In the Matter of: E.W. and I.W. (Minor Children), Children in Need of Services, and C.A. (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Nov 15 2019, 9:11 am
regarded as precedent or cited before any
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
Frederick A. Turner Curtis T. Hill, Jr.
Bloomington, Indiana Attorney General of Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: E.W. and I.W. November 15, 2019
(Minor Children), Children in Court of Appeals Case No.
Need of Services, 19A-JC-1495
and Appeal from the Monroe Circuit
Court
C.A. (Mother),
The Honorable Holly M. Harvey,
Appellant-Respondent, Judge
v. Trial Court Cause Nos.
53C06-1807-JC-525
53C06-1807-JC-526
Indiana Department of
Child Services,
Appellee-Petitioner
Baker, Judge.
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[1] C.A. (Mother) appeals the order finding her minor children, E.W. and I.W., to
be children in need of services (CHINS), arguing that the evidence is
insufficient to establish that the coercive intervention of the court is necessary.
Mother also appeals the order granting physical custody of E.W. to his father,
arguing that the juvenile court made erroneous findings of fact and that the
evidence does not support a conclusion that a custody modification is in E.W.’s
best interests. Finding the evidence sufficient and no reversible error with
respect to custody, we affirm.
Facts
[2] I.W.1 was born in January 2009 to Mother and L.M. (“I.W.’s Father”), and
E.W. was born in August 2011 to Mother and J.R. (“E.W.’s Father”). Mother
has prior history with the Department of Child Services (DCS), including a
termination of parental rights to two other children in 2007 and a CHINS case
with I.W. in 2009. Mother shared custody of the children with their respective
fathers. Mother lived in Bloomington, I.W.’s Father lived in Texas, and E.W.’s
Father lived in Indianapolis.
[3] On July 5, 2018, Mother was arrested for domestic battery, criminal
recklessness, and attempted battery with a deadly weapon; the victim of the
alleged violence was her husband (Husband), who is not the father of either
1
The juvenile court entered an order on September 13, 2018, changing I.W.’s name to I.W.M., but for the
sake of clarity, we will refer to the child as I.W. throughout this opinion.
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child. The children were present while she allegedly committed these crimes—
indeed, Mother allegedly hit I.W. in the face multiple times and threatened
Husband and the children with a knife. Mother later admitted that she had
consumed twenty double shots of liquor before she was arrested, that she had
an alcohol abuse problem, and that she had untreated mental health issues.
While in jail, Mother made suicidal statements. The children have observed
Mother impaired and/or unstable on multiple occasions. Husband reported
that Mother has a long history of domestic violence against both him and the
children, alcohol and drug abuse issues, and untreated mental health problems.
[4] DCS filed a petition alleging that the children were CHINS on July 9, 2018. At
the initial hearing, held that same day, the juvenile court ordered the children
removed from Mother’s care and custody and that both would be placed with
E.W.’s Father in Indianapolis. After E.W.’s Father reported stress in the home
between his girlfriend and I.W., the juvenile court moved I.W. into foster care
on November 5, 2018.
[5] The juvenile court held a factfinding hearing on the CHINS petition on
November 28, 2018. The only witness to testify at the factfinding hearing was
the DCS Family Case Manager (FCM) who investigated the initial allegations.
On December 3, 2018, the juvenile court found the children to be CHINS,
emphasizing the alleged crimes Mother committed in front of the children, her
extreme alcohol consumption, her suicidal statements, and her previous
involvements with DCS. The juvenile court also found as follows:
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Although the Fathers of the Children intend to seek legal and
physical custody of the children, they currently have not done so
in this case. Without a custody order limiting Mother’s contact
for the protection of the children, a CHINS case is needed for
that purpose. Therefore the coercive intervention of the court is
needed to ensure the safety of the children.
Appealed Order p. 2.
[6] Subsequently, both fathers filed motions to modify custody. The juvenile court
held a dispositional hearing on January 22 and February 5, 2019. The February
5 hearing also served as a custody modification hearing for E.W. At that
hearing, the following evidence was introduced:
• Mother was participating in intensive outpatient therapy (IOP), recovery
services, supervised therapeutic visitation, random drug screens, and
therapy. She had one positive drug screen for THC in December but had
tested clean since that time.
• Mother found housing in a shelter and had stable employment. She was
on a waiting list for an apartment at the Coburn Place shelter.
• Mother’s visits took place in the community because the visit supervisors
did not feel her home was appropriate. Mother had an affectionate
relationship with the children. At one visit, I.W. reported that other
children in E.W.’s Father’s house had been hitting him. Mother “began
to escalate” and the visit was ended; during the drive home, Mother
made death threats against the FCM and E.W.’s Father and had great
difficulty calming down. Tr. Vol. I p. 135.
• The children were very close with each other and with Mother. Mother
paid them a dollar to go to E.W.’s Father’s home, cry, and say they did
not want to be with him anymore.
• The children reported that E.W.’s Father had spanked them with a belt.
• The FCM had no safety concerns about E.W.’s Father or his home.
E.W. was thriving in his father’s care, was happy, and was getting good
grades, but his behavior was worsening because he was stressed by the
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legal proceedings. E.W.’s Father has stable employment and his
girlfriend provided childcare when he was at work. He reported that
Mother had repeatedly threatened him, come to his house uninvited, and
said she would blow up the house with the kids inside of it.
• Husband testified about Mother’s alcohol abuse and violence. After his
testimony, while the court and counsel were discussing scheduling
matters, Mother said, “I did not try to kill the dude. You can whisper a
little bit more quieter.” The court said, “Hey, button it,” but Mother
kept arguing, “he’s just trying to kill my son” and “he over there
whispering.” Id. at 126.
• At another point in the hearing, while the court and counsel were
discussing scheduling matters, Mother said, “Okay, I’m sorry. I’m not
trying to be rude or nothing . . . but, my child is in an abusive home and I
cannot sleep. I cannot go another month without eating and worrying
about my child being abused.” Id. at 151. She continued to interject and
speak out of turn.
• Mother admitted that she was an alcoholic and has borderline
personality disorder.
[7] On March 28, 2019, the juvenile court entered two orders: (1) the first order
granted custody of E.W. to his father and discharged the CHINS finding as to
E.W.; and (2) the second order was a dispositional order. In the custody order,
the juvenile court found as follows:
2. Mother has inconsistently participated in the
recommended referrals of the DCS. Mother is
participating in IOP, though has not been consistent in
attendance. Her drug screen had been consistently
positive for marijuana until November of 2018, and
Mother had one other positive screen in December while
the remaining screens available to the date of the
Predispositional Report were negative. She only recently
obtained an AA sponsor. . . . She reported being on track
to graduate IOP by the end of February. Mother is visiting
with the children regularly. She resides in Julian Center,
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and is on the wait list for a family shelter. She has
maintained employment.
3. At the time of the dispositional hearing, the circumstances
giving rise to the filing of the Petition and the finding of
CHINS had not been remedied, and Mother is not yet
capable of having [E.W.] returned to her care and custody.
***
5. [E.W.] is doing well since being placed in the custody of
his Father. . . . The DCS has not expressed any concerns
about [E.W.’s] safety while in Father’s care.
6. Father has demonstrated an ability to care for [E.W.]. He
has regular employment. Father has stable housing where
he lives with his partner of approximately ten years . . . .
[E.W.] is bonded to [Father’s girlfriend] and gets along
well with his three step-siblings, [girlfriend’s] children. . . .
7. Mother’s incarceration and failure to remedy the
circumstances giving rise to the removal of the children
from her home by maintaining stable housing and
inconsistently maintaining sobriety represent a substantial
and continuing change in circumstances which support a
modification of custody. It is in the best interests of the
child that Father have physical custody of [E.W.]
***
1. [E.W.’s Father] shall have physical custody of [E.W.] and
the parties shall continue to share joint legal custody.
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2. [Mother] shall have parenting time with the children at
times and locations as agreed by the parties. . . . [Mother]
shall have no unsupervised parenting time.
Appellant’s App. Vol. II p. 38-40. The dispositional order required Mother to
participate with IOP and other recovery services, to participate in weekly
therapy and home-based case management, to refrain from using drugs and
alcohol, and to submit to random drug screens. I.W. remained in foster care.
Mother now appeals the finding that I.W. is a CHINS and the order granting
physical custody of E.W. to his father.
Discussion and Decision
I. CHINS Finding
[8] Our Supreme Court has explained the nature of a CHINS proceeding and
appellate review of a CHINS finding as follows:
A CHINS proceeding is a civil action; thus, “the State must
prove by a preponderance of the evidence that a child is a
CHINS as defined by the juvenile code.” In re N.E., 919 N.E.2d
102, 105 (Ind. 2010). We neither reweigh the evidence nor judge
the credibility of the witnesses. Egly v. Blackford County Dep’t of
Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We consider
only the evidence that supports the trial court’s decision and
reasonable inferences drawn therefrom. Id. We reverse only
upon a showing that the decision of the trial court was clearly
erroneous. Id.
There are three elements DCS must prove for a juvenile court to
adjudicate a child a CHINS. DCS must first prove the child is
under the age of eighteen; DCS must prove one of eleven
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different statutory circumstances exist that would make the child
a CHINS; and finally, in all cases, DCS must prove the child
needs care, treatment, or rehabilitation that he or she is not
receiving and that he or she is unlikely to be provided or accepted
without the coercive intervention of the court. In re N.E., 919
N.E.2d at 105.
In re K.D., 962 N.E.2d 1249, 1253-54 (Ind. 2012) (footnote omitted).
[9] Here, DCS alleged that I.W. was a CHINS pursuant to Indiana Code section
31-34-1-1, which provides as follows:
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:
(A) when the parent, guardian, or custodian is
financially able to do so; or
(B) due to the failure, refusal, or inability of the parent,
guardian, or custodian to seek financial or other
reasonable means to do so; 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.
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Our Supreme Court has interpreted this provision to require “three basic
elements: that the parent’s actions or inactions have seriously endangered the
child, that the child’s needs are unmet, and (perhaps most critically) that those
needs are unlikely to be met without State coercion.” In re S.D., 2 N.E.3d 1283,
1287 (Ind. 2014).
[10] Mother’s only argument related to I.W.’s CHINS status is that the evidence is
insufficient to show that he needs care, treatment, or rehabilitation that is
unlikely to be provided or accepted without the coercive intervention of the
court. The record reveals that Mother’s parental rights to two other children
were terminated in 2007 and that she had a previous CHINS case with I.W. in
2009. Despite these experiences, Mother continued to drink excessively and
behave violently, resulting in her arrest on serious criminal charges. After her
arrest, she expressed suicidal thoughts; after the children were removed, she
continued to drink alcohol. There was also evidence gathered by the
investigating FCM that the children had both witnessed and experienced
domestic violence at her hands repeatedly over the years.
[11] The purpose of a CHINS case is “to help families in crisis—to protect children,
not punish parents.” Id. at 1285. In this case, the evidence shows that I.W.
needed protection and Mother needed help. I.W. was seriously endangered in
Mother’s care and custody and, until DCS and the juvenile court got involved
with this family, Mother was not attempting to address her serious substance
abuse and mental health issues. Under these circumstances, we find that the
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evidence supports the juvenile court’s conclusion that the coercive intervention
of the court was necessary to ensure I.W.’s safety and well-being.
II. Custody of E.W.
[12] Next, Mother argues that the juvenile court erroneously awarded physical
custody of E.W. to his father. In its order, the juvenile court entered findings of
fact and conclusions of law. In reviewing the order, we first determine whether
the evidence supports the findings; and second, whether the findings support
the judgment. Harris v. Harris, 800 N.E.2d 930, 934-35 (Ind. Ct. App. 2003).
We owe no deference to the juvenile court’s conclusions of law and will review
those conclusions de novo. Id. at 935. We do, however, give “wide latitude
and deference” to a juvenile court’s decision to modify custody. Collyear-Bell v.
Bell, 105 N.E.3d 176, 183 (Ind. Ct. App. 2018).
[13] Indiana Code section 31-17-2-21(a) provides that a court may not modify a
child custody order unless (1) the modification is in the child’s best interests;
and (2) there is a substantial change in one or more of the factors enumerated in
Indiana Code section 31-17-2-8. That statute, in turn, provides in relevant part
as follows:
The court shall determine custody and enter a custody order in
accordance with the best interests of the child. In determining the
best interests of the child, there is no presumption favoring either
parent. The court shall consider all relevant factors, including the
following:
(1) The age and sex of the child.
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(2) The wishes of the child’s parent or parents.
(3) The wishes of the child, with more consideration
given to the child’s wishes if the child is at least
fourteen (14) years of age.
(4) The interaction and interrelationship of the child
with:
(A) the child’s parent or parents;
(B) the child’s sibling; and
(C) any other person who may significantly affect
the child’s best interests.
(5) The child’s adjustment to the child’s:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals
involved.
(7) Evidence of a pattern of domestic or family violence
by either parent.
I.C. § 31-17-2-8.
A. Factual Findings
[14] Mother first argues that the juvenile court made factual findings that are not
supported by the evidence. First, the court found that “Mother inconsistently
participated in the recommended referrals of the DCS.” Appellant’s App. Vol.
II p. 38. We agree with Mother that the evidence does not support this finding.
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The record shows that Mother was participating with IOP, recovery services,
visitation, random drug screens, individual therapy, and home-based case
management. The State contends that the evidence shows that Mother had not
yet sufficiently benefited from those services. That may be the case, but that is
not what the juvenile court found. While we conclude that this finding is
erroneous, that conclusion does not alter the result of this appeal.
[15] Second, the court found that “[t]he DCS has not expressed any concerns about
[E.W.’s] safety while in Father’s care.” Id. at 39. The FCM testified that the
children reported that E.W.’s Father had struck them with a belt approximately
five times, and the FCM then told E.W.’s Father that he needed to change the
way he disciplined E.W.; Father agreed to make the change. While this was,
indeed, an issue that had to be corrected, the FCM did not state that he had
ongoing concerns about E.W.’s safety while in Father’s care. Likewise, while
the FCM noted that the amount of food in the house was “appropriate, but . . .
it could have been more,” tr. vol. I p. 86, he did not conclude that the issue rose
to the level of a safety concern. Therefore, the evidence supports this finding.
[16] Third, the court found that “Mother’s incarceration and failure to remedy the
circumstances giving rise to the removal of the children from her home by
maintaining stable housing and inconsistently maintaining sobriety represent a
substantial and continuing change in circumstances which support a
modification of custody.” Appellant’s App. Vol. II p. 40. Mother argues that
her “conduct has been remedied” and that her inability to get housing is a result
of the CHINS case. Appellant’s Br. p. 15. The record shows that Mother has
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absolutely made commendable progress and has had consistent and sincere
participation with her court-ordered services. But it does not show that the
underlying issues have been remedied; instead, it shows that there is more work
to be done before either child can be placed safely into Mother’s unsupervised
care and custody. Therefore, the evidence supports the factual portions of this
finding.
B. Best Interests
[17] Finally, Mother argues that the juvenile court erred by finding that it is in
E.W.’s best interests for his father to have primary physical custody. When
reviewing a child’s best interests, the juvenile court must consider the factors
enumerated above in Indiana Code section 31-17-2-8.
[18] The evidence shows that E.W. has an affectionate relationship with Mother and
a good relationship with his father. He is well adjusted to his father’s home and
the school that he attends while living there. E.W. is bonded to Father’s
girlfriend and her children. He is also bonded to I.W., and while it is
unfortunate that the brothers have to be separated for now, E.W.’s Father and
his girlfriend are committed to ensuring that the siblings can visit each other
and maintain a relationship.
[19] The record reveals that, while Mother is participating with all required services,
she has not yet reached a point where E.W. is safe in her care. There is
evidence of a pattern of domestic and family violence at her hands. There is
also evidence of a serious substance abuse issue and mental health concerns that
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will need continued treatment before E.W. can be placed safely in her care and
custody.
[20] Under these circumstances, the evidence supports the juvenile court’s
conclusion that, for now, it is in E.W.’s best interests that custody be modified.
Mother’s arguments to the contrary amount to a request that we reweigh the
evidence and second-guess the juvenile court’s assessment of witnesses, which
we may not do. In the future, if Mother addresses her issues to a point at which
she would be a safe and stable placement for E.W., the parties and the court
can, of course, reconsider the custody arrangement.
[21] The judgment of the juvenile court is affirmed.
Kirsch, J., and Crone, J., concur.
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