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In re A.H.

Court of Appeals of Indiana

August 18, 2016

In the Matter of: A.H. (Minor Child), Child in Need of Services, and A.H. (Mother), Appellant-Respondent,

         Appeal from the Marion Superior Court The Honorable Marilyn A. Moores, Judge The Honorable Rosanne T. Ang, Magistrate Trial Court Cause No. 49D09-1507-JC-2165

          ATTORNEY FOR APPELLANT Kimberly A. Jackson Indianapolis, Indiana.

          ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of Indiana Robert J. Henke David E. Corey Deputy Attorneys General Indianapolis, Indiana.

          Baker, Judge.

         [1] When a parent is unwilling or unable to provide help to his or her child, Indiana's Department of Child Services can seek the "coercive intervention" of a court to compel that parent to provide help through a Child in Need of Services (CHINS) adjudication, but this intrusion of the coercive power of the State into family life is "reserved for families who cannot meet those needs without coercion-not those who merely have difficulty doing so." In re S.D., 2 N.E.3d 1283, 1285 (Ind. 2014). Nor is that power appropriately applied to a parent who seeks reasonable care for her traumatized child, merely because that care is ultimately unsuccessful through no fault of the parent.

         [2] A.H. (Mother) appeals the juvenile court's order finding her daughter, also initialed A.H. (Child), to be a CHINS. Mother argues that the evidence is insufficient to support the CHINS adjudication. Finding no evidence that the coercive power of the court is necessary to ensure Child receives care, we reverse.

         Facts

         [3] Child has had a difficult past. She was bullied in school for being interracial. The bullying became so serious that she was admitted to a psychiatric hospital. At fourteen years old, she became pregnant, and when she was eight months pregnant, she was raped. As a result of these traumas, Child slept poorly and was often violent. Police were called to the house several times, and Child was arrested on some of these occasions. She has been diagnosed with anxiety disorder, separation anxiety, and depression. Mother has taken Child to receive mental health care since Child was in fifth or sixth grade.

         [4] In June 2015, the Indiana Department of Child Services (DCS) became involved with the family when it received a report that Child had struck her brother. A family case manager (FCM) spoke to Mother, but Child refused to speak to the FCM. Mother informed the FCM that she had been taking Child to mental health service providers but that Child refused to participate in the services.

         [5] On July 14, 2015, DCS filed a petition alleging that Child was a Child In Need of Services (CHINS) because her "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." Appellant's App. p. 26. That same day, the juvenile court held an initial hearing on the petition. Mother was not present, as DCS had not yet served her. Along with ordering continued in-home placement of Child, the juvenile court ordered therapy and a psychological evaluation for Child, and ordered "DCS to staff the matter for possible services through Cross Systems of Care." Id. at 38-39.

         [6] At the next hearing, two weeks later, DCS still had not served Mother, and still had not arranged any services. The juvenile court noted, "Mother is willing to participate in services." Id. at 44. It also "order[ed] DCS to ensure that the services ordered at the initial hearing be arranged for the family by the end of today." Id. at 44-45. Another hearing was set for a week later.

         [7] At that next August 4, 2015, hearing, DCS still had not arranged a psychological evaluation. So again, the juvenile court "order[ed] DCS to ensure that services that were ordered at the last hearing [are] in place." Id. at 57. At the next hearing on August 18, DCS still had not made the referral for a psychological examination. At the next hearing on August 25, DCS still had not arranged a psychological evaluation, but told the juvenile court that it "will be in place soon." Id. at 66. The juvenile court "admonishe[d] DCS for not having the referral for the psychological evaluation for [Child] in place [and] order[ed] that DCS have the psychological evaluation . . . in place for [Child] within 48 hours." Id. DCS, however, did not comply with this order either.

         [8] On September 2, Child became violent with her sister. Mother called the police and asked them to take Child to the hospital, where Mother hoped a psychological evaluation could be completed. DCS eventually referred Mother to an organization named Damar for a mental health evaluation. However, when Mother followed up on DCS's referral, Damar informed her that it only works with mentally handicapped persons, not mentally ill persons, and does not perform mental health evaluations.

         [9] The first psychological evaluation of Child began at her home on September 14, 2015, by Midtown Mental Health. Midtown required a second evaluation. When Midtown sent out a representative on October 14, 2015, however, that individual did not have the training required to complete the evaluation, and so left. No one from Midtown contacted Mother again. A psychological evaluation was finally completed in November 2015 by Caring Associates in Brownsburg. Because of DCS's four-month delay from the initial court order, the results of the evaluation were not available at the time of the November 16 and 23 fact-finding hearing.

         [10] At that hearing, several witnesses, including Mother, told the juvenile court that Child was benefitting from therapy. At the conclusion of the hearing, the juvenile court adjudicated Child a CHINS. The juvenile court did not make a written set of findings, but ended the hearing by saying the following:

• Mother is not unwilling to provide for Child's needs
• "but the statute also says unable and I do think that you've been unable for whatever reason to get the help ...

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