In the matter of Se.G. and So.G.: R.N. (Mother) v. The Indiana Department of Child Services (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 16 2016, 6:00 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan E. Schultz Gregory F. Zoeller
Corydon, Indiana Attorney General
Robert J. Henke
Deputy Attorney General
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the matter of Se.G. and So.G.: May 16, 2016
Court of Appeals Case No.
31A01-1509-JC-1476
R.N. (Mother),
Appeal from the Harrison Circuit
Appellant-Respondent, Court
The Honorable John T. Evans,
v.
Judge
The Honorable Lisa Garcia Reger,
The Indiana Department of Juvenile Referee
Child Services,
Trial Court Cause No.
Appellee-Petitioner. 31C01-1504-JC-28
31C01-1504-JC-29
Vaidik, Chief Judge.
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Case Summary
[1] R.N. (Mother) and K.G. (Father) divorced shortly after K.G.’s father molested
one of their children in the presence of Mother. As part of the divorce, Mother
agreed that Father would have sole custody of the children and that she would
not have any parenting time. The children lived with Father and his new wife.
Four years later, the children were adjudicated children in need of services
(CHINS) after Father murdered their stepmother and then killed himself while
the children were home. The trial court ordered that Mother, who had not seen
her children in four years, could not start visiting them until recommended by a
psychologist.
[2] The evidence is sufficient to support the CHINS determination—in particular,
the court’s conclusion that treatment is unlikely to be provided or accepted
without the coercive intervention of the court. Mother previously failed to
intervene when her child was being molested by his grandfather and she has not
had contact with the children in the four years since that allegation was
substantiated by the Indiana Department of Child Services (DCS). Further,
although the dispositional order delays visitation until Mother and the children
complete additional therapy, we find that the order “provides a reasonable
opportunity for participation by the child’s parent” according to Indiana Code
section 31-34-19-6. We therefore affirm the CHINS adjudication and
dispositional order.
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Facts and Procedural History
[3] Mother and Father had two sons, So.G., born in December 2007, and Se.G.,
born in February 2009. In September 2011, while Mother and Father were still
married and living together, DCS investigated an allegation that So.G.’s
paternal grandfather molested him while Mother was in the room. DCS
Family Case Manager (FCM) Channell Hood investigated the allegation.
Shortly thereafter, Father agreed to a safety plan that required him to ensure
that Mother had no unsupervised contact with So.G. unless advance notice was
given to FCM Hood. During the investigation, Mother admitted that she
observed the sexual abuse. According to FCM Hood, Mother said “she didn’t
know what to do. I believe she said she was numb.” Tr. p. 60. In December
2011, DCS substantiated the child-molesting allegation against the grandfather
and substantiated the allegation of “environment life[/]health endangering”
against Mother. Id. at 64.
[4] Four months later, Mother and Father got divorced. As part of the divorce,
Mother agreed that Father would have sole custody of the children and that she
would not have any parenting time. As a result, Mother has not had contact
with the children since 2011. She remarried and currently lives in Louisiana
with her husband and his daughter.
[5] Father also remarried, and the two boys lived with Father and his wife until
April 25, 2015. That day, Father shot and killed his wife before turning the gun
on himself. Four children were in the home during the murder-suicide,
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including So.G. and Se.G. The two boys were in a different part of the house,
so they did not see the shooting. However, after hearing the gunshots, the boys
went to investigate and they discovered their stepmother’s and Father’s bodies.
[6] The police reported the shooting to DCS, and FCM Melinda Coleman came to
the house. She was told that Mother’s parental rights had been terminated and
that Mother was living in either Texas or Louisiana. FCM Coleman placed the
children with Father’s half-brother and his wife. Later that night, FCM
Coleman contacted Mother and learned that her parental rights had not been
terminated after all and that she was living in Louisiana.
[7] DCS filed a CHINS petition two days after the murder-suicide, and a fact-
finding hearing was conducted before a juvenile referee eight weeks later. At
the hearing, the children’s therapist testified that “present contact between the
children and [Mother] will absolutely re-traumatize those kids every single time
[the contact] happens. And I’m not sure we will get through trauma treatment
if we are retriggering them constantly.” Id. at 93. FCM Coleman testified that
the children were not placed with Mother after DCS received her contact
information for several reasons: Mother had not seen the children in four years,
DCS substantiated an allegation against Mother in 2011, the therapist
recommended against contact with Mother, Mother lives in Louisiana, and
DCS is uncertain about Mother’s mental capacity to care for the children.
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[8] Following the fact-finding hearing, the referee submitted a recommended order
finding the children to be CHINS, and the trial court signed the order as
written. The order includes the following findings of fact:
[The children] witnessed the murder of their step-mother and
suicide of their father and are in need of counseling and
treatment to address the trauma therefrom.
[So.G.] has been sexually abused by a family member in the
presence of Mother and [Se.G.]. . . . Both children are in need of
counseling to address this trauma.
The mother has not seen her children for a period of
approximately four years and has taken no steps to amend or
revise the court order which suspends her right to parenting time.
The children are afraid of their mother and are in need of
counseling and treatment to address the four year absence of their
mother. The mother neglected to seek counseling for her
children or herself during that four year period.
Appellant’s App. p. 12. The court, then, concluded that:
The children’s mental health is seriously endangered due to the
acts and omissions of the parents of the children.
*****
The children need care, treatment, or rehabilitation that they are
not receiving; and are unlikely to be provided or accepted
without the coercive intervention of the court.
Id.
[9] At the dispositional hearing, the children’s therapist again testified that contact
with Mother would be harmful. The therapist recommended that Mother enter
into therapy in Louisiana, and once Mother’s therapist had sufficient
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information about Mother’s condition, the two therapists could work together
to develop a plan for reestablishing contact between Mother and the children.
The referee submitted her recommendation, and the court ordered that Mother
complete a psychological evaluation and any recommended treatment, and that
“DCS shall arrange for a licensed psychologist to complete an independent
review of possible visitation between the mother and child[ren] and make a
separate recommendation. Visitation will begin once recommended.”
Appellant’s App. p. 18, 23. Mother now appeals both the CHINS adjudication
and the dispositional order.
Discussion and Decision
[10] Mother makes two arguments: there is insufficient evidence to conclude that the
necessary treatment for the children is unlikely to be provided or accepted
without the coercive intervention of the court, and that the dispositional order
impermissibly allows a psychologist to decide when visitation should begin.1
1
Mother also argues that the referee did not submit sufficient findings to permit child hearsay into evidence
during the fact-finding hearing. See Ind. Code § 31-31-3-6 (requiring juvenile referees to “submit findings and
recommendations in writing to the juvenile court, which shall enter such order as it considers proper”).
However, the child hearsay addressed only the questions of whether the children were endangered and in
need of treatment. On appeal, Mother agrees that the children have been endangered and require treatment.
There is also sufficient evidence without the child hearsay to substantiate Mother’s role in the 2011 molesting
of So.G. by his grandfather. Therefore, the admission of the hearsay, if it was in error, would be harmless
error. Accordingly, we do not address Mother’s arguments regarding the admission of the child hearsay.
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I. Insufficient Evidence
[11] Mother contends that there is insufficient evidence to support the CHINS
determination. 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 the
witnesses. In re S.D., 2 N.E.3d 1283, 1286 (Ind. 2014). Instead, we consider
only the evidence that supports the trial court’s decision and reasonable
inferences drawn therefrom. Id. at 1287.
[12] Here, the trial court adopted the findings and conclusions recommended by the
juvenile referee according to Indiana Code section 31-31-3-6. When the trial
court enters findings of fact and conclusions, we apply a two-tiered standard of
review. In re A.C., 905 N.E.2d 456, 461 (Ind. Ct. App. 2009). We first consider
whether the evidence supports the factual findings and then whether the
findings support the judgment. Id. Findings are clearly erroneous when the
record contains no facts to support them either directly or by inference, and a
judgment is clearly erroneous if it relies on an incorrect legal standard. Id.
[13] In this case, the CHINS petition was filed pursuant to Indiana Code section 31-
34-1-1, which provides:
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
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(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.
[14] Mother agrees that the children have been endangered and require treatment.
She only disputes “the court’s conclusion, without factual recitation, that the
care, treatment, or rehabilitation needed by the children was unlikely to be
provided or accepted without the coercive intervention by the State.”
Appellant’s Br. p. 23. However, both the factual recitation and the record
support this conclusion. First, the court found that “So.G. has been sexually
abused by a family member in the presence of Mother and Se.G.” Appellant’s
App. p. 12. This finding is supported by testimony that DCS substantiated an
allegation of “environment life[/]health endangering” against Mother in 2011
because she did not respond appropriately when she saw her son being
molested by her father-in-law. Tr. p. 64. Second, the court found that Mother,
who had not seen her children in four years, did not take any steps during that
time to amend or revise the court order that suspended her right to parenting
time. It was not clearly erroneous for the court to infer that its intervention will
be required based on Mother’s past inability to intervene on behalf of her
children. Moreover, the children’s therapist testified that contact with Mother
right now “would be traumatic and devastating” and would impede the
children’s recovery. Tr. p. 98-99.
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[15] Nevertheless, Mother argues that this case is factually similar to D.B. v. Indiana
Department of Child Services, 43 N.E.3d 599 (Ind. Ct. App. 2015), trans. denied. In
D.B., the father lived in another state and had not seen his two-year-old
daughter in sixteen months. DCS petitioned to have the child declared a
CHINS when mother was murdered. This Court determined that there was
insufficient evidence to overcome the presumption that the father was a fit and
capable parent. Id. at 606. This case is easily distinguishable from D.B. because
Mother has a substantiated allegation of “environment life[/]health
endangering” from 2011, which was the last time she had contact with the
children.
[16] Based on the findings and the record in this case, it was not clearly erroneous
for the court to conclude that coercive intervention is required, to ensure
appropriate treatment for the children.
II. Dispositional Order
[17] Mother also contends that the court erred when it ordered that visitation would
not start until recommended by a psychologist. Mother argues that under
Indiana Code section 31-34-19-6, it is impermissible for a court to allow a
psychologist to determine when visitation will begin.
[18] Section 31-34-19-6 provides, in relevant part:
If consistent with the safety of the community and the best
interest of the child, the juvenile court shall enter a dispositional
decree that:
*****
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(5) provides a reasonable opportunity for participation by the
child’s parent, guardian, or custodian.
[19] In this case, the court did enter a dispositional order that will ultimately give
Mother a “reasonable opportunity” to participate in the care of her children.
The children’s therapist testified at the fact-finding and dispositional hearings
that contact with Mother would hinder the children’s treatment and that she did
not recommend it at that time. The court, therefore, could have simply ordered
no visitation. But the therapist also testified that visitation could be appropriate
after Mother begins therapy and Mother’s and the children’s therapists can
jointly consider when and how visitation should be introduced. The court
crafted a dispositional order reflecting the therapist’s recommendation for
achieving future visitation. The order also permits visitation to begin as soon as
it is recommended by a psychologist, without requiring an additional court
order. The dispositional order is well supported by the testimony and
recommendation of the children’s therapist, and it provides a reasonable
opportunity for Mother’s participation in light of the children’s present
therapeutic needs.
[20] Mother further argues that “absent specific directions of the court to commence
visitation between [Mother] and her children, there is a risk that there will be no
progress toward reunification[.]” Appellant’s Br. p. 29. This risk is addressed
by the periodic case review. Indiana Code section 31-34-21-2 requires the court
to conduct a formal hearing at least every six months to review the case of each
CHINS under the supervision of DCS. In addition, Indiana Code section 31-
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34-23-1 provides that the court may amend the dispositional order on its own
motion or the motion of a parent, among others. Sections 31-34-21-2 and 31-
34-23-1, taken together, ensure that the court will continue to oversee progress
on the dispositional order, Mother will have an ongoing opportunity to present
evidence regarding visitation, and the court may intervene if necessary.
[21] The dispositional order is in the best interest of the children, and the order
provides Mother with a reasonable opportunity to participate. We, therefore,
find no error.
[22] Affirmed.
Barnes, J., and Mathias, J., concur.
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