FILED Jun 30 2023, 9:08 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT H.P. ATTORNEYS FOR APPELLEE (MOTHER) Theodore E. Rokita Jane A. Noblitt Attorney General of Indiana Columbus, Indiana Robert J. Henke ATTORNEY FOR APPELLANT D.P. Director, Child Services Appeals (FATHER) Unit Indianapolis, Indiana R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of: June 30, 2023
D.P. (Minor Child), Court of Appeals Case No. 22A-JC-2836 Child in Need of Services, Appeal from the Jennings Circuit H.P. (Mother) and D.P. (Father), Court The Honorable Murielle S. Bright, Appellants-Respondents, Judge v. The Honorable Christopher Doran, Magistrate Indiana Department of Child Trial Court Cause No. Services, 40C01-2207-JC-30
Appellee-Petitioner.
Opinion by Judge Kenworthy Judge Crone and Senior Judge Robb concur.
Court of Appeals of Indiana | Opinion 22A-JC-2836 | June 30, 2023 Page 1 of 23 Kenworthy, Judge.
Case Summary [1] The Indiana Department of Child Services (“DCS”) received a report alleging
possible abuse and neglect of four-year-old D. (“Child”), the son of D.P.
(“Father”) and H.P. (“Mother”) (collectively, “Parents”). During the DCS
investigation, some concerns were resolved, and others arose. Ultimately, the
trial court determined Child was a child in need of services (“CHINS”).
Parents separately appeal the trial court’s determination, but both essentially
claim the trial court clearly erred in adjudicating Child a CHINS. Concluding
there was no error, we affirm the trial court’s judgment.
Facts and Procedural History [2] Child was born November 28, 2017. On May 4, 2022, DCS received a report
Child “was seen with marks and bruises. He’s non-verbal and unable to
communicate what happened to him[.]” Tr. Vol. 2 at 151. 1 The report also said
Father “was arrested the beginning of [2022] for Possession of
Meth[amphetamine] and . . . there was no sober caregiver in the home.” Id.
DCS caseworker JoAnn Miller began an investigation that eventually ruled out
1 On DCS’ motion, we consolidated Father’s and Mother’s separate appeals under this single cause number. Before the cases were consolidated, however, a transcript was prepared and filed for each parent’s appeal. We have cited the transcript originally filed in cause number 22A-JC-2836.
Court of Appeals of Indiana | Opinion 22A-JC-2836 | June 30, 2023 Page 2 of 23 physical abuse 2 and focused instead on Parents’ substance abuse and their
ability to be safe and sober caregivers for Child.
[3] Parents were uncooperative from the outset and, in late May, DCS sought and
obtained an order compelling Parents to allow DCS into their home, give DCS
access to Child, and provide drug screens. On DCS caseworkers’ third attempt
to serve the order, Mother finally allowed them into the home, but Child was
not there. Parents had taken him to a relative’s home because they knew DCS
would be coming, but Mother gave caseworkers the address and they were able
to visit Child there.
[4] Mother submitted to an oral drug screen at that time, but Father refused.
Father only submitted to an oral drug screen after he was held in contempt in
June and ordered to immediately submit to a drug screen or be jailed for ten
days. While those samples were being tested, Child remained in Parents’ care.
[5] In late June, DCS was called because Child had been found wandering alone
about one-half mile from his rural home at 1:30 in the morning. Mother was
asleep when Child left the house; Father was at a friend’s house. Neither
Parent was aware Child was missing until after he had been found. This was
the second time Child left a residence without Parents’ knowledge while in their
care—the first time he left a relative’s home during a family barbeque. DCS
2 Child was diagnosed with an iron deficiency that explained the marks and bruises.
Court of Appeals of Indiana | Opinion 22A-JC-2836 | June 30, 2023 Page 3 of 23 caseworker Ida Mae Craney met with Parents and discussed a safety plan to
make the house more secure.
[6] During the investigation, DCS learned Father had pending criminal charges in
two counties: (1) in Jennings County, Father was charged with possession of
methamphetamine, possession of paraphernalia, and operating a motor vehicle
with false plates, and (2) in Jackson County, Father was charged with Level 2
felony dealing in methamphetamine and possession of paraphernalia. The
Jackson County charges arose from a February 2022 traffic stop where Father,
the passenger, was found with over thirty grams of methamphetamine in his
socks and underwear. DCS also learned Father had previously resolved
charges of possession of methamphetamine, possession of paraphernalia, and
operating a motor vehicle without ever receiving a license. Although Father
pleaded guilty only to the motor vehicle charge—not the substance-related
charges—Father’s probation was revoked in 2021 because he tested positive for
methamphetamine.
[7] DCS received Mother’s drug-screen results in early June and received Father’s
results on July 6. Both screens were positive for methamphetamine. The day
after receiving Father’s drug-screen results, DCS sought an emergency
detention order. The trial court entered the order the same day, and DCS took
custody of Child on July 9. Child was initially placed in a foster home.
[8] The trial court found probable cause Child was a CHINS and authorized DCS
to file a CHINS petition. The petition alleged Child was a CHINS in part
Court of Appeals of Indiana | Opinion 22A-JC-2836 | June 30, 2023 Page 4 of 23 because: (1) Parents tested positive for methamphetamine after submitting to
court-ordered drug screens; (2) Parents’ substance abuse “has a negative impact
on their ability to parent as they are not able to supply adequate supervision”;
(3) Father has pending drug charges in multiple counties; (4) Child has a “high
level of needs” and a tendency to put things in his mouth, “creating an elevated
risk of serious harm if there were to be methamphetamine, paraphernalia, or
other substances in the home”; and (5) the coercive intervention of the court is
necessary because Parents demonstrated “an almost unparalleled lack of
cooperation with DCS[.]” Appellant’s App. Vol. 2 at 39. 3 At an initial/detention
hearing on July 11, Parents denied the allegations of the petition.
[9] In the two months between the initial and fact-finding hearings, Child was
placed with his paternal grandmother (“Grandmother”). Parents visited Child
regularly, but continued to refuse to cooperate with DCS, including refusing to
submit to requested drug screens.
[10] The trial court held a CHINS fact-finding hearing on September 6, 2022.
[11] DCS offered the testimony of Dr. Aaron Brown, the Scientific Director at the
laboratory that tested Parents’ drug screens. Mother’s screen was positive for
151.8 ng/ml of methamphetamine. Father’s screen was positive for greater
than 1000 ng/ml of methamphetamine. Dr. Brown explained an oral sample is
3 As with the transcript, the consolidated appeal contains two appendices, one filed by Father and one filed by Mother. We have cited the appendix originally filed in cause number 22A-JC-2836.
Court of Appeals of Indiana | Opinion 22A-JC-2836 | June 30, 2023 Page 5 of 23 considered positive for methamphetamine at 10 ng/ml. See Tr. Vol. 2 at 101. 4
Mother’s results were “far enough above the cut-off” to be consistent with use
of methamphetamine rather than “something such as secondary or
environmental exposure[.]” Id. at 104. The lab did not report a specific
concentration for Father’s sample because the level of methamphetamine was
higher than the concentration range the lab tests for, in which case the industry
standard is to report results as “greater than” the limit. Id. at 103. To a
“reasonable degree of scientific certainty,” Dr. Brown stated Parents used
methamphetamine within twenty-four to forty-eight hours of providing the oral
sample. Id. at 104.
[12] Father acknowledged the results of his June 2022 drug screen showed a
concentration “so high [it was] off the charts of what the lab is able to test for,”
but claimed the last time he used methamphetamine was “last year.” Id. at 32.
He attributed the results to “[h]aving [DCS] come in [his] life.” Id. at 33.
Father—who was thirty-five years old at the time of the hearing—first said he
did not know when he started using methamphetamine, then said it was “[l]ast
week,” id. at 31, then claimed it was when he was thirty years old. Father
explained why he did not submit to another DCS drug screen: “I don’t think I
should have to do any, . . . because the whole allegations [sic] was me beating
4 Both Mother and Father also tested positive for amphetamine. Dr. Brown explained methamphetamine converts into amphetamine as it metabolizes but the process “does not go back the other way.” Id. at 109. In other words, if a person has ingested methamphetamine, both methamphetamine and amphetamine will be present in a drug screen, but if a person has ingested amphetamine alone, there will not be any methamphetamine present. See id.
Court of Appeals of Indiana | Opinion 22A-JC-2836 | June 30, 2023 Page 6 of 23 on my child. That’s the whole reason why we’re here.” Id. at 33. When asked
if he thought his substance use affected his ability to be a safe and sober
caregiver for Child, he replied, “Not one bit.” Id. at 34. He started a substance-
abuse treatment program the year before as ordered in a criminal case but did
not complete the program and was not in any treatment program as of the fact-
finding hearing.
[13] Mother said she started using methamphetamine when she was twenty-eight—
her age at the time of the fact-finding hearing. She testified she “never really
used any before” DCS intervention, and denied using methamphetamine before
Child was removed, despite the positive result from the May 2022 drug screen.
Id. at 117. She claimed she had used methamphetamine only once, after Child
was removed, but also told caseworkers she would test clean in two days if they
returned Child to her care. Mother said “nobody else watches [Child]” except
herself, Father, and now Grandmother and acknowledged Child needs to be
supervised closely. Id. at 114. Father works outside the home, so Mother has
been Child’s full-time caregiver. But Mother did not think her substance abuse
affected her ability to be a safe and sober caregiver because “it has nothing to do
with [Child].” Id. at 121. Mother was diagnosed with bipolar disorder “[w]hen
[she] was little.” Id. at 148. She does not see a therapist and refused to say
whether she takes medication “because that has nothing to do with this.” Id. at
147. Mother was not concerned about Father’s pending criminal charges
related to possession of more than thirty grams of methamphetamine: “[I]t was
Court of Appeals of Indiana | Opinion 22A-JC-2836 | June 30, 2023 Page 7 of 23 not around [Child] or me. It was not in our home or in our vehicles.” Id. at
128.
[14] As for the night Child got out of the house, Father said “[t]he mother was
sleeping and he snuck out.” Id. at 37. Father explained he had gone to a
friend’s house after work that night—which could have been anywhere from
1:00 p.m. to 7:00 p.m.—and was coming home around 1:30 a.m. when Child
was found. Father denied using methamphetamine at his friend’s house that
night. Mother conceded Child needs to be watched closely to “make sure he
doesn’t get out[.]” Id. at 113. Parents said they had cameras and an alarm in
their home even before Child got out, but asserted they followed the safety plan
Craney discussed with them, adding alarms and extra door locks to their home.
They did not notify DCS they made those safety upgrades because they “didn’t
think [they] had to[,]” id. at 131, and did not let DCS into their home to observe
the changes.
[15] Both parents visited Child at Grandmother’s regularly. Mother was there every
day, usually from the time Child got up to the time he went to bed. Father
visited after he got off work at least every other day. Grandmother testified she
has not seen signs of drugs or alcohol when Parents visit: “I know when my
son’s not acting right . . . [and] I didn’t know [Mother] even messed with
[drugs] at all[.]” Id. at 86–87. Grandmother told DCS caseworkers she
believed Parents would “get clean to get [Child] back.” Id. at 87.
Court of Appeals of Indiana | Opinion 22A-JC-2836 | June 30, 2023 Page 8 of 23 [16] When asked why Child was removed from his care, Father said, “I have no
clue.” Id. at 30. Mother believed the only reason Child was removed was
“over child abuse and neglect because of the bruising. . . . [T]here was no other
reason why he should’ve been taken.” Id. at 114. Father admitted he had
offered “[z]ero” cooperation to DCS. Id. at 56. Father repeatedly expressed his
unwillingness to participate in any services “because [he] didn’t ask for [any]
help” and “really honestly” did not think he would benefit from substance-
abuse services. Id. at 59. Similarly, Mother said she had been “doing
everything a mom should do, but no, I am not going to cooperate with [DCS.]”
Id. at 125. She would only take court-ordered drug screens because she felt “it’s
a[n] invasion of [her] privacy, invasion of [her] rights” for DCS to request
screens. Id. Mother denied she had a substance-abuse problem and claimed a
substance-abuse program “is not necessary.” Id. at 121.
[17] Miller, who began the DCS investigation, testified concerns for Child’s safety
still existed even after DCS received an explanation for the bruising.
Independently, Miller observed signs of drug use in Father such as frequent
pacing and a tendency to be high-strung in their interactions. The fact that
Child “constantly is putting things in his mouth” concerned Miller because if
methamphetamine was in the home, Child “could easily get into the
substances[.]” Id. at 167. Miller testified Child “definitely needs supervision at
all times” and requires “a sober caregiver who can be responsive” to his “pretty
high level of needs[.]” Id.
Court of Appeals of Indiana | Opinion 22A-JC-2836 | June 30, 2023 Page 9 of 23 [18] Craney took over as the caseworker on July 29. Craney testified a parent who
is using methamphetamine is unable to provide adequate supervision, and
especially so in this case because Child “doesn’t talk very much [so] he can’t
say if he’s being hurt, no one’s watching him, things like that.” Id. at 197. 5
With Parents’ refusal to participate in subsequent drug screens, DCS had no
way to verify whether Parents had stopped using methamphetamine. And
because Parents had expressed their unwillingness to participate in services
unless ordered by the court to do so, Craney believed Child is a CHINS.
Child’s guardian ad litem, although praising Mother as “a wonderful mother,”
also believed Child is a CHINS and the family could benefit from services: “I
think my biggest concern is . . . substance abuse potentially happening in the
home and [Child] not being able to express to us any concerns with that, so I
would like to see some clean screens from [P]arents[.]” Id. at 212.
[19] In adjudicating Child a CHINS as defined in Indiana Code Section 31-34-1-1,
the trial court entered a thorough and thoughtful order. The trial court’s
notable findings can be summarized as follows: (1) without an assessment and
subsequent drug screens, the court only had evidence of positive screens and
could not know the extent of Parents’ substance abuse; (2) Parents “struggled
with honesty” about their substance use, were not addressing it, and did not
5 The initial report to DCS said Child was autistic and non-verbal. However, there was no evidence of an autism diagnosis, although Mother had scheduled an evaluation for early 2023. And DCS acknowledged “non-verbal isn’t really the right term to describe [Child], but [it is] fair to say he can’t communicate as an average four and a half[-]year[-]old can.” Id. at 186. Mother referred to Child’s communication difficulties as a “speech delay.” Id. at 112.
Court of Appeals of Indiana | Opinion 22A-JC-2836 | June 30, 2023 Page 10 of 23 think it affected Child or their ability to provide a safe home for him, Appellant’s
App. Vol. 2 at 83; (3) Child is a “high-needs child” who requires “sober and
clearheaded” parents who can adequately supervise him at all times, id. at 83,
88; (4) among the “significant risks” to Child are his inability to communicate
whether he is safe and the possibility of medical consequences if he ingested
methamphetamine, id. at 87; (5) Parents’ positive screens coupled with
Mother’s testimony only she and Father previously provided care for Child
means they cared for him while using methamphetamine; (6) parents who
actively use methamphetamine cannot provide adequate supervision; (7) a
“nexus exists between [P]arents’ substance [abuse] and [Child’s] safety”—the
fact that Child managed to leave the home in the middle of the night despite
existing cameras and alarms in the home is connected to a “dangerous lack of
supervision and serious endangerment[,]” id.; and (8) coercive intervention is
required because Parents have not allowed DCS into the home to observe their
compliance with the safety plan, have not complied with requests for drug
screens, and have expressed their unwillingness to cooperate with DCS.
[20] Having determined Child was a CHINS, the trial court entered a dispositional
order on November 1, 2022. Father and Mother now appeal.
Court of Appeals of Indiana | Opinion 22A-JC-2836 | June 30, 2023 Page 11 of 23 Discussion and Decision Standard of Review
[21] In a CHINS proceeding, the State must prove by a preponderance of the
evidence a child is a CHINS as defined by statute. 6 Ind. Code § 31-34-12-3
(1997); see In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). When we review a
CHINS adjudication for sufficient evidence, we neither reweigh evidence nor
judge witness credibility but consider only the evidence and reasonable
inferences supporting the trial court’s decision. In re D.J., 68 N.E.3d 574, 577–
78 (Ind. 2017).
[22] Although “no statute requires special findings in a CHINS fact-finding order,”
In re S.D., 2 N.E.3d 1283, 1288 (Ind. 2014), the trial court here entered sua
sponte findings in its order on the fact-finding hearing. We will “not set aside
the findings or judgment unless clearly erroneous[.]” Ind. Trial Rule 52(A).
As to issues covered by the findings, we review whether the evidence supports
the findings and the findings support the judgment. S.D., 2 N.E.3d at 1287.
“Factual findings ‘are clearly erroneous if the record lacks any evidence or
reasonable inferences to support them [and] . . . a judgment is clearly erroneous
6 Indiana Code Chapter 31-34-1 contains several sections defining when a child is a CHINS. The CHINS petition in this case alleged Child was a CHINS under Indiana Code Sections 31-34-1-1 (parental inability, refusal, or neglect to supervise) and 31-34-1-2 (parental act or omission seriously endangering child’s physical or mental health). Because the physical abuse allegation was resolved before the fact-finding hearing, DCS proceeded only on the neglect allegation. See Tr. Vol. 2 at 219 (DCS stating, “We are not asking the Court to find that [Child] was a victim of physical abuse but rather simply neglect.”).
Court of Appeals of Indiana | Opinion 22A-JC-2836 | June 30, 2023 Page 12 of 23 when it is unsupported by the findings of fact and the conclusions relying on
those findings.’” In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014) (quoting
In re T.W., 859 N.E.2d 1215, 1217 (Ind. Ct. App. 2006)) (alteration in original).
We review any issue not covered by the findings under the general judgment
standard, meaning the judgment will be affirmed based on any legal theory
supported by the evidence. S.D., 2 N.E.3d at 1287.
CHINS Adjudication
[23] The purpose of a CHINS inquiry is to determine whether a child’s
circumstances require services unlikely to be provided without court
intervention. N.E., 919 N.E.2d at 106. Therefore, a CHINS adjudication
focuses on the child’s condition rather than the parents’ culpability. Id. at 105.
[24] The trial court found Child was a CHINS as defined in Indiana Code Section
31-34-1-1 (2019). A CHINS adjudication under this section requires DCS to
prove by a preponderance of the evidence:
(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 . . . to supply the child with necessary food, clothing, shelter, medical care, education, or supervision; . . . and
(2) the child needs care, treatment, or rehabilitation that:
(A) the child is not receiving; and
Court of Appeals of Indiana | Opinion 22A-JC-2836 | June 30, 2023 Page 13 of 23 (B) is unlikely to be provided or accepted without the coercive intervention of the court.
In other words, there must be sufficient evidence supporting three basic
elements: Parents’ actions or inactions have seriously endangered Child, Child’s
needs are unmet, and those needs are unlikely to be met without State
coercion. 7 See S.D., 2 N.E.3d at 1287. The last element guards against
unwarranted State interference in family life because “[n]ot every endangered
child is a child in need of services, permitting the State’s parens patriae intrusion
into the ordinarily private sphere of the family.” Id. For this reason, when
determining CHINS status under Section 31-34-1-1, courts should consider the
family’s condition not just when the case was filed, but also when it is heard.
D.J., 68 N.E.3d at 580.
[25] Because a CHINS adjudication focuses on the condition of the child, “the acts
or omissions of one parent can cause a condition that creates the need for court
intervention.” N.E., 919 N.E.2d at 105. In general, then, a separate analysis as
to each parent is not required. Id. at 106. Although Parents filed separate
appeals, they essentially argue the same thing: the trial court’s CHINS
determination was clearly erroneous because DCS failed to prove (1) any
parental neglect that seriously endangered Child, (2) Child had unmet needs, or
(3) Child’s needs are unlikely to be met without State intervention. See Father’s
7 There is also an age element that is not in dispute here. See Ind. Code § 31-34-1-1.
Court of Appeals of Indiana | Opinion 22A-JC-2836 | June 30, 2023 Page 14 of 23 Br. at 10; Mother’s Br. at 10. They each acknowledge one positive drug test but
argue there was no evidence they used or possessed methamphetamine in
Child’s presence, cared for Child while under the influence of
methamphetamine, or endangered Child by their use of methamphetamine. See
Father’s Br. at 10; Mother’s Br. at 11.
[26] Father and Mother both cite In re S.M., 45 N.E.3d 1252 (Ind. Ct. App. 2015),
and In re Ad.M., 103 N.E.3d 709 (Ind. Ct. App. 2018), for the proposition that a
trial court clearly errs in adjudicating a child a CHINS when “there is no
evidence that the parents have ever used drugs in the presence of the children,
or that there was ever an occasion in which they were impaired by substance
abuse while the children were in their care[.]” Father’s Br. at 14 (quoting S.M.,
45 N.E.3d at 1256); see Mother’s Br. at 12.
[27] In S.M., four children were adjudicated CHINS after the youngest child’s
meconium tested positive for marijuana. See 45 N.E.3d at 1253. The children’s
mother admitted at the fact-finding hearing she used marijuana one time during
her pregnancy, but testified she did not know she was pregnant at the time and
did not use marijuana again after learning of the pregnancy. Within a month of
the CHINS petition being filed, the mother began completing random drug
screens approximately every two weeks, all of which were negative. The
mother also completed a substance-abuse assessment. The assessor said the
mother was “insightful” about her marijuana use and did not recommend any
substance-abuse treatment. 45 N.E.3d at 1253–54. A panel of this Court
reversed the trial court’s CHINS determination because DCS offered no
Court of Appeals of Indiana | Opinion 22A-JC-2836 | June 30, 2023 Page 15 of 23 evidence the children were endangered at any time, their needs were unmet on
even a single occasion, or their needs would not be met without State coercion.
Id. at 1256. The Court specifically noted a lack of evidence showing how
marijuana-positive meconium endangers a child, or any occasion the mother
was impaired by substance abuse while caring for the children.
[28] In Ad.M., marijuana plants were found in the mother’s home, and she tested
positive for marijuana twice after a CHINS petition was filed. 103 N.E.3d at
711-12. A DCS case manager testified the mother was a “chronic” marijuana
user but stated she “really can’t see the way [marijuana use] has impacted” the
children. Id. at 713–14. Following the lead of S.M., the Court in Ad.M.
concluded DCS failed to present sufficient evidence children had been seriously
endangered for purposes of Indiana Code Section 31-34-1-1 because there was
no “specific evidence that the marijuana itself or [the m]other’s use of it
presented a serious danger to the [c]hildren.” Id. at 714.
[29] These cases are easily distinguishable. The parent in S.M. admitted her one-
time drug use and cooperated with DCS. Here, Parents did not admit to using
methamphetamine despite their positive drug screens. Mother claimed she
used methamphetamine only once—after Child was removed—and Father
claimed he last used methamphetamine last year, but the trial court specifically
found Parents’ testimony about their drug use lacked credibility. Parents
exhibited no insight into their substance use, denying they have a problem with
methamphetamine and believing their use of methamphetamine has nothing to
do with Child or their ability to take care of him. Parents’ ongoing drug use can
Court of Appeals of Indiana | Opinion 22A-JC-2836 | June 30, 2023 Page 16 of 23 be inferred from testimony that Mother told DCS caseworkers “she’d test clean
in two (2) days” if Child were returned and having Child back in her home
“would make [her] be clean,” Tr. Vol. 2 at 119, and Grandmother believed
Parents “will get clean” to get Child back, id. at 87. Further, Parents refused to
cooperate with DCS while the CHINS petition was pending even when doing
so could have eased DCS’ concerns.
[30] And contrary to the lack of evidence of endangerment in Ad.M., there is
evidence here Parents’ methamphetamine use presented a serious danger to
Child. Father’s drug use has resulted in legal problems, including a Level 2
charge of dealing in methamphetamine still pending at the time of the fact-
finding hearing. Child has been observed to often put things in his mouth, so
the presence of methamphetamine or any other drug in the home presents a
particular danger to him. 8 Further, although no evidence suggests Parents used
methamphetamine in Child’s presence, Mother is Child’s full-time caregiver
and only she and Father watched Child prior to his removal. As Parents had
positive drug screens before Child was removed, it is reasonable to infer they
were using methamphetamine while caring for Child. Mother acknowledged
8 The State of Indiana’s 2021 Annual Report of Child Abuse & Neglect Fatalities in Indiana—the most recent report available—details sixty child fatalities attributed to caregiver abuse or neglect, with six of the children dying of drug overdoses (primarily fentanyl) and at least two of those children were observed putting loose drugs or paraphernalia in their mouths. State of Indiana, Annual Report of Child Abuse & Neglect Fatalities in Indiana (2021), https://www.in.gov/dcs/files/2021_Annual_Report_of_Child_Abuse_and_Neglect_Fatalities_in_Indiana.p df [https://perma.cc/KFS6-EPQJ]; cf. Ind. Evidence Rule 201 (permitting a court “at any stage of the proceeding” to take judicial notice of a fact that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”).
Court of Appeals of Indiana | Opinion 22A-JC-2836 | June 30, 2023 Page 17 of 23 Child requires close supervision, yet Child was able to leave the family home
undetected in the middle of the night. Craney testified parents using
methamphetamine are unable to provide adequate supervision for children.
When there is a lack of supervision and the home lacks adequate safety
features, any child faces a danger—but especially this child in light of his special
needs. Finally, the Ad.M. court concluded “evidence of one parent’s use of
marijuana and evidence that marijuana has been found in the family home,
without more, does not demonstrate that a child has been seriously endangered
for purposes of Indiana Code Section 31-34-1-1.” 103 N.E.3d at 713–14
(emphasis added). Here, both Mother and Father tested positive for
methamphetamine, and there was additional evidence of neglect beyond the mere
use of the drug. Although Parents equate the marijuana use addressed in S.M.
and Ad.M. with their methamphetamine use, there is evidence in this case of the
specific dangers posed to Child by Parents’ methamphetamine use.
[31] The sole finding (among fifty-two total findings) challenged on appeal by either
Father or Mother is the following:
49) Mother cites to In re K.S., 78 N.E.3d 740 (Ind. [Ct.] App. 2017)[,] in her assertion that DCS has failed to meet its burden in proving [Child] is seriously endangered. However, in that case, [the m]other had used marijuana two months prior to the [c]hild’s birth and DCS did not present any evidence that the child was endangered. In the instant case, [Child’s] parents have used methamphetamine (a more dangerous drug) while actually caring for him and impacting their ability to care for [Child] and provide proper supervision. [Child] has been seriously
Court of Appeals of Indiana | Opinion 22A-JC-2836 | June 30, 2023 Page 18 of 23 endangered as evidenced by his escape from the home in the middle of the night.
Appellant’s App. Vol. 2 at 88. Father takes issue with the statement
“methamphetamine [is] ‘a more dangerous drug’” than marijuana because the
trial court “offer[ed] no methodology by which to determine which is a ‘more
dangerous drug[.]’” Father’s Br. at 15.
[32] First, we note even if this isolated statement is erroneous, the rest of this finding
as well as the other unchallenged findings support the trial court’s CHINS
determination. See Kanach v. Rogers, 742 N.E.2d 987, 989 (Ind. Ct. App. 2001)
(“Superfluous findings, even if erroneous, cannot provide a basis for reversible
error.”). The evidence and reasonable inferences from the evidence show
Parents used methamphetamine while caring for Child, their ability to
adequately supervise him was affected, and he was endangered due to the lack
of proper supervision.
[33] In any case, whether or not methamphetamine is a “more dangerous” drug
than marijuana, methamphetamine is no doubt a different drug than marijuana
and should be treated as such. Methamphetamine is a “highly addictive drug
with potent central nervous system . . . stimulant properties.” DEA Drug Fact
Sheet, Methamphetamine at 1 (2022),
https://www.dea.gov/sites/default/files/2023-
03/Methamphetamine%202022%20Drug%20Fact%20Sheet_1.pdf,
Court of Appeals of Indiana | Opinion 22A-JC-2836 | June 30, 2023 Page 19 of 23 [https://perma.cc/C7R7-XVLC]. 9 Methamphetamine causes effects similar to
cocaine. Id. at 2. But methamphetamine “has a much longer duration of
action, and a larger percentage of the drug remains unchanged in the body.”
National Institute on Drug Abuse (“NIDA”): Methamphetamine Research
Report at 6 (2019), https://nida.nih.gov/download/37620/methamphetamine-
research-report.pdf?v=59d70e192be11090787a4dab7e8cd390,
[https://perma.cc/PVM6-U36S]. In 2021, approximately 32,500 people died
from an overdose involving stimulants other than cocaine—“primarily
methamphetamine.” Id. at 4. In contrast, “[n]o deaths from overdose of
marijuana have been reported.” DEA Drug Fact Sheet: Marijuana/Cannabis
at 3 (2022), https://www.dea.gov/sites/default/files/2023-03/Marijuana-
Cannabis%202022%20Drug%20Fact%20Sheet.pdf, [https://perma.cc/63W6-
7XRW]. And most importantly for this discussion, “[p]arents who use,
manufacture, and/or traffic methamphetamine in the presence of children put
their children at a higher risk of child abuse and neglect.” National Center on
Substance Abuse and Child Welfare: Supporting Children Affected by Parental
Methamphetamine Use at 1 (2021), https://ncsacw.acf.hhs.gov/files/meth-tip-
sheet-children.pdf, [https://perma.cc/EF55-UPAK]. The 2021 Annual Report
of Child Abuse & Neglect Fatalities in Indiana reported methamphetamine was
involved in eleven of the sixty child deaths from caregiver maltreatment and
noted a history of substance abuse was most frequently cited as a stress factor
9 See Evid. R. 201; supra n. 8.
Court of Appeals of Indiana | Opinion 22A-JC-2836 | June 30, 2023 Page 20 of 23 among caregivers. State of Indiana, Annual Report of Child Abuse & Neglect
Fatalities in Indiana (2021),
https://www.in.gov/dcs/files/2021_Annual_Report_of_Child_Abuse_and_Ne
glect_Fatalities_in_Indiana.pdf, [https://perma.cc/KFS6-EPQJ].
[34] In sum, unlike S.D. and Ad.M., this is not a case of a single incident of
marijuana use prompting DCS intervention. Nor is this even a case of a single
incident of methamphetamine use but nothing more. See In re L.P., 6 N.E.3d
1019, 1021 (Ind. Ct. App. 2014) (reversing a CHINS adjudication where DCS
proved a single use of methamphetamine, there was no suggestion the use of
methamphetamine took place in the presence of the child, and the parent
voluntarily and consistently took drug screens with negative results); Perrine v.
Marion Cnty. Off. of Child Servs., 866 N.E.2d 269, 277 (Ind. Ct. App. 2007)
(reversing a CHINS adjudication because “a single admitted use of
methamphetamine, outside the presence of the child and without more, is
insufficient to support a CHINS determination”) (emphasis added). This is a
case of untreated methamphetamine use of unknown frequency and duration
endangering a special-needs child’s safety and well-being.
[35] The trial court’s unchallenged findings support this CHINS determination.
Among them: Parents use methamphetamine; Child is a “high-needs child”
who requires close supervision; as Child’s primary caregiver, Mother
“necessarily” cared for him while using methamphetamine; Parents do not
recognize their use of methamphetamine affects their ability to provide a safe
Court of Appeals of Indiana | Opinion 22A-JC-2836 | June 30, 2023 Page 21 of 23 home for Child; and a “nexus exists between [P]arents’ substance [use] and
[Child’s] safety.” Appellant’s App. Vol. 2 at 87–88.
[36] The family’s condition at the time of the fact-finding hearing had not improved
since the CHINS petition was filed. See In re D.J., 68 N.E.3d at 580–81
(reversing CHINS determination where the trial court’s findings “amply
support[ed] its conclusion” parents needed coercive intervention early in the
CHINS proceeding but “certainly did not show [they] needed such
intervention” by the time of the fact-finding hearing). There was evidence
before the court Parents had used methamphetamine while caring for Child and
did not appreciate the dangers Child faced because of their use. And given the
trial court found Parents’ testimony about their methamphetamine use lacked
credibility, there was no evidence Parents had stopped or were seeking to stop
using methamphetamine. A court need not “wait until a tragedy occurs to
intervene.” In re A.H., 913 N.E.2d 303, 306 (Ind. Ct. App. 2009).
Conclusion [37] DCS proved Child—a four-year-old, special needs toddler—has been seriously
endangered by Parents’ methamphetamine use because their inability to
supervise Child has already led to him leaving the home and roaming outside
alone at night; Child needs care and supervision he is not receiving; and
Parents’ lack of cooperation with DCS shows they are unlikely to provide the
care and supervision Child needs without the coercive intervention of the court.
The trial court’s CHINS determination is not clearly erroneous.
Court of Appeals of Indiana | Opinion 22A-JC-2836 | June 30, 2023 Page 22 of 23 [38] Affirmed.
Crone, J., and Robb, Sr. J., concur.
Court of Appeals of Indiana | Opinion 22A-JC-2836 | June 30, 2023 Page 23 of 23