In re the Matter of W.S. (Minor Child), P.S. (Father) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 18 2019, 9:29 am

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 Heather M. Schuh-Ogle Curtis T. Hill, Jr. Thomasson, Thomasson, Long & Attorney General of Indiana Guthrie, P.C. Katherine A. Cornelius Columbus, Indiana Robert J. Henke Deputy Attorneys General Indianapolis

IN THE COURT OF APPEALS OF INDIANA

In re the Matter of W.S. (Minor December 18, 2019 Child), Court of Appeals Case No. 19A-JC-963 P.S. (Father), Appeal from the Bartholomew Appellant-Respondent, Circuit Court v. The Honorable Kelly Benjamin, Judge Indiana Department of Child The Honorable Heather Mollo, Services, Magistrate

Appellee-Petitioner. Trial Court Cause No. 03C01-1801-JC-185

Mathias, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-JC-963 | December 18, 2019 Page 1 of 11 [1] P.S. (“Father”) appeals the Bartholomew Circuit Court’s adjudication of his

son, W.S. (“Child”), as a Child in Need of Services (“CHINS”).1 Father argues

that the Bartholomew County Department of Child Services (“DCS”) failed to

prove by a preponderance of the evidence that Child is a CHINS and that no

coercive intervention by the court was warranted. Finding no error on the part

of the trial court, we affirm.

Facts & Procedural History [2] Child was born to Father and Mother on December 8, 2017, at Columbus

Regional Hospital (“CRH”). Tr. pp. 6–7. Child was diagnosed at birth with a

significant cleft palate and cleft lip that caused immediate concern about his

ability to breathe and eat. Tr. p. 52. The palate—the roof of the mouth—

separates the mouth from the sinuses and helps separate food and saliva from

the airway. Id. A cleft palate causes the danger of aspiration, when foreign

objects such as foods or liquids are inhaled into the airway. Tr. p. 62. Babies

with cleft lips struggle to make a seal around a bottle in order to suck. Tr. p. 52.

For these reasons, medical staff at CRH kept Child hospitalized for three weeks

after his birth. Tr. p. 8. During this time, medical staff endeavored to determine

the most effective way to feed Child. Tr. pp. 53–54. They used orogastric and

nasogastric intubation (respectively, “OG” and “NG”) and a specially

1 A.S. (“Mother”) did not file an Appellant’s Brief, and counsel did not file an appearance on her behalf. Pursuant to Indiana Appellant Rule 17(A), however, a party of record in the trial court shall be a party on appeal.

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engineered bottle. Tr. p. 53. Even experienced CRH nurses, however, struggled

to use the bottle to properly feed Child. Tr. p. 53. Family physician Dr.

Amanda Dornfeld (“Dr. Dornfeld”) explained about the tube feeding method:

[A]t first we used what’s called an OG tube, so we put a tube from his mouth into his stomach, and then once we were sure that both sinuses were patent, we switched a couple of days later to an NG tube. . . [W]e were concerned, you know, about sending [Child] home with an NG tube [because] NG tubes can easily come out, and so if it comes out, then you have to put it back in. And if you have to put it back in, you have to understand how to do that, and you have to be sure it’s in the right place, and you have to be sure you have clean and available medical tubing and medical supplies. So after really working with it, we felt we probably didn’t have the resources [at CRH] to teach parents how to take care of this special feeding[.]

Tr. pp. 53–54. [3] Eventually, it was decided that Child should be transferred to Riley Children’s

Hospital (“Riley”) where cleft palate specialists at the Cleft and Craniofacial

Clinic could provide education to Child’s parents regarding tube feeding. Tr. p.

54. Parents were trained in and passed “parent care,” which included

verification that both Father and Mother could “place, pull, test, and feed”

using an NG tube, and Child was discharged from Riley on December 21,

2017. Tr. pp. 34, 39. Child’s discharge instructions were that he was to be fed

by NG tube every three hours, eight times a day. Tr. pp. 10, 42. Riley medical

staff also explained to parents at the time of discharge that Child would need at

least two surgeries to repair his cleft lip and palate, but that the surgeries would

Court of Appeals of Indiana | Memorandum Decision 19A-JC-963 | December 18, 2019 Page 3 of 11

occur only when Child reached an adequate weight. Tr. p. 41. To that end,

Child would see a local pediatrician to monitor his weight gain, and the Riley

Cleft and Craniofacial Clinic would track Child’s weight and progress prior to

surgery. Id. [4] Child arrived home after discharge from Riley on a Thursday; parents attended

a follow-up appointment with Child at CRH on Friday, December 22. Tr. p. 57.

The next appointment, four days later, was cancelled by parents and

rescheduled for the next day, but parents did not bring Child to that rescheduled

appointment. Tr. p. 58. The appointment was again rescheduled, and parents

again did not show. Id. Concerned, Dr. Dornfeld at CRH contacted Riley:

So at that point, I called Riley, because I knew they had an appointment with Riley on Monday [January 1, 2018], with the cleft palate clinic, and I wanted them to know if the family came, please call us [at CRH], because we wanted to get him back in our system. And I wanted them to know that we had not seen him for a week and we were concerned[.]

Tr. p. 58. [5] On December 29, 2017, DCS received a report of potential medical neglect

based on the cancelled, rescheduled, and missed appointments. Tr. p. 25. Child

was not present at the Monday, January 1, 2018, appointment at Riley. Id. at

26. He was also not present at a rescheduled appointment at Riley on January

8, 2018. Id. DCS then received an additional report of medical neglect based on

the missed January 8 appointment. Id. On January 9 and January 11, a DCS

Family Case Manager (“FCM”) spoke to Mother at Child’s home. Tr. pp. 27– Court of Appeals of Indiana | Memorandum Decision 19A-JC-963 | December 18, 2019 Page 4 of 11

28. Mother explained Child was being fed using a bottle because they had run

out of NG feeding tubes. Tr. p. 28. At the second home visit, a DCS supervisor

scheduled a same-day appointment with Child’s primary care physician, Dr.

Dornfeld, and the FCM accompanied Mother and Child to that appointment.

Tr. p. 29. [6] January 11 was the first time Child had received medical care since December

22, 2017, the day after he was discharged from Riley. Child was diagnosed with

failure to thrive, found to be dangerously underweight, and suffering from

severe diaper rash. Tr. pp. 59–60. Dr. Dornfeld admitted Child to CRH at that

time, and Child was removed from the care of his parents. Tr. pp. 29–30. When

the DCS FCM read parents their rights, Father reacted with confusion and

stated, “[D]o what you have to do, it’s not like I see him anyway.” Tr. p. 30. [7] Child has been in the care of placement Serina Roberts (“Roberts”) since

January 15, 2018. Tr. p. 78. A CHINS fact-finding hearing was held on March

12, 2018. At the hearing, Roberts testified that Child had had six or seven

medical appointments in the two months since he had been placed in her care.

Id. Mother attended all of the pediatrician appointments. Id. at 79. Parents had

missed only one appointment at Riley. Id. Parents had not fed Child during any

of these appointments, and there had been no supervised visits between Child

and parents. Id. at 78. Roberts noted that Child’s surgery was coming up on

Thursday, March 15, 2018, and that post-op appointments would be “pretty

much back-to-back after that, with follow-ups.” Id. After testimony at the fact-

finding hearing, the trial court adjudicated Child a CHINS and set a

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dispositional hearing for April 10, 2018. Tr. p. 94. The court explained its

reasoning:

I still think the coercive intervention of the Court is needed, in particular with this young, with this child having a very important surgery coming up on Thursday, and the expectations that the follow through and the appointments will be very, absolutely just as critical for his well being and for his, for his very life.

Tr. p. 95. [8] A dispositional hearing was held on April 10, 2018, and a fact-finding order

was issued on July 10, 2018. Appellant’s App. pp. 6–7. The court’s

dispositional order directing services for the family and continuing wardship of

Child with DCS was issued on April 5, 2019. Appellant’s App. p. 9. Father’s

timely notice of appeal was filed on April 29. Appellant’s App. p. 10.

Discussion & Decision [9] The Fourteenth Amendment to the United States Constitution protects the

fundamental right of a parent to establish a home and raise a child. Bester v. Lake

Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Thus, to be

adjudicated a CHINS, a child must be “seriously impaired or endangered ‘as a

result of the inability, refusal, or neglect of the child’s parent’ to provide

necessary care.” S.K. v. Ind. Dep’t of Child Servs., 57 N.E.3d 878, 883 (Ind. Ct.

App. 2016). The purpose of CHINS proceedings is to protect the child, not to

punish the parent. In re N.E., 919 N.E.2d 102, 106 (Ind. 2010). Furthermore, a

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CHINS adjudication reflects the status of a child and does not establish the

culpability of a particular parent. Id. at 105. The State of Indiana is authorized

under its power of parens patrie to intervene when necessary to protect a child. In

re V.H., 967 N.E.2d 1066, 1072 (Ind. Ct. App. 2012). “The intrusion of a

CHINS judgment. . . must be reserved for families who cannot meet [the child’s]

needs without coercion–not those who merely have difficulty doing so.” In re

S.D., 2 N.E.3d 1283, 1285 (Ind. 2014). [10] CHINS proceedings are civil in nature, and DCS must prove each element by a

preponderance of the evidence. In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012).

In reviewing the trial court’s decision, we consider only the evidence that

supports the trial court’s decision and all reasonable inferences drawn

therefrom; we reverse only upon a showing that the trial court clearly erred and

will not reweigh evidence or judge witness credibility. Id. A decision is clearly

erroneous if the evidence does not support the trial court’s findings or if the trial

court applied an incorrect legal standard. In re D.J., 68 N.E.3d 574, 578 (Ind.

2017). [11] Where the trial court makes findings of fact and conclusions of law in support

of its determination that a child is a CHINS, we apply a two-tiered standard of

review. In re S.D., 2 N.E.3d at 1287. First, we consider whether the evidence

supports the findings, and second, we consider whether the findings support the

judgment. Id.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-963 | December 18, 2019 Page 7 of 11 [12] Here, the juvenile court found Child to be a CHINS pursuant to Indiana Code

section 31-34-1-1. Father argues on appeal that DCS failed to prove by a

preponderance of the evidence that Child’s physical or mental condition was

seriously impaired or endangered as a result of Father’s inability, refusal, or

neglect to supply Child with the necessary food, clothing, shelter, medical care,

education, or supervision and that Father could not provide Child with the

needed care without the coercive intervention of the court. Appellant’s Br. at 4. [13] Father challenges whether the evidence established that Child’s poor physical

condition had been caused by improper feeding by Father. Appellant’s Br. at

11. Specifically, Father disputes the trial court’s findings that the discharge

instructions provided to Father by Riley staff instructed Father to feed Child

only by NG tube. Id. The Riley discharge nurse testified, however, that the

instructions provided specified that Child should be fed only by NG tube. Tr. p.

45. Father’s argument relies on the fact that staff at CRH initially instructed

him and Mother to feed Child using both NG tube and bottle. Appellant’s Br. at

12. Father did not object to Mother feeding Child exclusively by bottle. Tr. pp.

10, 82. Father also did not recognize that Child was not receiving sufficient

nutrition despite being fed by bottle. Father did not assist in Mother’s effort to

obtain feeding tubes. At the time of Child’s removal, Child was one month old,

yet he had not gained weight—in fact, he had lost weight—and he was

suspected of being malnourished. The trial court did not err in concluding that

Child’s physical condition was seriously endangered as a result of Father’s

neglect to supply Child with necessary food.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-963 | December 18, 2019 Page 8 of 11 [14] Also at the time of Child’s removal, Child had missed three appointments with

his local pediatrician and one follow-up appointment with the specialists at

Riley. Tr. pp. 26–27. Father challenges whether this evidence supports the trial

court’s determination that Father’s inability, refusal, or neglect seriously

impaired or seriously endangered Child’s physical condition. Appellant’s Br. at

12. Father explained that he understood the importance of follow-up

appointments, but that his employment schedule had prevented him from

ensuring that Child attended scheduled medical appointments. Tr. p. 83. Father

testified that he did not take advantage of Medicaid transportation because he

preferred to take Child to appointments himself. Tr. p. 88. The trial court heard

testimony from Dr. Dornfield, explaining in reference to Child’s condition

when Child was belatedly seen by a doctor, that “if [Child] hadn’t been found

when he was found, [] he likely could have died.” Tr. p. 69. Child’s physical

condition at the time of his removal by DCS was severe enough that he was

admitted to a hospital that day. Tr. p. 29. Father did not make use of several

resources provided at the time of Child’s discharge from Riley specifically

intended to aid Mother and Father in attending medical appointments: free

Medicaid transportation, gas cards, and work excuses. Tr. p. 35. The trial court

did not err in concluding that Child’s physical condition was seriously

endangered as a result of Father’s inability, refusal or neglect to ensure Child

received medical care. [15] Finally, Father argues that the trial court erred in finding that the coercive

intervention of the court was necessary because Father testified that he was

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“open to cooperating with and agreeable to the services recommended by

DCS,” and because both parents “wanted to do whatever was necessary for

Child to return home.” Appellant’s Br. p. 12. Father observes that we consider

a family’s condition not just when the case was filed, but also when it is heard,

and that “doing so avoids punishing parents for past mistakes when they have

already [been corrected].” In re D.J., 68 N.E.3d at 580–81. Again, we stress that

a CHINS determination is for the purpose of protecting a child, not punishing a

parent. The trial court heard testimony from medical professionals about

Child’s complex and fragile physical condition, and about Father’s failure to

properly understand and address Child’s condition. Dr. Dornfield testified that

she had “real concern that [Child] could have malnourishment, failure to thrive,

and even die from aspiration if he is returned to [to parents’ care].” Tr. p. 69. In

his appeal, Father asks us to reweigh the evidence before the trial court, which

we decline to do. The CHINS statute does not require juvenile courts to “wait

until tragedy occurs to intervene.” Roark v. Roark, 551 N.E.2d 865, 872 (Ind. Ct.

App. 1990).

Conclusion [16] The trial court’s focus was appropriately on whether Father needed to be

coerced into providing or accepting necessary treatment for Child. The trial

court did not err in determining that Father did not demonstrate an ability to

understand the severity of Child’s physical needs nor an ability to consistently

accept and follow through with needed medical care. In this case, the evidence

clearly supports the trial court’s factual findings, and the findings in turn

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support the court’s adjudication of Child as a CHINS. DCS proved by a

preponderance of the evidence that Child’s needs were unlikely to be provided

for without the coercive intervention of the court. Accordingly, we affirm the

trial court’s adjudication of Child as a CHINS. [17] Affirmed.

Robb, J., and Pyle, J., concur.

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