IN RE: Ja.B. and Jo.B. (Minor Children) (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Jo.B. (“Older Child”) and Ja.B. (“Younger Child”) (collectively, “Children”) are the biological sons of Mother. Mother is dating L.B. (“Boyfriend”), who is neither of the Children's biological father. Due to the Children's substantial absences from school while living with Mother and Boyfriend, child in need of services (“CHINS”) petitions were filed, and the Children were adjudicated CHINS. Boyfriend now appeals, raising one issue for our review, which we restate as follows: Whether the juvenile court clearly erred by adjudicating the Children as CHINS.

[2] We affirm.

Facts and Procedural History

[3] Older Child was born in 2015, and Younger Child was born in 2019. The Children have different fathers, neither of whom had established paternity by the time the Indiana Department of Child Services (“DCS”) became involved, and neither of whom is Boyfriend. Boyfriend is Mother's boyfriend of several years, and they share one daughter, La.B. (“Daughter”). Boyfriend would spend some days living with Mother at Mother's residence and spend other days caring for his mother at her house when Boyfriend's father was not there. Boyfriend would stay with Mother anywhere from several days during the week to whole weeks or months at a time.

[4] The Children attended a public elementary school, and Boyfriend would wait with the Children for the school bus on some mornings. The Children, however, did not consistently take the bus. They would wait for Mother to leave for work and then “sneak” back into the house. Tr. Vol. II at 82. Boyfriend, who cared for Daughter during the day and did not have a car, was unable to take the Children to school when they missed the bus.

[5] In September 2024, DCS received a report regarding Children's absences from school. Older Child was in second grade, had missed the first 3 days of school, and had 13 absences. Older Child also had at least 72 absences during first grade, was retained in first grade for an additional year, and had at least 40 absences during the retained year. The school was concerned that Older Child was “very behind academically.” Tr. Vol. II at 58. Younger Child had just started kindergarten and had at least twelve absences.

[6] After DCS received the report regarding the Children's absences, Mother and Boyfriend attended a meeting, where they expressed an intent to homeschool the Children. Boyfriend suggested that “his mom would just teach them.” Tr. Vol. II at 59.

[7] On September 24, 2024, DCS filed petitions alleging that the Children were CHINS. DCS later filed a motion to compel Mother and Boyfriend to allow DCS to inspect the home and to interview the Children. Mother then sent Younger Child to live with his father in Anderson while Mother sought stable housing. The juvenile court held a hearing on DCS's motion to compel and granted the motion. Boyfriend did not attend the hearing because, according to Mother, Boyfriend did not have a phone and was “upstairs with [Older Child and Daughter] asleep.” Tr. Vol. II at 28. At some point after the hearing, Mother sent Older Child to stay with his father in Shelbyville.

[8] At the CHINS factfinding hearing, Mother testified that the Children missed school due to funerals and health problems. Boyfriend testified that he was not “responsible” for getting the Children to school because he was not their parent. Tr. Vol. II at 76. Boyfriend also testified that he has ADHD, is bipolar, and is “supposed to be on meds.” Id. at 82.

[9] The juvenile court issued an order adjudicating the Children to be CHINS under Indiana Code sections 31-34-1-1 (general neglect) and 20-33-2-6 (compulsory education). The juvenile court determined that Boyfriend was the Children's “custodian,” finding in relevant part as follows:

24. There was conflicting testimony about [Boyfriend's] role in this family's life. Ultimately, [Boyfriend] overall testified that he regularly has assisted in the care of the children for years, including getting them ready and off to school, and [Boyfriend] often stays the night with the family.

25. At the Motion to Control Conduct hearing, [Boyfriend] was not able to attend the virtual hearing because he was in the house in bed with the children.

26. There was also testimony that [Boyfriend] lives with his mother to provide care for his mother. However, there was also testimony that this is not a consistent arrangement due to hostility between [Boyfriend] and his mother's spouse.

27. [Boyfriend] has also been a part of the meetings and/or conversations with school staff about attendance and [Older Child's] need for an individual education plan.

28. The Court finds that while [Boyfriend] m[a]y occasionally stay with his mother to provide her care when other relatives are not able to, [Boyfriend] routinely has been living with [Mother] and providing care for the children for years.

29. [Boyfriend] is a de facto custodian of the children.

Appellant's App. Vol. III at 3, 8. The juvenile court further found that the Children's “mental health and education is seriously endangered due [to] educational neglect, lack of stable housing, and caregiver's untreated mental health [and] the [Children are] unlikely to be provided [ ] care, treatment, or rehabilitation [ ] without coercive intervention of the court.” Id. at 4, 9.

[10] The juvenile court issued a dispositional order on January 27, 2025, requiring Mother and Boyfriend to, among other things, comply with DCS and engage in recommended services. Following the dispositional order, on February 26, 2025, Mother, Older Child's father, and DCS entered an agreement whereby Older Child's father would obtain sole physical and legal custody of Older Child, and Mother would have unsupervised visitations. DCS agreed to “closing the DCS case upon [Older Child's father] receiving full custody and there being an unsupervised visitation order.” Appellant's App. Vol. III at 26. As for Younger Child, who has been living with his father since DCS got involved, the Odyssey database reveals that a paternity action regarding Younger Child was opened in December 2024, but there have been no developments regarding that case. This appeal ensued.¹

Discussion and Decision

The Juvenile Court Did Not Clearly Err by Adjudicating the Children CHINS

[11] Boyfriend challenges the sufficiency of the evidence to sustain the juvenile court's adjudication of the Children as CHINS. Boyfriend does not challenge most of the statutory elements supporting the CHINS adjudication; he argues only that the Children could not be adjudicated CHINS “as to” him because he is not their parent. Appellant's Br. at 12. We first explain that, contrary to the State's argument, Boyfriend's challenge to the CHINS adjudication is not waived. We then reach our main holding that, because the juvenile court found that Boyfriend was the Children's custodian and did not clearly err in doing so, the juvenile court did not clearly err in adjudicating the Children as CHINS.

1. Standard of Review

[12] The juvenile court adjudicated the Children as CHINS under Indiana Code section 31-34-1-1 and Indiana Code section 20-33-2-6. Indiana Code section 31- 34-1-1 provides that in order to adjudicate a child a CHINS under that section, DCS must prove by a preponderance of the evidence that

(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.

Ind. Code § 31-34-1-1. Indiana Code section 20-33-2-6 requires the attendance of a child enrolled in school until the child reaches a certain age or other circumstances are met.

[13] We will reverse a CHINS determination only if the juvenile court's decision was clearly erroneous. In re R.L., 144 N.E.3d 686, 689 (Ind. 2020) (citing In re D.J., 68 N.E.3d 574, 578 (Ind. 2017)). “A decision is clearly erroneous if the record facts do not support the findings or if [the juvenile court] applies the wrong legal standard to properly found facts.” Id. (quoting D.J., 68 N.E.3d at 578). “[W]e neither reweigh the evidence nor judge witness credibility.” Id. (citing D.J., 68 N.E.3d at 577–78). When, as here, a juvenile court enters findings and conclusions sua sponte, we review any issue not covered by the findings “under the general judgment standard,” which means we will affirm “on any legal theory supported by the evidence.” Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016) (citing In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014)). Furthermore, we accept as true any findings that Boyfriend does not challenge on appeal. See R.M. v. Ind. Dep't of Child Servs., 203 N.E.3d 559, 564 (Ind. Ct. App. 2023) (citing Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992)), trans. not sought.

2. Waiver

[14] As an initial matter, we address the State's argument that Boyfriend “waived his claim that he is not a proper party by failing to raise the issue below.” Appellee's Br. at 9; see Safeco Ins. Co. of Ind. v. Blue Sky Innovation Grp., Inc., 230 N.E.3d 898, 907 (Ind. 2024) (citing Allstate Ins. Co. v. Love, 944 N.E.2d 47, 52 (Ind. Ct. App. 2011)), reh'g denied (June 3, 2024) (noting that arguments not presented before the trial court are waived on appeal). This is not exactly Boyfriend's argument—Boyfriend does not argue that he is not a “proper party” in the case. However, Boyfriend's argument that he is not responsible for the Children and that the CHINS adjudication should not affect him is similar. To the extent these arguments are the same, we conclude that Boyfriend's argument is not waived.

[15] Boyfriend made it abundantly clear during the factfinding hearing that he was not the Children's biological father and that he did not believe that he was responsible for their education. The juvenile court found that although Boyfriend was not the Children's biological father, he was their “custodian.” Appellant's App. Vol. II at 3, 8.

[16] The juvenile court clearly understood Boyfriend's challenge to the CHINS adjudication based on Boyfriend's status as a non-parent. Moreover, “whenever possible, [our courts] ‘prefer[ ] to resolve cases on the merits instead of on procedural grounds like waiver.’ ” In re E.Q., 124 N.E.3d 1201, 1214 (Ind. 2019) (quoting Hale v. State, 54 N.E.3d 355, 359 (Ind. 2016)). For these reasons, Boyfriend's argument is not waived.

3. CHINS Adjudication

[17] Turning to the merits of Boyfriend's argument, we reiterate that Boyfriend is not challenging most of the statutory elements necessary for a CHINS adjudication. Boyfriend does not contest the juvenile court's finding that the Children's mental conditions are “seriously endangered” by their lack of school attendance and that the “coercive intervention of the court” is necessary. Appellant's App. Vol. II at 4, 9; see Ind. Code § 31-34-1-1. Boyfriend only argues that the juvenile court erred by adjudicating the Children CHINS “as to” him because he is not the Children's parent. Appellant's Br. at 12. Boyfriend recognizes that Indiana Code section 31-34-1-1 provides that a child may be adjudicated as a CHINS when the child's serious impairment or endangerment is caused by the child's “custodian”; however, Boyfriend argues that the juvenile court clearly erred by finding that he was the Children's custodian.²

[18] First, Boyfriend's “as to” language misunderstands the nature of CHINS proceedings. “[A] CHINS adjudication is not rendered ‘as to [a] Father’ or ‘as to [a] Mother,’ but as to the child alone.” In re E.K., 260 N.E.3d 901, 917 (Ind. 2025) (quoting In re K.D., 962 N.E.2d 1249, 1259 (Ind. 2012)). This is because “[t]he purpose of the CHINS adjudication is to ‘protect the children, not punish parents,’ ” K.D., 962 N.E.2d 1249, 1255 (Ind. 2012) (quoting In re N.E., 919 N.E.2d 102, 106 (Ind. 2010)), and “[t]he process of the CHINS proceeding focuses on ‘the best interests of the child, rather than guilt or innocence as in a criminal proceeding,’ ” id. (quoting N.E., 919 N.E.2d at 106). Indeed, “sometimes a child can be adjudicated a CHINS through no fault of the parent[.]” Id. Thus, it is incorrect to refer to a CHINS adjudication as “as to” a specific parent or other parental figure. See id. A child either is a CHINS or is not a CHINS.

[19] Second, the juvenile court did not clearly err by finding that Boyfriend was the Children's custodian.³ Indiana Code section 31-9-2-31 defines “custodian” in relevant part as follows:

(a) “Custodian”, for purposes of the juvenile law, means a person with whom a child resides.

(b) “Custodian”, for purposes of IC 31–34–1, includes any person who is:

* * *

(5) an individual who has or intends to have direct contact, on a regular and continuing basis, with a child for whom the individual provides care and supervision.

[20] In In re L.A.M., the mother's boyfriend provided care for the children, “such as cooking, playing, and providing transportation, and he indicated that he was ‘acting as father, stepfather’ to the Children.” 243 N.E.3d 347, 351 (Ind. Ct. App. 2024) (internal record citation omitted), trans. not sought. Although the boyfriend moved out of the mother's home after the DCS investigation began, DCS presented evidence that he still intended to be involved in the mother's and the children's lives. Id. We held that the juvenile court did not clearly err by finding that the boyfriend was the children's custodian. Id. at 351–52.

[21] Here, Boyfriend stayed with Mother at least several days per week, he provided shoes and clothing for the Children, and he waited with them for the school bus on some mornings. He suggested having his mother homeschool the Children due to their problems at the public school. While Mother attended the motion to compel hearing, Boyfriend watched Older Child at the family home. Boyfriend was clearly a person “with whom [the Children] reside[d],” Ind. Code § 31-9-2-31(a), intended to have “direct contact, on a regular and continuing basis” with the Children, and provided “care and supervision,” I.C. 31-9-2-31(b). Further, although Mother has since sent the Children to live with their fathers, nothing suggests that she or Boyfriend will no longer be involved in the Children's lives. Indeed, the agreed order between Mother and Older Child's father provides that Mother will have unsupervised visitations with Older Child. The evidence was sufficient for the juvenile court to find that Boyfriend was the Children's custodian, and the juvenile court did not clearly err in so finding.

[22] Boyfriend does not challenge any other statutory elements supporting the CHINS adjudication under Indiana Code section 31-34-1-1. Accordingly, the juvenile court did not clearly err by adjudicating the Children as CHINS under that statute, and we affirm the juvenile court's ruling.⁴

[23] Affirmed.

FOOTNOTES

1.   Neither Mother nor the Children's fathers participate in this appeal.

2.   The only other factual finding Boyfriend challenges is the juvenile court's finding that Older Child was born in 2015 and “is five years old.” Appellant's App. Vol. II at 6. The juvenile court got Older Child's birth year correct but stated the wrong age. This error is “sufficiently minor so as not to affect the substantial rights of the parties” and does not affect the validity of the CHINS adjudications. Ind. Appellate Rule 66(A).

3.   Specifically, the juvenile court found that Boyfriend was the “de facto custodian” of the Children. Appellant's App. Vol. II at 3, 8. Indiana Code section 31-9-2-35.5 provides:“De facto custodian”, for purposes of IC 31-14-13, IC 31-17-2, and IC 31-34-4, means a person who has been the primary caregiver for, and financial support of, a child who has resided with the person for at least:(1) six (6) months if the child is less than three (3) years of age; or(2) one (1) year if the child is at least three (3) years of age.Any period after a child custody proceeding has been commenced may not be included in determining whether the child has resided with the person for the required minimum period. The term does not include a person providing care for a child in a foster family home (as defined in IC 31-9-2-46.9).(Emphasis added).Boyfriend argues that the juvenile court erred by finding that he was the Children's de facto custodian because DCS did not prove that he was the Children's “primary” caregiver. Appellant's Br. at 15. But the statutory definition requiring a de facto custodian to be the primary caregiver for a child only applies to Indiana Code chapters 31-14-13, 31-17-2, and 31-34-4, which are not applicable here. In finding that Boyfriend was the Children's “de facto custodian,” we agree with the State that the juvenile court was not referring to the statutory definition but rather the colloquial meaning of the term, which is “actual” and “being such in effect though not formally recognized.” De facto, Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/de%20facto (last visited Sept. 29, 2025).

4.   Because we affirm the juvenile court's CHINS adjudication under Indiana Code section 31-34-1-1, we need not address the juvenile court's CHINS adjudication under Indiana Code section 20-33-2-6, although it is clear that DCS demonstrated the Children's substantial absences from school.Boyfriend points out in his brief that several statutes under Indiana Code chapter 20-33-2 make it unlawful for a “parent” to impair his or her child's education and that Boyfriend is not the Children's biological parent. See Ind. Code §§ 20-33-2-18(a), -27(a), -28(b). Boyfriend, however, was not charged with an offense under these sections, and his status as a non-parent does undermine the Children's substantial absences from school.

Felix, Judge.

Judges Brown and Scheele concur. Brown, J., and Scheele, J., concur.