In the Matter of: E.W. and I.W. (Minor Children), Children in Need of Services, and C.A. (Mother) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 15 2019, 9:11 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Frederick A. Turner Curtis T. Hill, Jr. Bloomington, Indiana Attorney General of Indiana Frances Barrow Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of: E.W. and I.W. November 15, 2019 (Minor Children), Children in Court of Appeals Case No. Need of Services, 19A-JC-1495 and Appeal from the Monroe Circuit Court C.A. (Mother), The Honorable Holly M. Harvey, Appellant-Respondent, Judge

v. Trial Court Cause Nos. 53C06-1807-JC-525 53C06-1807-JC-526 Indiana Department of Child Services, Appellee-Petitioner

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-JC-1495 | November 15, 2019 Page 1 of 14 [1] C.A. (Mother) appeals the order finding her minor children, E.W. and I.W., to

be children in need of services (CHINS), arguing that the evidence is

insufficient to establish that the coercive intervention of the court is necessary.

Mother also appeals the order granting physical custody of E.W. to his father,

arguing that the juvenile court made erroneous findings of fact and that the

evidence does not support a conclusion that a custody modification is in E.W.’s

best interests. Finding the evidence sufficient and no reversible error with

respect to custody, we affirm.

Facts [2] I.W.1 was born in January 2009 to Mother and L.M. (“I.W.’s Father”), and

E.W. was born in August 2011 to Mother and J.R. (“E.W.’s Father”). Mother

has prior history with the Department of Child Services (DCS), including a

termination of parental rights to two other children in 2007 and a CHINS case

with I.W. in 2009. Mother shared custody of the children with their respective

fathers. Mother lived in Bloomington, I.W.’s Father lived in Texas, and E.W.’s

Father lived in Indianapolis. [3] On July 5, 2018, Mother was arrested for domestic battery, criminal

recklessness, and attempted battery with a deadly weapon; the victim of the

alleged violence was her husband (Husband), who is not the father of either

1 The juvenile court entered an order on September 13, 2018, changing I.W.’s name to I.W.M., but for the sake of clarity, we will refer to the child as I.W. throughout this opinion.

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child. The children were present while she allegedly committed these crimes—

indeed, Mother allegedly hit I.W. in the face multiple times and threatened

Husband and the children with a knife. Mother later admitted that she had

consumed twenty double shots of liquor before she was arrested, that she had

an alcohol abuse problem, and that she had untreated mental health issues.

While in jail, Mother made suicidal statements. The children have observed

Mother impaired and/or unstable on multiple occasions. Husband reported

that Mother has a long history of domestic violence against both him and the

children, alcohol and drug abuse issues, and untreated mental health problems. [4] DCS filed a petition alleging that the children were CHINS on July 9, 2018. At

the initial hearing, held that same day, the juvenile court ordered the children

removed from Mother’s care and custody and that both would be placed with

E.W.’s Father in Indianapolis. After E.W.’s Father reported stress in the home

between his girlfriend and I.W., the juvenile court moved I.W. into foster care

on November 5, 2018. [5] The juvenile court held a factfinding hearing on the CHINS petition on

November 28, 2018. The only witness to testify at the factfinding hearing was

the DCS Family Case Manager (FCM) who investigated the initial allegations.

On December 3, 2018, the juvenile court found the children to be CHINS,

emphasizing the alleged crimes Mother committed in front of the children, her

extreme alcohol consumption, her suicidal statements, and her previous

involvements with DCS. The juvenile court also found as follows:

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Although the Fathers of the Children intend to seek legal and physical custody of the children, they currently have not done so in this case. Without a custody order limiting Mother’s contact for the protection of the children, a CHINS case is needed for that purpose. Therefore the coercive intervention of the court is needed to ensure the safety of the children.

Appealed Order p. 2. [6] Subsequently, both fathers filed motions to modify custody. The juvenile court

held a dispositional hearing on January 22 and February 5, 2019. The February

5 hearing also served as a custody modification hearing for E.W. At that

hearing, the following evidence was introduced:

• • Mother was participating in intensive outpatient therapy (IOP), recovery services, supervised therapeutic visitation, random drug screens, and therapy. She had one positive drug screen for THC in December but had tested clean since that time. • Mother found housing in a shelter and had stable employment. She was on a waiting list for an apartment at the Coburn Place shelter. • Mother’s visits took place in the community because the visit supervisors did not feel her home was appropriate. Mother had an affectionate relationship with the children. At one visit, I.W. reported that other children in E.W.’s Father’s house had been hitting him. Mother “began to escalate” and the visit was ended; during the drive home, Mother made death threats against the FCM and E.W.’s Father and had great difficulty calming down. Tr. Vol. I p. 135. • The children were very close with each other and with Mother. Mother paid them a dollar to go to E.W.’s Father’s home, cry, and say they did not want to be with him anymore. • The children reported that E.W.’s Father had spanked them with a belt. • The FCM had no safety concerns about E.W.’s Father or his home. E.W. was thriving in his father’s care, was happy, and was getting good grades, but his behavior was worsening because he was stressed by the

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legal proceedings. E.W.’s Father has stable employment and his girlfriend provided childcare when he was at work. He reported that Mother had repeatedly threatened him, come to his house uninvited, and said she would blow up the house with the kids inside of it. • Husband testified about Mother’s alcohol abuse and violence. After his testimony, while the court and counsel were discussing scheduling matters, Mother said, “I did not try to kill the dude. You can whisper a little bit more quieter.” The court said, “Hey, button it,” but Mother kept arguing, “he’s just trying to kill my son” and “he over there whispering.” Id. at 126. • At another point in the hearing, while the court and counsel were discussing scheduling matters, Mother said, “Okay, I’m sorry. I’m not trying to be rude or nothing . . . but, my child is in an abusive home and I cannot sleep. I cannot go another month without eating and worrying about my child being abused.” Id. at 151. She continued to interject and speak out of turn. • Mother admitted that she was an alcoholic and has borderline personality disorder.

[7] On March 28, 2019, the juvenile court entered two orders: (1) the first order

granted custody of E.W. to his father and discharged the CHINS finding as to

E.W.; and (2) the second order was a dispositional order. In the custody order,

the juvenile court found as follows:

2. Mother has inconsistently participated in the recommended referrals of the DCS. Mother is participating in IOP, though has not been consistent in attendance. Her drug screen had been consistently positive for marijuana until November of 2018, and Mother had one other positive screen in December while the remaining screens available to the date of the Predispositional Report were negative. She only recently obtained an AA sponsor. . . . She reported being on track to graduate IOP by the end of February. Mother is visiting with the children regularly. She resides in Julian Center, Court of Appeals of Indiana | Memorandum Decision 19A-JC-1495 | November 15, 2019 Page 5 of 14

and is on the wait list for a family shelter. She has maintained employment.

3. At the time of the dispositional hearing, the circumstances giving rise to the filing of the Petition and the finding of CHINS had not been remedied, and Mother is not yet capable of having [E.W.] returned to her care and custody.

***

5. [E.W.] is doing well since being placed in the custody of his Father. . . . The DCS has not expressed any concerns about [E.W.’s] safety while in Father’s care.

6. Father has demonstrated an ability to care for [E.W.]. He has regular employment. Father has stable housing where he lives with his partner of approximately ten years . . . . [E.W.] is bonded to [Father’s girlfriend] and gets along well with his three step-siblings, [girlfriend’s] children. . . .

7. Mother’s incarceration and failure to remedy the circumstances giving rise to the removal of the children from her home by maintaining stable housing and inconsistently maintaining sobriety represent a substantial and continuing change in circumstances which support a modification of custody. It is in the best interests of the child that Father have physical custody of [E.W.]

***

1. [E.W.’s Father] shall have physical custody of [E.W.] and the parties shall continue to share joint legal custody.

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2. [Mother] shall have parenting time with the children at times and locations as agreed by the parties. . . . [Mother] shall have no unsupervised parenting time.

Appellant’s App. Vol. II p. 38-40. The dispositional order required Mother to

participate with IOP and other recovery services, to participate in weekly

therapy and home-based case management, to refrain from using drugs and

alcohol, and to submit to random drug screens. I.W. remained in foster care.

Mother now appeals the finding that I.W. is a CHINS and the order granting

physical custody of E.W. to his father.

Discussion and Decision I. CHINS Finding [8] Our Supreme Court has explained the nature of a CHINS proceeding and

appellate review of a CHINS finding as follows:

A CHINS proceeding is a civil action; thus, “the State must prove by a preponderance of the evidence that a child is a CHINS as defined by the juvenile code.” In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). We neither reweigh the evidence nor judge the credibility of the witnesses. Egly v. Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We consider only the evidence that supports the trial court’s decision and reasonable inferences drawn therefrom. Id. We reverse only upon a showing that the decision of the trial court was clearly erroneous. Id.

There are three elements DCS must prove for a juvenile court to adjudicate a child a CHINS. DCS must first prove the child is under the age of eighteen; DCS must prove one of eleven

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different statutory circumstances exist that would make the child a CHINS; and finally, in all cases, DCS must prove the child needs care, treatment, or rehabilitation that he or she is not receiving and that he or she is unlikely to be provided or accepted without the coercive intervention of the court. In re N.E., 919 N.E.2d at 105.

In re K.D., 962 N.E.2d 1249, 1253-54 (Ind. 2012) (footnote omitted). [9] Here, DCS alleged that I.W. was a CHINS pursuant to Indiana Code section

31-34-1-1, which provides as follows:

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:

(A) when the parent, guardian, or custodian is financially able to do so; or

(B) due to the failure, refusal, or inability of the parent, guardian, or custodian to seek financial or other reasonable means to do so; 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.

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Our Supreme Court has interpreted this provision to require “three basic

elements: that the parent’s actions or inactions have seriously endangered the

child, that the child’s needs are unmet, and (perhaps most critically) that those

needs are unlikely to be met without State coercion.” In re S.D., 2 N.E.3d 1283,

1287 (Ind. 2014). [10] Mother’s only argument related to I.W.’s CHINS status is that the evidence is

insufficient to show that he needs care, treatment, or rehabilitation that is

unlikely to be provided or accepted without the coercive intervention of the

court. The record reveals that Mother’s parental rights to two other children

were terminated in 2007 and that she had a previous CHINS case with I.W. in

2009. Despite these experiences, Mother continued to drink excessively and

behave violently, resulting in her arrest on serious criminal charges. After her

arrest, she expressed suicidal thoughts; after the children were removed, she

continued to drink alcohol. There was also evidence gathered by the

investigating FCM that the children had both witnessed and experienced

domestic violence at her hands repeatedly over the years. [11] The purpose of a CHINS case is “to help families in crisis—to protect children,

not punish parents.” Id. at 1285. In this case, the evidence shows that I.W.

needed protection and Mother needed help. I.W. was seriously endangered in

Mother’s care and custody and, until DCS and the juvenile court got involved

with this family, Mother was not attempting to address her serious substance

abuse and mental health issues. Under these circumstances, we find that the

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evidence supports the juvenile court’s conclusion that the coercive intervention

of the court was necessary to ensure I.W.’s safety and well-being.

II. Custody of E.W. [12] Next, Mother argues that the juvenile court erroneously awarded physical

custody of E.W. to his father. In its order, the juvenile court entered findings of

fact and conclusions of law. In reviewing the order, we first determine whether

the evidence supports the findings; and second, whether the findings support

the judgment. Harris v. Harris, 800 N.E.2d 930, 934-35 (Ind. Ct. App. 2003).

We owe no deference to the juvenile court’s conclusions of law and will review

those conclusions de novo. Id. at 935. We do, however, give “wide latitude

and deference” to a juvenile court’s decision to modify custody. Collyear-Bell v.

Bell, 105 N.E.3d 176, 183 (Ind. Ct. App. 2018). [13] Indiana Code section 31-17-2-21(a) provides that a court may not modify a

child custody order unless (1) the modification is in the child’s best interests;

and (2) there is a substantial change in one or more of the factors enumerated in

Indiana Code section 31-17-2-8. That statute, in turn, provides in relevant part

as follows:

The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following:

(1) The age and sex of the child.

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(2) The wishes of the child’s parent or parents.

(3) The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.

(4) The interaction and interrelationship of the child with:

(A) the child’s parent or parents;

(B) the child’s sibling; and

(C) any other person who may significantly affect the child’s best interests.

(5) The child’s adjustment to the child’s:

(A) home;

(B) school; and

(C) community.

(6) The mental and physical health of all individuals involved.

(7) Evidence of a pattern of domestic or family violence by either parent.

I.C. § 31-17-2-8.

A. Factual Findings [14] Mother first argues that the juvenile court made factual findings that are not

supported by the evidence. First, the court found that “Mother inconsistently

participated in the recommended referrals of the DCS.” Appellant’s App. Vol.

II p. 38. We agree with Mother that the evidence does not support this finding. Court of Appeals of Indiana | Memorandum Decision 19A-JC-1495 | November 15, 2019 Page 11 of 14

The record shows that Mother was participating with IOP, recovery services,

visitation, random drug screens, individual therapy, and home-based case

management. The State contends that the evidence shows that Mother had not

yet sufficiently benefited from those services. That may be the case, but that is

not what the juvenile court found. While we conclude that this finding is

erroneous, that conclusion does not alter the result of this appeal. [15] Second, the court found that “[t]he DCS has not expressed any concerns about

[E.W.’s] safety while in Father’s care.” Id. at 39. The FCM testified that the

children reported that E.W.’s Father had struck them with a belt approximately

five times, and the FCM then told E.W.’s Father that he needed to change the

way he disciplined E.W.; Father agreed to make the change. While this was,

indeed, an issue that had to be corrected, the FCM did not state that he had

ongoing concerns about E.W.’s safety while in Father’s care. Likewise, while

the FCM noted that the amount of food in the house was “appropriate, but . . .

it could have been more,” tr. vol. I p. 86, he did not conclude that the issue rose

to the level of a safety concern. Therefore, the evidence supports this finding. [16] Third, the court found that “Mother’s incarceration and failure to remedy the

circumstances giving rise to the removal of the children from her home by

maintaining stable housing and inconsistently maintaining sobriety represent a

substantial and continuing change in circumstances which support a

modification of custody.” Appellant’s App. Vol. II p. 40. Mother argues that

her “conduct has been remedied” and that her inability to get housing is a result

of the CHINS case. Appellant’s Br. p. 15. The record shows that Mother has

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absolutely made commendable progress and has had consistent and sincere

participation with her court-ordered services. But it does not show that the

underlying issues have been remedied; instead, it shows that there is more work

to be done before either child can be placed safely into Mother’s unsupervised

care and custody. Therefore, the evidence supports the factual portions of this

finding.

B. Best Interests [17] Finally, Mother argues that the juvenile court erred by finding that it is in

E.W.’s best interests for his father to have primary physical custody. When

reviewing a child’s best interests, the juvenile court must consider the factors

enumerated above in Indiana Code section 31-17-2-8. [18] The evidence shows that E.W. has an affectionate relationship with Mother and

a good relationship with his father. He is well adjusted to his father’s home and

the school that he attends while living there. E.W. is bonded to Father’s

girlfriend and her children. He is also bonded to I.W., and while it is

unfortunate that the brothers have to be separated for now, E.W.’s Father and

his girlfriend are committed to ensuring that the siblings can visit each other

and maintain a relationship. [19] The record reveals that, while Mother is participating with all required services,

she has not yet reached a point where E.W. is safe in her care. There is

evidence of a pattern of domestic and family violence at her hands. There is

also evidence of a serious substance abuse issue and mental health concerns that

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will need continued treatment before E.W. can be placed safely in her care and

custody. [20] Under these circumstances, the evidence supports the juvenile court’s

conclusion that, for now, it is in E.W.’s best interests that custody be modified.

Mother’s arguments to the contrary amount to a request that we reweigh the

evidence and second-guess the juvenile court’s assessment of witnesses, which

we may not do. In the future, if Mother addresses her issues to a point at which

she would be a safe and stable placement for E.W., the parties and the court

can, of course, reconsider the custody arrangement. [21] The judgment of the juvenile court is affirmed.

Kirsch, J., and Crone, J., concur.

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