In re the Matter of N.M. (Minor Child), M.Y. (Paternal Grandmother) v. Indiana Department of Child Services (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 15 2018, 10:46 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Luisa M. White Curtis T. Hill, Jr.
Luisa White Law, LLC Attorney General of Indiana
Lafayette, Indiana
Robert J. Henke
Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Matter of N.M. (Minor June 15, 2018
Child), Court of Appeals Case No.
17A-JC-3052
M.Y. (Paternal Grandmother)1
Appeal from the Tippecanoe
Appellant-Respondent, Superior Court
v. The Honorable Faith A. Graham,
Judge
Indiana Department of The Honorable Tricia L.
Child Services, Thompson, Juvenile Magistrate
Appellee-Petitioner. Trial Court Cause No.
79D03-1706-JC-138
1
A.M. (“Father”) and S.E. (“Mother”) did not file briefs on appeal. However, pursuant to Indiana Appellate
Rule 17(A), a party of record in the trial court shall be a party on appeal.
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Mathias, Judge.
[1] M.Y. (“Grandmother”) appeals the Tippecanoe Superior Court’s order
determining that Grandmother’s thirteen-year-old grandson N.M. is a child in
need of services (“CHINS”). Grandmother argues that the trial court erred in
determining that N.M. is a CHINS raising three issues for our review, which we
consolidate and restate as whether there was sufficient evidence to support the
CHINS adjudication.
[2] We affirm.
Facts and Procedural History
[3] N.M. was born to S.E. (“Mother”) and A.M. (“Father”) in 2003. Grandmother
is N.M.’s paternal grandmother. Father and paternal Uncle (“Uncle”) have
lived with Grandmother for the past eight to ten years. Tr. p. 29. According to
Father, Mother has not seen N.M. since he was six years old. Id. at 30. Mother
has a history of substance abuse-related criminal offenses. Id. at 98.
[4] When N.M. was approximately two years old, Father was imprisoned for
“breaking and entering.” Id. at 31. Father has also been convicted of possession
of marijuana and admits to current marijuana use. Id. While incarcerated,
Father entered into an agreement with Grandmother, allowing her to care for
N.M. Id. Grandmother has been N.M.’s caregiver for the majority of his life. Id.
at 37–38.
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[5] Grandmother admits that N.M. needs counseling, but she has not obtained
counseling for N.M. on her own and has failed to take him to intake
appointments. Appellant’s App. p. 37. Grandmother claims she is unable to
take N.M. to appointments due to lack of transportation, but she allowed Uncle
to take her car and is able to find transportation to see her sons in
Crawfordsville. Id.
[6] In May 2017, DCS received a report that N.M. was a victim of abuse and
neglect, naming Father as the alleged perpetrator. Id. 19–21. Specifically, after
N.M. refused to clean his room, he walked across the street to his great-
grandmother’s house. Tr. p. 24. Father followed N.M. and dragged him down
two steps and across the street by his leg. Id. at 24–25. Father alleged that he
asked multiple times while dragging N.M., if he “wanted to get up and walk
now.” Id. Father admits that it was “[p]robably not the best course of action . . .
but it was the only option [N.M.] left [him] with.” Id. at 25. As a result from
being dragged across the street, N.M. suffered a bruise and scrapes. Id. at 26.
Father stated that he does not want a relationship with N.M. “unless [he] is
fixed.” Appellant’s App. p. 36.
[7] On June 12, 2017, DCS filed its petition alleging that N.M. was a CHINS
because of neglect and abuse. Id. at 19–21. In its petition, DCS alleged that:
5. [Grandmother] believes the family and child [needs] services,
and that [N.M.], specifically, needs help with behavioral issues.
6. [N.M.] participated in a forensic interview and disclosed that
his father had drug [sic]him across a street for failing to clean his
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room, and that []he suffered injuries to his right arm, buttocks,
leg and fingers, which the Father had stepped on. [N.M.] was
scared during the incident and was crying, and he is afraid to be
around the Father.
Id. at 20.
[8] On the same day, the court ordered N.M. to remain in Grandmother’s home
under conditions that DCS would conduct background checks on the
Grandmother, Father, and the paternal Uncle, and daily drop-ins would occur.
Id. at 14. Father was ordered to vacate the home immediately. Id. at 15.
Grandmother failed to comply with the conditions by allowing Father to return
to her home for brief periods. Id. at 37.
[9] On September 26, 2017, the trial court held a fact-finding hearing and found
that:
[Grandmother] has been the primary caretaker of [N.M.] since he
was two (2) years old as Father was incarcerated and mother has
not been involved with [N.M.] for years.
In June of 2017, the child lived with [Grandmother], Father and
[Uncle]. One day while [Grandmother] was at work, Father
asked [N.M.] to clean his room. [N.M.] left the home and went
across the street to his great grandmother’s home. Father
followed [N.M.] across the street and drug [him] down two (2)
steps and across the street by his leg. [N.M.] suffered injuries
including bruises and scratches. This was the second incident of
inappropriate discipline that resulted in injuries to [N.M.].
Father admits that he will not quit using marijuana and that he
does not want a relationship with [N.M.] unless [he] is fixed.
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Father denies needing services but believes the child probably
does.
[Grandmother] admits she has been having discipline issues with
[N.M.] and that she babies him. [Uncle] and [N.M.] got into
escalated arguments several times and [Grandmother] had to
intervene. She also admits that Father’s discipline has been
inappropriate on two occasions. [Grandmother] indicated to
DCS that she has fear [sic] of Father and that he was loud and
aggressive in the home. DCS also observed [Uncle’s] loud and
angry behavior in the home. [Grandmother] did not ask [Uncle]
or Father to leave the home for the safety of the child until DCS
involvement. Even after DCS involvement, [Grandmother]
allowed [Uncle] to return to the home until the court ordered that
he leave the home of the child.
[Grandmother] admits that [N.M.] needs counseling but she has
not obtained counselling for him on her own . . . and has not
taken the child for the intake appointment. [Grandmother]
blames lack of transportation for failure to obtain services but
[Grandmother] allowed [Uncle] to take her car. Additionally,
[Grandmother] finds transportation to Crawfordsville to see her
sons.
***
[N.M.] need[s] care, treatment or rehabilitation that [he] is not
receiving; and that it is unlikely to be provided or accepted
without the coercive intervention of the court.
Appellant’s App. pp. 36–37.
[10] On October 18, 2017, the court issued an order adjudicating N.M. a CHINS.
Id. at 36–38. The next day, DCS filed a petition for parental participation. On
December 5, 2017, the court granted the petition for the parental participation
and ordered Grandmother to:
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1. Participate in home-based care management.
2. Comply with daily drop ins.
3. Complete a parenting assessment and follow all
recommendations.
4. Maintain contact with DCS
5. Sign all releases of information[.]
Id. at 46. Grandmother now appeals N.M.’s adjudication as a CHINS.
Discussion and Decision
[11] Our supreme court explained in In re N.E., 919 N.E.2d 102, 105 (Ind. 2010),
that Indiana Code sections 31-34-1-1 through 31-34-1-11 specify the elements
that DCS must prove in order to establish that child is a CHINS: (1) the child is
under the age of eighteen; (2) one or more particular set or sets of circumstances
set forth in the statute exists; and (3) the care, treatment, or rehabilitation
needed to address those circumstances is unlikely to be provided or accepted
without the coercive intervention of the court.
[12] In this case, the trial court found that N.M. was a child in need of services
under Indiana Code sections 31-34-1-1 and 31-34-1-2. The first of these sections
provides that a child is a CHINS if, before the child becomes eighteen 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,
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clothing, shelter, medical care, education, or supervision;
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.
I.C. § 31-34-1-1.
[13] The second section provides that a child is a CHINS, if before the child
becomes eighteen (18) years of age:
(1) the child's physical or mental health is seriously endangered
due to injury by the act or omission of the child’s parent,
guardian, or custodian; 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.
I.C. § 31-34-1-2.
[14] “[T]he purpose of a CHINS adjudication is to protect children, not punish
parents.” In re L.C., 23 N.E.3d 37, 39 (Ind. Ct. App. 2015), trans. denied (citing
N.E., 919 N.E.2d at 106). A CHINS adjudication is not a determination of
parental fault but rather is simply a determination that a child is in need of
services and is unlikely to receive those services without the court’s
intervention. Id. (citing N.E., 919 N.E.2d at 105). Because CHINS proceedings
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are civil in nature, DCS must prove by a preponderance of the evidence that a
child is a CHINS as defined by the relevant statutes. Id.
[15] On appeal, we must determine whether the evidence presented supports the
findings of the trial court, and second, whether the findings support the
judgment. In re T.S., 906 N.E.2d 801, 804 (Ind. 2009). We do not reweigh the
evidence nor judge the credibility of the witnesses. In re D.F., 83 N.E.3d 789,
796 (Ind. Ct. App. 2017). Instead, we consider only the evidence that supports
the court’s decision and reasonable inferences drawn therefrom. Id. We will
reverse only upon a showing that the decision of the court was clearly
erroneous. Id.
[16] In its order, the trial court adjudicated N.M. a CHINS because “[Grandmother]
admits that [N.M.] needs counseling but she has not obtained counselling for
him on her own . . . and has not taken the child for the intake appointment.
[Grandmother] blames lack of transportation for failure to obtain services but
[Grandmother] allowed [Uncle] to take her car.” Appellant’s App. at 37.
Further, “[he] need[s] care, treatment or rehabilitation that [he] is not receiving;
and that it is unlikely to be provided or accepted without coercive intervention
of the court.” Id.
[17] Grandmother argues that “DCS did not prove that [t]herapy was necessary.”
Appellant’s Br. at 20. But, Grandmother admitted that N.M. needs therapy. Tr.
p. 47 (“I think he could use some counseling”). Grandmother has not attempted
to find a counselor for N.M. Further, the DCS case manager testified that
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“[N.M.] needs some individual therapy to address some of the trauma within
his relationships with his parents and his caregivers.” Id. at 58. The evidence
supports the trial court’s finding that N.M. needs therapy, and Grandmother
will not take him to counseling sessions without DCS involvement.
Accordingly, N.M. was properly adjudicated a CHINS under Indiana Code
section 31-34-1-1.
[18] The trial court also concluded that N.M. is a CHINS under Indiana Code
section 31-34-1-2. DCS proved that N.M.’s physical well-being has been
endangered on multiple occasions. Grandmother attempts to argue that
“isolated incidents of ‘excessive discipline’ do not constitute a CHINS finding.”
Appellant’s Br. at 23. But Grandmother testified that prior to the incident where
Father dragged N.M. across the street, Father “pulled [N.M.] off
[Grandmother’s] bed, picked him up and took him into the living room . . . and
pulled his ear or something and it was bruised.” Tr. pp. 39–40. According to the
family case manager, Grandmother “stated that she knew that the way [Father]
disciplined [N.M.] was unconventional but that she believed that he needed a
parent . . . and [] that type of discipline specifically was concerning and harmful
to [N.M.] and [Grandmother] stated she knew and that she had also felt fearful
of her son for some time just because of his behavior in her home.” Tr. p. 57.
N.M. has stated he is “afraid to be around his Father, because he is aggressive.”
Appellant’s App. p. 15.
[19] Moreover, Grandmother is well aware that Father poses a danger to N.M.’s well-
being. Grandmother told DCS about “an incident between Father and [N.M.]
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and [N.M.] and [Uncle] that [she] thought maybe had been inappropriate, but
[she] still allowed [N.M.] to stay in the house with them.” Tr. p. 45. When asked
why Grandmother had not asked Father or Uncle to leave the house, she
responded, “[b]ecause they are my kids and they needed help.” Id.
[20] Similarly, Grandmother has allowed Father back into the home after the most
recent incident, even though the trial court ordered her to keep him away from
the house. The record indicates that Grandmother understood Father was not
supposed to return home but admitted that “he came back a few times[.]” Id. at
46. The DCS case manager stated, “I have concerns about [Grandmother’s]
ability to maintain appropriate boundaries with her adult children.” Id. at 60.
The evidence is sufficient to prove that N.M.’s physical and mental health are
seriously endangered, that N.M. needs care, treatment and rehabilitation,
which he is not receiving, and is unlikely to be provided without coercive
intervention of the court.
[21] For all of these reasons, DCS proved by a preponderance of the evidence that
N.M. is a CHINS under Indiana Code sections 31-34-1-1 and 31-34-1-2.
Conclusion
[22] The trial court’s order adjudicating N.M. a CHINS is supported by sufficient
evidence. We therefore affirm the CHINS adjudication.
[23] Affirmed.
Riley, J., and May, J., concur.
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