In the Matter of: Am.K., A Child In Need of Services and A.M. v. Marion County Department of Child Services and Child Advocates, Inc. , 983 N.E.2d 210 ( 2013 )

FILED
Feb 20 2013, 9:29 am
FOR PUBLICATION CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
AMY KAROZOS PATRICK M. RHODES
Greenwood, Indiana Indiana Department of Child Services
Indianapolis, Indiana
RUTH JOHNSON ROBERT J. HENKE
Marion County Public Defender Agency DCS Central Administration
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF: A.M.-K. (Minor Child), )
A CHILD IN NEED OF SERVICES, )
)
and )
)
A.M. (Mother) , )
)
Appellant-Respondent, )
)
vs. ) No. 49A02-1207-JC-533
)
MARION COUNTY DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner, )
)
and )
)
CHILD ADVOCATES, INC., )
)
Appellee-Guardian Ad Litem )
APPEAL FROM THE MARION SUPERIOR COURT, JUVENILE DIVISION
The Honorable Marilyn A. Moores, Judge
The Honorable Danielle P. Gaughan, Magistrate
Cause No. 49D09-1109-JC-35447
February 20, 2013
OPINION – FOR PUBLICATION
BAKER, Judge
A.M. (Mother) was involuntarily committed for emergency mental health
treatment, and the Indiana Department of Child Services (DCS) filed a petition alleging
that each of Mother’s two children was a child in need of services (CHINS). The
juvenile court determined that A.M.-K. was a CHINS, and Mother was ordered to
participate in various services and to abide by the recommendations of mental health
professionals, including taking all medications as prescribed.
Mother challenges the propriety of the parental participation order. More
particularly, Mother claims that because the DCS failed to file a parental participation
petition, the juvenile court lacked the authority to order her participation in any services
or treatment. Mother also claims that the order directing her to take any medications as
prescribed violates her constitutional right to decide her own mental health treatment.
We conclude that Mother was adequately notified of the DCS’s recommended
plan of participation and that Mother acquiesced to the trial court’s authority to enter a
parental participation order. However, we also conclude that the DCS failed to present
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sufficient evidence to overcome Mother’s liberty interest in deciding her own treatment
when Mother objected to the order and presented evidence of her concerns. Accordingly,
we affirm in part, reverse in part, and remand for additional proceedings consistent with
this opinion.
FACTS
In September 2011, Mother was staying at a hotel in Indianapolis with her nine-
year-old daughter S.M. when she decided to go swimming in a nearby creek. Mother left
S.M. with the hotel’s owner, whom Mother knew, and walked to the creek, stripped down
until she was naked, and swam until she suffered a stomach cramp and had to get out.
Someone observed Mother lying in the grass naked and called the police.
When Officer Steven Jones from the Indianapolis Metropolitan Police Department
(IMPD) arrived, he located Mother behind the hotel “sitting completely nude on the
sidewalk.” Tr. p. 56. Officer Jones asked Mother why she was not wearing any clothes,
and she replied that “she wanted to be nude and she was allowed to be nude.” Id.
Although Mother initially refused to find her clothes, she allowed herself to be covered
with a blanket and eventually got dressed. Officer Jones became concerned for Mother’s
mental health when he observed that Mother was demonstrating odd behavior, such as
“emotional swings from . . . crazed laughter to yelling into the sky . . . ‘in the name of
Jesus Christ I have seen the light.’” Id. Officer Jones detained Mother to take her to a
hospital for mental health evaluation and treatment.
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DCS family case manager Amy Ryan (FCM Ryan) also responded to the scene
after the DCS received a report that S.M. “was left alone in a hotel room while [Mother] .
. . swam in a drainage ditch naked.” Id. at 66. When FCM Ryan arrived, Mother was
already dressed, and S.M. was sitting in the back of a police vehicle. S.M. “looked
scared” and asked FCM Ryan “why her mom was crazy.” Id. at 72. Mother told FCM
Ryan that she had removed her children from school to come to Indianapolis “for a
natural healing experience.” Id. at 67. She stated that she left six-year-old A.M.-K. with
his father “a few weeks prior to [the incident].” Id. Mother also admitted to having
attempted suicide in September 2009 by overdosing on prescription medications and
alcohol. As a result of Mother’s suicide attempt in 2009, S.M. had previously been
adjudicated a CHINS, but the case closed in approximately March 2010.
When FCM Ryan asked Mother about any current drug use, Mother replied, “I am
clean from my sin and what I did is within.” Tr. p. 67. FCM Ryan also discussed
Mother’s mental health treatment to that point. Mother told FCM Ryan that she had been
diagnosed with “post-traumatic stress disorder, a pseudo seizure disease and a neuro
cardio disease.” Id. at 68. Mother also told FCM Ryan that she “had stopped taking her
medication a week ago.” Id. However, Mother did not indicate what disease that
medication had been prescribed to treat.
FCM Ryan substantiated the allegation of neglect as to Mother because “[S.M.]
was left alone in the hotel room and . . . [Mother] was admitted to [a] psychiatric facility,
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[leaving] no one to care for [S.M. and A.M.-K.] at the time” and due to “concerns about
[Mother’s] mental health and her ability to care for the children.” Id. at 68-69.
Mother was involuntarily committed for mental health treatment for several
weeks. She was diagnosed with bipolar disorder and prescribed lithium. However,
Mother was taken off the lithium and prescribed Geodon because the lithium had
elevated her blood pressure and caused an episode with Mother’s heart condition.
However, upon Mother’s discharge from commitment, Mother’s primary care physician,
Dr. Charlie Williams, took her off the Geodon and told her to schedule a follow-up
appointment in a year. Mother claimed that she also had “a bad allergic reaction” to the
Geodon and that it “made [her] very sick . . . to where [she] couldn’t sleep and where
[her] heart was puttering.” Tr. p. 142-43.
Once she was discharged, Mother began having supervised parenting time with
her children, but her parenting time was suspended in December 2011. Prior to the
suspension of her parenting time, Mother had asked that she be permitted to see her
children individually instead of together. In March 2012, Mother participated in a
psychological evaluation, which recommended in part that Mother participate in a
psychiatric evaluation to determine if she would benefit from anti-psychotic medication.1
Mother also began individual counseling with Tatenda Mandaza, a home-based therapist
referred by the DCS.
1
Mother may have been diagnosed with schizophrenia as a result of the psychological evaluation.
5
A fact-finding hearing on the CHINS petition was held over two days in April and
May 2012.2 At the hearing in April, Mandaza testified that Mother had experienced
“minimal progress” in therapy. Tr. p. 75. Mandaza noted that Mother’s “thinking
patterns sometimes tend to be egocentric and . . . it was hard for her to differentiate what
was best for her children and what she wanted.” Id. at 83. Mother would also become
“overwhelmed” regarding the need to discipline both children during visits. Id. Mandaza
recommended that Mother continue therapy and participate in a psychiatric evaluation.
Mandaza recommended the evaluation because Mother had been “diagnosed with
different variations of a psychotic disorder by more than one professional” 3 and because
“research shows that medication sometimes is helpful in treatment.” Id. at 76. Mandaza
further stated her belief that “at this point . . . therapy alone is not going to be as
effective.” Id. at 78.
A.M.-K.’s stepmother testified that she had previously observed Mother acting
“not all there” once when Mother and S.M. dropped off items at her home for A.M.-K.
Id. at 92. More specifically, Mother talked to herself and repeatedly said, “I’m just doing
what God’s asking me to do.” Id. Mother also told the stepmother that “when she gets in
the car she just does what God tells her to and closes her eyes and she automatically gets
to her destination somehow.” Id. at 93. Additionally, Mother threatened to jump off the
balcony, and she and S.M. left after Mother was convinced to come inside. However, a
2
The juvenile court also heard evidence on the custody modification petition that S.M.’s father had filed.
3
Mother told Mandaza that she had been “misdiagnosed with schizophrenia.” Tr. p. 84. Mandaza also
learned through documentation provided to her from the DCS that Mother had been diagnosed “as bipolar
with psychotic features.” Tr. p. 84.
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few minutes later, A.M.-K.’s stepmother overheard Mother and S.M. talking outside, and
S.M. told Mother she was hungry. In response, Mother “gave [S.M.] some wood pieces, .
. . and she asked her to chew on it.” Id. When S.M. refused, Mother chased S.M. around
the yard to try to get her to chew on the wood pieces.
Mother disagreed with the bipolar diagnosis, claiming that she was only diagnosed
with a psychiatric condition “because [she] told a doctor who did not have [her] same
religious beliefs that [she] believed in God.” Tr. p. 140. Mother also consistently stated
that she is “unwilling” to get a psychiatric evaluation because the “sole purpose of seeing
a psychiatrist” is for a prescription. Id. at 17, 77. Mother believes that taking
medications is “against [her] religion” and that the medications could produce side effects
that interfere with her heart condition. Id. at 17. And although Mother testified in April
that she would participate in “any type of therapy” and that she had already been seeing
another therapist weekly prior to the commencement of the CHINS case because she had
been experiencing pseudo seizures, Mandaza testified that Mother “vacillates between
wanting to participate and . . . saying that she doesn’t want to see [Mandaza] again or
would not like to be involved in services.” Id. at 17, 77. Moreover, at the May fact-
finding hearing on the CHINS petition, Mother’s therapy with Mandaza had been
discontinued, and Mother was resistant to continuing further therapy.
After the conclusion of the fact-finding hearing, the juvenile court found that
A.M.-K. was a CHINS but modified custody for S.M. to her father and consequently
found that S.M. was not a CHINS. A dispositional hearing was held on the CHINS case
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on June 13, 2012. Prior to the dispositional hearing, the DCS submitted a pre-
dispositional report but failed to submit a parental participation petition as to Mother.4
Nevertheless, at the hearing, the DCS recommended that Mother participate in a number
of services, including a psychiatric evaluation, that Mother follow all recommendations
from that evaluation, and that Mother meet all of her personal, medical, and mental health
needs, including taking prescription medications as prescribed. The Guardian Ad Litem
concurred in these recommendations.
Mother raised no objections to most of the DCS’s recommendations, but she
specifically objected to the provision directing her to take all medications as prescribed.
In response, the juvenile court stated:
I found the child to be a child in need of services. . . . [Q]uite a bit of the
fact-finding was about your mental health issues. . . . I quite frankly find
there’s a rational basis for a psychological evaluation and psychiatric exam
and if they order medication, they order medication. Now, am I coming to
your house and forcing it down your throat? No, I’m not.
Tr. p. 167. The juvenile court then ordered Mother to comply with the DCS’s
recommended plan of participation in its entirety. Mother now appeals.
DISCUSSION AND DECISION
We first observe that Mother is not challenging the juvenile court’s determination
that A.M.-K. is a CHINS. Rather, Mother only challenges the authority of the juvenile
court to enter a parental participation order generally when the DCS failed to file a
4
The DCS had previously submitted a parental participation petition with regard to A.M.-K.’s father.
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parental participation petition and specifically one that directs Mother to take any
medications as prescribed.
I. Failure to File Parental Participation Petition
We first examine Mother’s contention that because the DCS failed to submit a
parental participation petition prior to the dispositional hearing, the trial court was
without authority to enter a parental participation order at all. Indiana Code section 31-
34-16-3 provides:
A petition seeking participation of a parent, guardian, or custodian must be
entitled “In the Matter of the Participation of _________ the Parent,
Guardian, or Custodian of _________.” The petition must allege the
following:
(1) That the respondent is the child’s parent, guardian, or custodian.
(2) That the child has been adjudicated a child in need of services.
(3) That the parent, guardian, or custodian should:
(A) obtain assistance in fulfilling obligations as a parent, guardian,
or custodian;
(B) provide specified care, treatment, or supervision for the child;
(C) work with a person providing care, treatment, or rehabilitation
for the child; or
(D) refrain from direct or indirect contact with the child.
Once such a petition is filed, the juvenile court is to hold a hearing on the petition
concurrently with either a dispositional hearing or a hearing to modify the dispositional
decree. Ind. Code § 31-34-16-4. One of the purposes of a dispositional hearing is to
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consider “the necessity, nature, and extent of the participation by a parent, a guardian, or
a custodian in the program of care, treatment, or rehabilitation of the child.” I.C. § 31-
34-19-1(a)(2).
As Mother suggests, a few cases from different panels of this Court have held that
the filing of a parental participation petition is jurisdictional and that, without it, the
juvenile court has no authority to order parental action. See, e.g., Mikel v. Elkhart Cnty.
Dep’t of Public Welfare, 622 N.E.2d 225, 229 (Ind. Ct. App. 1993); In re M.R., 934
N.E.2d 1253, 1256 (Ind. Ct. App. 2010). However, we find these cases distinguishable
from the present case.
In Mikel, this Court reversed a juvenile court’s finding that a father was in
contempt for failing to abide by previous orders of the juvenile court entered at the initial
hearing and at the time the children were adjudicated as CHINS. 622 N.E.2d at 229. A
separate dispositional hearing was not held. Brief of Appellant at 9, Mikel v. Elkhart
Cnty. Dep’t of Public Welfare, 934 N.E.2d 1253 (1993) (No. 20A03-9303-CV-105).
And in M.R., we vacated a parental participation order as to an alleged father in part
because a parental participation petition had not been filed but also because the man had
not yet been adjudicated as a parent to one of the children involved in the CHINS
proceedings. 934 N.E.2d at 1255-56.
In the instant case, although the DCS failed to file a formal parental participation
petition as described in Indiana Code section 31-34-16-3, it did file a predispositional
report that included all of its recommendations for the proposed plan of care, treatment,
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rehabilitation, and placement of A.M.-K. Appellant’s App. p. 146-47. The
predispositional report also summarized these recommendations for how Mother should
obtain assistance in fulfilling her obligations as a parent, guardian, or custodian and
explained why such assistance was necessary. Id. at 147. The DCS family case manager
who prepared the predispositional report was present at the dispositional hearing and
available for cross-examination about the recommendations contained within the report.
Tr. p. 163. Finally, Mother specifically agreed to almost all of the recommendations,
objecting only to the provision of one of the recommendations that required Mother to
take any medications as prescribed. Id. at 164-65.
Based on these circumstances, we cannot say that the juvenile court erred when it
entered the parental participation order. It appears that the DCS’s predispositional report,
although it did not have the statutorily-required title for a parental participation petition,
nonetheless substantially complied with the requirements of Indiana Code section 31-34-
16-3. Additionally, Mother acquiesced in the procedures utilized by the juvenile court in
ordering her to complete various services and treatments. Thus, we conclude that the
DCS’s failure to file a parental participation petition does not require that we vacate the
participation order in this case.
II. The Order to Take Medications as Prescribed
Mother next contends that the juvenile court’s order that she take all medications
as prescribed violates her constitutional right to direct her own medical treatment.
Indeed, our Supreme Court has recognized that competent adults are entitled to make
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informed decisions about their medical care and that of their children. In re Lawrance,
579 N.E.2d 32, 38-39 (Ind. 1991). However, this right is not without limitation. For
example, a parent may not refuse life-saving treatment for one’s child, and a court may
order that an adult be compelled to take medications in certain instances. See Schmidt v.
Mut. Hosp. Servs., Inc., 832 N.E.2d 977, 981-82 (Ind. 2005) (recognizing that parents
can generally refuse their own medical treatment but cannot make martyrs out of their
children); In re Mental Commitment of M.P., 510 N.E.2d 645, 647-48 (setting out the
requirements for a forced medication order in an involuntary commitment case).5
A juvenile court generally has broad discretion in determining the programs and
services in which a parent should participate in order to pursue reunification with the
parent’s child. In re A.C., 905 N.E.2d 456, 464 (Ind. Ct. App. 2009). Nevertheless, we
have held that “the requirements must relate to some behavior or circumstance that was
revealed by the evidence.” Id. For the vast majority of provisions in parental
participation orders, this is all that is required. However, where, as here, a parent objects
to an order directing the parent to take all medications as prescribed and presents
5
To obtain a forced medication order in an involuntary commitment case, the State must prove by clear
and convincing evidence that:
1) a current and individual medical assessment of the patient’s condition has been made;
2) that it resulted in the honest belief of the psychiatrist that the medication will be of
substantial benefit in treating the condition suffered, and not just in controlling the
behavior of the individual; 3) and that the probable benefits from the proposed treatment
outweigh the risk of harm to, and personal concerns of, the patient.
M.P., 510 N.E.2d at 647. Moreover, the trial court must determine that the treating physician has
evaluated and rejected every alternative form of treatment because no less restrictive treatment exists and
that the proposed treatment is reasonably related to the reason for the individual’s commitment. Id. at
647-48. Finally, the order may not be indefinite. Id. at 648.
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evidence of side effects and religious beliefs supporting that objection, we believe that
additional evidence is necessary to overcome the parent’s constitutionally protected
liberty interest in remaining free of unwarranted intrusions into the mind and body. See
M.P., 510 N.E.2d at 646.
In the instant case, the evidence demonstrated that Mother suffers from serious
mental health issues for which she has received various diagnoses and that, as a result,
A.M.-K. was a CHINS. Tr. p. 38, 68, 87; Appellant’s App. p. 135-39. However, Mother
offered uncontradicted evidence that the anti-psychotic medications she was prescribed
had serious side effects that interfered with her heart condition, and she also raised a
religious objection to the medications. Tr. p. 142, 165, 168, 173. On the other hand, the
DCS presented no testimony from a psychiatrist that suggested, let alone proved, that an
order directing Mother to take any particular medication was necessary in order for
Mother to be stable enough to adequately parent A.M.-K.
The consequences for failing to abide by a parental participation order are indeed
harsh; such a failure could potentially lead to the termination of Mother’s parental rights.
A.C., 905 N.E.2d at 464-65. In light of the possible consequences and Mother’s
protected liberty interest in directing her own mental health treatment, we cannot say that
the DCS presented sufficient evidence to support the trial court’s order with regard to
Mother taking all medications as prescribed. Moreover, we believe that there is an
inherent problem where, as here, the parental participation order does not direct Mother
to take a specifically recommended medication on the basis of a doctor’s evaluation of
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Mother’s mental health but requires Mother to take any and all medications without
regard to her objections and the possible side effects.
That being said, we also conclude that the DCS presented sufficient evidence to
support the juvenile court’s remaining orders, including the requirement that Mother
participate in a psychiatric evaluation. Such an evaluation does not raise the same
constitutional concerns as an order to take all medications as prescribed, and we find that
this order was reasonably related to the evidence presented at the fact-finding and
dispositional hearings. And once such an evaluation takes place, the DCS may well have
sufficient information to move for a modification of the dispositional order to require that
Mother take specifically recommended medications deemed necessary at that time for her
reunification with A.M.-K.
The judgment of the juvenile court is affirmed in part, reversed in part, and
remanded.
RILEY, J., and BARNES, J., concur.
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