Court of Appeals of Indiana | Memorandum Decision 49A04-1701-JC-2 | July 28, 2017 Page 1 of 16

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

Megan Shipley

Marion County Public Defender Agency

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: 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 Case No.

49A04-1701-JC-2

Appeal from the Marion Superior 

Court

The Honorable Marilyn A. 

Moores, Judge 

The Honorable Danielle P. 

Gaughan, Magistrate 

Trial Court Cause No.

49D09-1605-JC-1569

49D09-1605-JC-1570

49D09-1605-JC-1571

Brown, Judge.
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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 Children were 

not in school, were dirty, and had been in the car with Mother and her 

boyfriend when the car flipped over following a chase by police. 

[3] On May 11, 2016, DCS filed 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 and 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 were 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 enrolled in school due to Mother not being able to verify a residence; 

and Father had not successfully 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, petitions 
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to establish paternity and provide support were filed requesting that 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 present 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 assessment; and admitted the coercive intervention of the 

court is necessary to ensure the Children’s safety and well-being. The court 

took Mother’s admission under advisement until the close of evidence regarding

to Father. 

[5] Family case manager Denise Deen (“FCM Deen”) testified that Mother had 

legal custody of the Children and Father lived 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, hitting, and 

crying, and W.D.D. sometimes does not follow directions and needs 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 but were signed by him, 

and that the petitions ended up being unnecessary because it was later discovered that Mother and Father 

had already completed paternity affidavits. The record includes paternity affidavits signed by Mother and 

Father 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 he 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 when 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 ability 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 Children, 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 Father, 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 asked 
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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 18-19. 

FCM Deen indicated the Children are currently placed in foster care and she 

was not recommending placement with Father, 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 assessment. 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 

police and the car flipped over, and to her knowledge the Children were not 

wearing safety belts 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 months, he previously lived in his 

aunt’s house for about five months, and that prior to that he lived with his 

stepfather. 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 an 
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in-patient facility in 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 sleep and Celexa 

for depression, and that he was seeing his therapist at the Lake County 

Behavioral 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 experiencing depression, and he and the Children were living with his 

stepfather 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 called 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 

them, 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 check, Father answered affirmatively, and when asked 

“[h]ow much you think it costs to feed three 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. at 33. 
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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 physical custody, and that Mother “can 

come see them if she wants. I’m not trying to keep them from her. I’m trying 

to put 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 has another 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 the 

Children and to provide them with the type of therapy the doctors and therapist 

believe they need. 

[11] Father’s stepfather 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 in 
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Virginia, and again from September 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 mental 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. Counsel further argued that “Mother has 

custody of [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 progressing [sic], but 

not ready for reunification.” Id. at 50-51. 

[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 took the CHINS determination under advisement and scheduled a 

custody hearing for September 26, 2016. 
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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 was willing and able to care for them, paternity for the 

Children was established after the CHINS case was filed, no order of custody 

had been entered in the paternity cases, and it was 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 following 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 once 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 home and proceeding from there. 

[16] The 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 that 

after the Children move back into the home she would like to see them receive 

home-based therapy. She was in agreement with DCS that the Children remain 
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with Mother. The court took the CHINS determination and custody decision 

under advisement. 

[17] On November 7, 2016, the court held a ruling hearing at which it denied 

Father’s motion for custody and found the Children to be CHINS. Mother’s 

home-based case manager indicated she was continually working with Mother 

who was meeting DCS guidelines and safety plan, and that Mother had 

maintained employment and obtained 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 CHINS 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 Virginia 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 Father has been able to 

maintain, 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: “Based on Mother’s 
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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 Court 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 

Children was 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 supports 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 § 31-34-1-1 provides:
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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). 

Rather, 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 Children’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 unwilling or unable to meet the Children’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 for custody does not support the CHINS 

determination. With respect to his mental health he contends that a CHINS 
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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 intervention 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 

dispositional order which complies 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 

interests 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 not 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 Children’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 Indiana 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 accepting

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 

parent’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, did not immediately accept Mother’s admission but took it under 

advisement pending completion 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 housing 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 the 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. As Father 

notes, he is not challenging the denial of his request 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 from 
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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, treatment, 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 § 31-34-1-1. The court in its CHINS ruling found that, while Mother 

had obtained employment and housing, 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 Children were in need of 

services and the coercive intervention 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 inadequate, Ind. Code § 31-

34-19-10 provides a dispositional order must include written findings and 

conclusions regarding in relevant part the needs of the child, the need for 

participation by a parent in the plan of care for the child, efforts made to

prevent the child’s removal from or reunite the child with the parent, family 

services that were offered and provided to a child in need of services or the 

child’s parent, and the court’s reasons for the disposition. 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 § 31-34-19-10(b). Also, Ind. Code § 
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31-34-19-6 provides in part that the court shall enter a dispositional decree that 

is “in the least restrictive (most family like) and most appropriate setting 

available” and “is least disruptive of family life.” The court’s dispositional 

order included findings that reasonable services have been offered and 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 stated 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 setting 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.