hildren, the court finds that the [ C ] hildren are [ CHINS ] and the coercive intervention of the C o urt is necessary. ” Id. at 103.

[20] On December 5 , 2016, the court held a dispositional hearing and entered a dispositional order finding that the responsibility for placement and care of the C hild ren wa s with DCS and that the permanency plan was reunification. A placement review hearing was scheduled for March 2017.


### Discussion
[21] The issue is whether sufficient evidence suppor ts the trial court’s determination that the Children are CHINS. In reviewing a trial court’s determination that a child is in need of services, we neither reweigh the evidence nor judge the credibility of witnesses. In re S.D. , 2 N.E.3d 1283, 1286

- 1287 ( Ind. 2014), reh’g denied. Instead, we consider only the evidence that supports the trial court’s decision and reasonable inferences drawn therefrom. Id. at 1287. As to issues covered by findings, we apply the two

- tiered standard of whether the evidence supports the findings and whether the findings support the judgment. Id. We review remaining issues under the general judgment standard, under which a judgment will be affirmed if it can be sustained on any legal theory supported by the evidence. Id.

[22] Ind. Code § 31

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A child is a child 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. The CHINS statute, however, does not require that a court wait until a tragedy occurs to intervene. In re A.H., 913 N.E.2d 303, 306 (Ind. Ct. App. 2009). Rathe r, a child is a CHINS when he or she is endangered by parental action or inaction. Id. The purpose of a CHINS adjudication is not to punish the parents, but to protect the child. Id.

[23] Father argues there was insufficient evidence that the C hildren’s needs were unlikely to be met without the coercive intervention of the court , and that, while he cannot contest Mother’s admissions that she would be unable to provide safe housing without court intervention , DCS has not shown that he would be un willing or unable to meet the C hildren’s needs without a court order

. He states he signed paternity affidavits when each of the Children were born , that he had done everything he could to gain custody, and that the court’s decision to deny his petition fo r custody does not support t he CHINS determination. W ith respect to his mental health he contends that a CHINSCourt of Appeals of Indiana | Memorandum Decision 49A04

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determination cannot be based on conditions that no longer exist and that he is stable, and that his testimony shows that the coercive intervent ion of the court would not be necessary to ensure the Children continue with therapy and have their needs for housing and financial support met. He also argues that , if this court affirms the CHINS determination , the case should be remanded for a new disp ositional order which complie s with statutory requirements.

[24] DCS responds that Mother’s admissions can serve as a basis for the CHINS adjudications and the court did not base its conclusion solely on Mother’s admission

. DCS further argues that the denial of Father’s custody petition supports the CHINS adjudication, the issue of custody was squarely before the court, and the court’s denial of Father’s request for custody demonstrates the court’s intervention was needed because it was not in the Children’s best inte rests to be placed with Father. It also maintains the dispositional order satisfies statutory requirements, the dispositional order incorporated DCS’s predispositional report which noted Father’s custody request was denied, and the custody order reflects the reasons why the court did n ot place Children with Father.

[25] In his reply brief, Father maintains that his argument on appeal does not depend on whether the court correctly decided the custody issue , that the custody decision does not show the coercive intervention of the court was necessary to provide for the C hildren’s needs , and that a custody decision is not a determination that a parent is unfit or that it would be harmful for a child to be placed with the parent

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[26] We observe that the Indi ana Supreme Court has held that, when one parent wishes to admit and another parent wishes to deny the child is in need of services, the trial court shall conduct a fact

- finding hearing as to the entire matter. In re K.D. , 962 N.E.2d 1249, 1259 (Ind. 2012 ). The court here, consistent with K.D. , conducted a fact

- finding hearing prior to accept ing Mother’s admission. See Matter of D.P. , 72 N.E.3d 976, 982 (Ind. Ct. App. 2017) ( noting that “[t] he necessary takeaway after K.D. is that, although one paren t’ s admission may be sufficient to support a CHINS adjudication, it is not automatically sufficient ” and that “[ t ]he trial court, evidently aware of K.D. ’ s holding, di d not immediately accept Mother’ s admission but took it under advisement pending complet ion of the fact

- finding hearing”).

[27] The record reveals that testimony was elicited at the August 8, 2016 fact

- finding hearing which supports the court’s findings in its November 15, 2016 order that Mother admitted she cannot provide safe and stable housin g for the Children, that Father moved to Virginia in August 2015, he was diagnosed with depression after attempting suicide in December 2015 or January 2016, he receives medication to sleep and for anxiety and sees his therapist once a month, that th e last time the Children were with Father full

- time was the summer of 2015, the Children are in therapy for behavioral issues, and that prior to DCS ’s involvement the Children had been in Mother’s care

. A s Father notes , he is not challenging the deni al of his r equest for custody. While the fact the court declined to place the Children with Father may not, standing alone, render them CHINS, we cannot conclude that the court was precluded fromCourt of Appeals of Indiana | Memorandum Decision 49A04

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considering the fact it had found it was not in the Children’s best interests to be placed with Father, together with the evidence regarding the care provided by Mother and her admission, in considering whether the Children were in need of care, tr eatment, or rehabilitation that they were not receiving and were unlikely to be provided or accepted without the coercive intervention of the court

. See Ind. Code § 31

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. The court in its CHINS ruling f ound that, while Mother had obtained employment and hou sing, she admitted she needs assistance to provide the Children with stable housing and that, based on her admission, together with the court’s decision not to award custody to Father, his health issues, and the Children’s therapeutic needs, that the Child ren were in need of services and the coercive interventi on of the court was necessary. Based upon the record, we conclude that the judgment reached by the trial court is not clearly erroneous.

[28] As for Father’s argument the dispositional order is inadequa te, Ind

. Code § 31

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- 10 provides a dispositional order must include written findings and conclusions regarding in relevant part the needs of the child, t he need for participation by a parent in the plan of care for the child , e fforts made to prevent the child’s removal from or reunite the child with the parent , f amily services that were offered and provided to a child in need of services or the child’s parent , and t he court’s reasons for the disp osition. The statute also provides that the court “may incorporate a finding or conclusion from a predispositional report as a written finding or conclusion upon the record in the court’s dispositional decree.” Ind

. Code § 31

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31

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- 6 provides in part that the court shall ent er a dispositional decree that is “in the least restrictive (most family like) and most appropriate setting available” and “is lea s t disruptive of family life.” The court’s dispo sitional order included findings that reasonable services have been offered a nd are available for preventing or eliminating the continued need for removal of the Children and the possibility of reuniting the family

. Moreover, the order provided that the statements of reasonable efforts made in the reports and documents of DCS were incorporated by reference , the predispositional report filed by DCS on December 5, 2016 state d that Father’s request for custody had been recently denied, and the court ’s November 15, 2016 order denying Father’s motion for custody set forth findings setti ng forth its reasons for not placing the Children with Father, including findings regarding the Children’s best interests, and acknowledged the behavioral issues of the Children, Father’s health issues, and Mother’s admission

. We cannot say the lack of additional or more specific findings in the dispositional order requires reversal or remand.


### Conclusion
[29] For the foregoing reasons, we affirm the trial court’s determination that the Children are CHINS.

[30] Affirmed. May, J., and Pyle, J., concur.