D.H. v. Ind. Dep't of Child Servs. (2024)

ATTORNEYS FOR APPELLEE INDIANA DEPARTMENT OF CHILD SERVICES

Theodore E. Rokita

ATTORNEY FOR APPELLEE KIDS' VOICE OF INDIANA Katherine Meger Kelsey Chief Legal Officer

[¶2] Mother and B.H. ("Father") are the parents of D.H. and K.H.^[1] On February 2, 2021, the Indiana Department of Child Services ("DCS") filed petitions alleging that D.H. and K.H. were CHINS. DCS alleged that: Mother failed to provide the children with a safe, stable, and appropriate living environment free from substance abuse; Mother was arrested on February 2, 2021, for criminal confinement and resisting law enforcement; Mother refused to provide information on where her children could go in her absence; Mother appeared to be under the influence of "wet stuff" or cigarettes dipped in various fluids or laced with additional substances; and the family case manager observed what appeared to be marijuana in the home. DCS also alleged that Mother had a history of illegal drug use; Mother was previously involved with DCS through a prior CHINS case; Mother was currently involved with DCS through an informal adjustment due to illegal drug use while pregnant with K.H.; Mother tested positive for PCP on January 4 and 15, 2021; Mother had a history of domestic violence with Father despite a no contact order; and D.H. disclosed during a forensic interview that Father lived in the home.

[¶3] On June 22, 2021, July 14, 2021, and August 4, 2021, the court held a factfinding hearing. DCS presented the testimony of Tesia Baker, a substance abuse counselor, Jamie Anderson, Mother's therapist, Kristie Teague, a service provider who provided drug screens for Mother, Mother's mother, Mark Blackstad, a home-based therapist, Kimberly Kent, a home-based case worker and parenting educator, Patrick Stimpson, an assessment family case manager, Mother, and Family Case Manager Emily Cherni ("FCM Cherni"). After DCS rested, Mother moved for judgment on the evidence and argued that DCS did not present evidence that she seriously endangered the children during her parenting time, and the court denied the motion.

[¶4] On September 1, 2021, the court issued an order finding D.H. and K.H. were CHINS. That same day, the court entered an Order Regarding Children in Need of Services Fact Finding Ruling Order. On September 15, 2021, the court held a dispositional hearing and entered an Order Regarding a Child in Need of Services Dispositional Decree.

[¶5] Mother argues DCS did not offer evidence that the children suffered a mental or physical condition that was seriously impaired or seriously endangered prior to their removal. She asserts that she was available and willing to provide for the children at least by February 24, 2021, and that she attempted to provide information for her grandmother to pick up the children before they were removed. She asserts she completed "an IOP at Fairbanks in November 2020," participated in services to help with parenting education and mental health, had consistent employment and stable housing and parented the children well. Appellant's Brief at 20. Mother contends that Paragraph 42 of the court's order incorrectly found that she suggested to Kent that Father lives with her. She also argues that DCS failed to demonstrate that coercive intervention of the court was necessary.

[¶6] The State must prove by a preponderance of the evidence that a child is a CHINS. Matter of Eq.W., 124 N.E.3d 1201, 1208 (Ind. 2019). We do not reweigh the evidence or judge the credibility of witnesses and consider only the evidence which supports the trial court's decision and reasonable inferences drawn therefrom. In re S.D., 2 N.E.3d 1283, 1286-1287 (Ind. 2014), reh'g denied. We apply the two-tiered standard of whether the evidence supports the findings and whether the findings support the judgment. Id. We will reverse a CHINS determination only if it is clearly erroneous. In re D.J., 68 N.E.3d 574, 578 (Ind. 2017). A decision is clearly erroneous if the record facts do not support the findings or if it applies the wrong legal standard to properly found facts. Id.

[¶7] Ind. Code § 31-34-1-1 provides:

[¶8] The statute does not require a court to 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 to protect children. Id.

[¶9] To the extent Mother challenges Paragraph 42 of the trial court's order, that Paragraph states: "Mother suggested to Ms. Kent that she currently resides with Father and she told Ms. Kent that [Father] was the father of her children and he could reside in her home if she wanted him to." Appellant's Appendix Volume III at 59. Kent, the home-based case manager and parenting educator, testified:

When we discussed her - where it was just simple questions like where she was living at, who was living in the house, "none of my d - a - m - n business." She was very, very - we're not - I'm not going to tell her who can live in her house, these are the father of her children and I don't have say in that and - and she became verbal[ly] aggressive so I changed the subject.

Transcript Volume III at 90. The record also reveals that Blackstad, the home-based therapist who provided therapeutic visits for Mother, testified that Mother did "[n]ot really" tell him anything about B.H., she was "a little evasive about him," and he "gather[ed] [B.H.] does stay or he stays very nearby." Id. at 69. We cannot say that Paragraph 42, which states that Mother suggested to Kent that she currently resides with Father, is erroneous.

[¶10] Moreover, Mother does not specifically challenge most of the trial court's findings of fact, and the unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.Ct.App. 2007) (failure to challenge findings by the trial court resulted in waiver of the argument that the findings were clearly erroneous), trans. denied.

[¶11] The trial court found that Mother has an extensive history with DCS including prior CHINS and Informal Adjustment cases she has...