In re the Matter of N.M. (Minor Child), M.Y. (Paternal Grandmother) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 15 2018, 10:46 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Luisa M. White Curtis T. Hill, Jr. Luisa White Law, LLC Attorney General of Indiana Lafayette, Indiana Robert J. Henke Abigail R. Recker Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Matter of N.M. (Minor June 15, 2018 Child), Court of Appeals Case No. 17A-JC-3052 M.Y. (Paternal Grandmother)1 Appeal from the Tippecanoe Appellant-Respondent, Superior Court v. The Honorable Faith A. Graham, Judge Indiana Department of The Honorable Tricia L. Child Services, Thompson, Juvenile Magistrate Appellee-Petitioner. Trial Court Cause No. 79D03-1706-JC-138

1 A.M. (“Father”) and S.E. (“Mother”) did not file briefs on appeal. However, pursuant to Indiana Appellate Rule 17(A), a party of record in the trial court shall be a party on appeal.

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Mathias, Judge. [1] M.Y. (“Grandmother”) appeals the Tippecanoe Superior Court’s order

determining that Grandmother’s thirteen-year-old grandson N.M. is a child in

need of services (“CHINS”). Grandmother argues that the trial court erred in

determining that N.M. is a CHINS raising three issues for our review, which we

consolidate and restate as whether there was sufficient evidence to support the

CHINS adjudication. [2] We affirm.

Facts and Procedural History [3] N.M. was born to S.E. (“Mother”) and A.M. (“Father”) in 2003. Grandmother

is N.M.’s paternal grandmother. Father and paternal Uncle (“Uncle”) have

lived with Grandmother for the past eight to ten years. Tr. p. 29. According to

Father, Mother has not seen N.M. since he was six years old. Id. at 30. Mother

has a history of substance abuse-related criminal offenses. Id. at 98. [4] When N.M. was approximately two years old, Father was imprisoned for

“breaking and entering.” Id. at 31. Father has also been convicted of possession

of marijuana and admits to current marijuana use. Id. While incarcerated,

Father entered into an agreement with Grandmother, allowing her to care for

N.M. Id. Grandmother has been N.M.’s caregiver for the majority of his life. Id.

at 37–38.

Court of Appeals of Indiana | Memorandum Decision 17A-JC-3052 | June 15, 2018 Page 2 of 10 [5] Grandmother admits that N.M. needs counseling, but she has not obtained

counseling for N.M. on her own and has failed to take him to intake

appointments. Appellant’s App. p. 37. Grandmother claims she is unable to

take N.M. to appointments due to lack of transportation, but she allowed Uncle

to take her car and is able to find transportation to see her sons in

Crawfordsville. Id. [6] In May 2017, DCS received a report that N.M. was a victim of abuse and

neglect, naming Father as the alleged perpetrator. Id. 19–21. Specifically, after

N.M. refused to clean his room, he walked across the street to his great-

grandmother’s house. Tr. p. 24. Father followed N.M. and dragged him down

two steps and across the street by his leg. Id. at 24–25. Father alleged that he

asked multiple times while dragging N.M., if he “wanted to get up and walk

now.” Id. Father admits that it was “[p]robably not the best course of action . . .

but it was the only option [N.M.] left [him] with.” Id. at 25. As a result from

being dragged across the street, N.M. suffered a bruise and scrapes. Id. at 26.

Father stated that he does not want a relationship with N.M. “unless [he] is

fixed.” Appellant’s App. p. 36. [7] On June 12, 2017, DCS filed its petition alleging that N.M. was a CHINS

because of neglect and abuse. Id. at 19–21. In its petition, DCS alleged that:

5. [Grandmother] believes the family and child [needs] services, and that [N.M.], specifically, needs help with behavioral issues.

6. [N.M.] participated in a forensic interview and disclosed that his father had drug [sic]him across a street for failing to clean his

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room, and that []he suffered injuries to his right arm, buttocks, leg and fingers, which the Father had stepped on. [N.M.] was scared during the incident and was crying, and he is afraid to be around the Father.

Id. at 20. [8] On the same day, the court ordered N.M. to remain in Grandmother’s home

under conditions that DCS would conduct background checks on the

Grandmother, Father, and the paternal Uncle, and daily drop-ins would occur.

Id. at 14. Father was ordered to vacate the home immediately. Id. at 15.

Grandmother failed to comply with the conditions by allowing Father to return

to her home for brief periods. Id. at 37. [9] On September 26, 2017, the trial court held a fact-finding hearing and found

that:

[Grandmother] has been the primary caretaker of [N.M.] since he was two (2) years old as Father was incarcerated and mother has not been involved with [N.M.] for years.

In June of 2017, the child lived with [Grandmother], Father and [Uncle]. One day while [Grandmother] was at work, Father asked [N.M.] to clean his room. [N.M.] left the home and went across the street to his great grandmother’s home. Father followed [N.M.] across the street and drug [him] down two (2) steps and across the street by his leg. [N.M.] suffered injuries including bruises and scratches. This was the second incident of inappropriate discipline that resulted in injuries to [N.M.].

Father admits that he will not quit using marijuana and that he does not want a relationship with [N.M.] unless [he] is fixed.

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Father denies needing services but believes the child probably does.

[Grandmother] admits she has been having discipline issues with [N.M.] and that she babies him. [Uncle] and [N.M.] got into escalated arguments several times and [Grandmother] had to intervene. She also admits that Father’s discipline has been inappropriate on two occasions. [Grandmother] indicated to DCS that she has fear [sic] of Father and that he was loud and aggressive in the home. DCS also observed [Uncle’s] loud and angry behavior in the home. [Grandmother] did not ask [Uncle] or Father to leave the home for the safety of the child until DCS involvement. Even after DCS involvement, [Grandmother] allowed [Uncle] to return to the home until the court ordered that he leave the home of the child.

[Grandmother] admits that [N.M.] needs counseling but she has not obtained counselling for him on her own . . . and has not taken the child for the intake appointment. [Grandmother] blames lack of transportation for failure to obtain services but [Grandmother] allowed [Uncle] to take her car. Additionally, [Grandmother] finds transportation to Crawfordsville to see her sons.

***

[N.M.] need[s] care, treatment or rehabilitation that [he] is not receiving; and that it is unlikely to be provided or accepted without the coercive intervention of the court.

Appellant’s App. pp. 36–37. [10] On October 18, 2017, the court issued an order adjudicating N.M. a CHINS.

Id. at 36–38. The next day, DCS filed a petition for parental participation. On

December 5, 2017, the court granted the petition for the parental participation

and ordered Grandmother to:

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1. Participate in home-based care management.

2. Comply with daily drop ins.

3. Complete a parenting assessment and follow all recommendations.

4. Maintain contact with DCS

5. Sign all releases of information[.]

Id. at 46. Grandmother now appeals N.M.’s adjudication as a CHINS.

Discussion and Decision [11] Our supreme court explained in In re N.E., 919 N.E.2d 102, 105 (Ind. 2010),

that Indiana Code sections 31-34-1-1 through 31-34-1-11 specify the elements

that DCS must prove in order to establish that child is a CHINS: (1) the child is

under the age of eighteen; (2) one or more particular set or sets of circumstances

set forth in the statute exists; and (3) the care, treatment, or rehabilitation

needed to address those circumstances is unlikely to be provided or accepted

without the coercive intervention of the court. [12] In this case, the trial court found that N.M. was a child in need of services

under Indiana Code sections 31-34-1-1 and 31-34-1-2. The first of these sections

provides that a child is a CHINS if, before the child becomes eighteen 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,

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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.

I.C. § 31-34-1-1. [13] The second section provides that a child is a CHINS, if before the child

becomes eighteen (18) years of age:

(1) the child's physical or mental health is seriously endangered due to injury by the act or omission of the child’s parent, guardian, or custodian; 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.

I.C. § 31-34-1-2. [14] “[T]he purpose of a CHINS adjudication is to protect children, not punish

parents.” In re L.C., 23 N.E.3d 37, 39 (Ind. Ct. App. 2015), trans. denied (citing

N.E., 919 N.E.2d at 106). A CHINS adjudication is not a determination of

parental fault but rather is simply a determination that a child is in need of

services and is unlikely to receive those services without the court’s

intervention. Id. (citing N.E., 919 N.E.2d at 105). Because CHINS proceedings

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are civil in nature, DCS must prove by a preponderance of the evidence that a

child is a CHINS as defined by the relevant statutes. Id. [15] On appeal, we must determine whether the evidence presented supports the

findings of the trial court, and second, whether the findings support the

judgment. In re T.S., 906 N.E.2d 801, 804 (Ind. 2009). We do not reweigh the

evidence nor judge the credibility of the witnesses. In re D.F., 83 N.E.3d 789,

796 (Ind. Ct. App. 2017). Instead, we consider only the evidence that supports

the court’s decision and reasonable inferences drawn therefrom. Id. We will

reverse only upon a showing that the decision of the court was clearly

erroneous. Id. [16] In its order, the trial court adjudicated N.M. a CHINS because “[Grandmother]

admits that [N.M.] needs counseling but she has not obtained counselling for

him on her own . . . and has not taken the child for the intake appointment.

[Grandmother] blames lack of transportation for failure to obtain services but

[Grandmother] allowed [Uncle] to take her car.” Appellant’s App. at 37.

Further, “[he] need[s] care, treatment or rehabilitation that [he] is not receiving;

and that it is unlikely to be provided or accepted without coercive intervention

of the court.” Id. [17] Grandmother argues that “DCS did not prove that [t]herapy was necessary.”

Appellant’s Br. at 20. But, Grandmother admitted that N.M. needs therapy. Tr.

p. 47 (“I think he could use some counseling”). Grandmother has not attempted

to find a counselor for N.M. Further, the DCS case manager testified that

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“[N.M.] needs some individual therapy to address some of the trauma within

his relationships with his parents and his caregivers.” Id. at 58. The evidence

supports the trial court’s finding that N.M. needs therapy, and Grandmother

will not take him to counseling sessions without DCS involvement.

Accordingly, N.M. was properly adjudicated a CHINS under Indiana Code

section 31-34-1-1. [18] The trial court also concluded that N.M. is a CHINS under Indiana Code

section 31-34-1-2. DCS proved that N.M.’s physical well-being has been

endangered on multiple occasions. Grandmother attempts to argue that

“isolated incidents of ‘excessive discipline’ do not constitute a CHINS finding.”

Appellant’s Br. at 23. But Grandmother testified that prior to the incident where

Father dragged N.M. across the street, Father “pulled [N.M.] off

[Grandmother’s] bed, picked him up and took him into the living room . . . and

pulled his ear or something and it was bruised.” Tr. pp. 39–40. According to the

family case manager, Grandmother “stated that she knew that the way [Father]

disciplined [N.M.] was unconventional but that she believed that he needed a

parent . . . and [] that type of discipline specifically was concerning and harmful

to [N.M.] and [Grandmother] stated she knew and that she had also felt fearful

of her son for some time just because of his behavior in her home.” Tr. p. 57.

N.M. has stated he is “afraid to be around his Father, because he is aggressive.”

Appellant’s App. p. 15. [19] Moreover, Grandmother is well aware that Father poses a danger to N.M.’s well-

being. Grandmother told DCS about “an incident between Father and [N.M.]

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and [N.M.] and [Uncle] that [she] thought maybe had been inappropriate, but

[she] still allowed [N.M.] to stay in the house with them.” Tr. p. 45. When asked

why Grandmother had not asked Father or Uncle to leave the house, she

responded, “[b]ecause they are my kids and they needed help.” Id. [20] Similarly, Grandmother has allowed Father back into the home after the most

recent incident, even though the trial court ordered her to keep him away from

the house. The record indicates that Grandmother understood Father was not

supposed to return home but admitted that “he came back a few times[.]” Id. at

46. The DCS case manager stated, “I have concerns about [Grandmother’s]

ability to maintain appropriate boundaries with her adult children.” Id. at 60.

The evidence is sufficient to prove that N.M.’s physical and mental health are

seriously endangered, that N.M. needs care, treatment and rehabilitation,

which he is not receiving, and is unlikely to be provided without coercive

intervention of the court. [21] For all of these reasons, DCS proved by a preponderance of the evidence that

N.M. is a CHINS under Indiana Code sections 31-34-1-1 and 31-34-1-2.

Conclusion [22] The trial court’s order adjudicating N.M. a CHINS is supported by sufficient

evidence. We therefore affirm the CHINS adjudication. [23] Affirmed.

Riley, J., and May, J., concur.

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