In Re M.M. (Minor Child), Z.M. (Father) and A.B. (Mother) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 26, 2020
• Docket: 20A-JC-1037
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 26 2020, 9:51 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Z.M. (FATHER) Curtis T. Hill, Jr. Miriam Huck Attorney General of Indiana Columbus, Indiana Katherine A. Cornelius ATTORNEY FOR APPELLANT Robert J. Henke A.B. (MOTHER) Deputy Attorneys General Indianapolis, Indiana William Elliott Happel Thomasson, Thomasson, Long & Guthrie, P.C. Columbus, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re M.M. (Minor Child), October 26, 2020

Z.M. (Father) and Court of Appeals Case No. 20A-JC-1037 A.B. (Mother), Appeal from the Bartholomew Appellants-Respondents, Circuit Court v. The Honorable Kelly Benjamin, Judge Indiana Department of Child The Honorable Heather Mollo, Services, Magistrate

Appellee-Petitioner. Trial Court Cause No. 03C01-1910-JC-5956

Court of Appeals of Indiana | Memorandum Decision 20A-JC-1037 | October 26, 2020 Page 1 of 12 Mathias, Judge.

[1] Z.M. (“Father”) and A.B. (“Mother”) (collectively “Parents”) appeal the

Bartholomew Circuit Court’s order adjudicating their minor child, M.M., a

Child in Need of Services (“CHINS”). Parents argue that the CHINS

adjudication is not supported by sufficient evidence.

[2] We affirm.

Facts and Procedural History [3] M.M. was born on May 24, 2019. On that date, the Department of Child

Services (“DCS”) received a report that Mother had a history of substance

abuse and that the family was homeless. Parents denied both allegations, and a

family case manager observed that they had a home with appropriate supplies

for M.M. A new family case manager was assigned to continue investigation

into the substance abuse allegations. Mother finally met with the case manager

several weeks later.

[4] In June and July 2019, Parents tested positive for amphetamine and

methamphetamine. Father’s Appellant’s App. p. 10. On July 22, 2019, Mother

agreed to participate in an Informal Adjustment and was willing to engage in

services to address her substance abuse issues. Father refused to participate in

the Informal Adjustment.

[5] Mother missed her appointments for substance abuse treatment and failed to

participate in family team meetings. In October 2019, the family case manager

Court of Appeals of Indiana | Memorandum Decision 20A-JC-1037 | October 26, 2020 Page 2 of 12 made several unsuccessful attempts to communicate with Mother at her home.

Also, in October 2019, without notifying her family case manager, Mother left

M.M. in the care of M.M.’s paternal grandmother (“Grandmother”), who has a

criminal history and history of substance abuse issues. Finally, on October 16,

2019, Mother admitted to the family case manager that she and Father were

homeless.

[6] Therefore, on October 18, 2019, DCS filed a petition alleging that M.M. was a

CHINS pursuant to Indiana Code section 31-34-1-1. DCS removed M.M. from

paternal grandmother’s care, and the child was placed in foster care. The

petition noted that Parents also had an open CHINS case for their two older

children, and they refused to engage in services to address their substance abuse

in those proceedings.

[7] A fact-finding hearing was held on December 9, 2019. At that time, neither

parent had a stable home or income, and they wanted M.M. returned to

Grandmother’s care. But due to her prior drug use and criminal history, DCS

could not approve Grandmother as an appropriate placement. Ultimately, the

trial court adjudicated M.M. a CHINS and found in relevant part:

7. Mother admitted to using methamphetamine after entering into the Informal Adjustment.

8. At the time of the Informal Adjustment, Mother and Father had an open CHINS case for two prior born children. Father and Mother were not engaged in required services, including substance abuse treatment.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-1037 | October 26, 2020 Page 3 of 12 9. At the Initial Hearing in the instant case, Father and Mother refused to submit to drug screens requested by DCS but both admitted that they would test positive.

10. Mother entered residential substance abuse treatment at Harbor Lights on November 14, 2019. She has completed detox treatment, inpatient treatment and is now in transitional housing.

11. Father is living at Brighter Days, a homeless shelter. He has been there approximately four to six weeks. Before that, Father admits that he was homeless.

12. Father is not currently looking for employment. He was last employed in 2017.

13. Mother plans to start looking for employment but has not yet done so.

14. Father does not have a driver’s license.

15. Father admits that he has a substance abuse history with methamphetamine. Father reports that he [is] not using now. Father has an appointment with a substance abuse provider, TASC, on December 10, 2019.

16. Father is attending the POPS program and has attended five sessions to date. He reports that it is helping him understand bonds and attachments. If he regularly attends, he could have the program completed by December 19, 2019.

17. Father has a referral with Tara Treatment Center. He would first like to complete the POPS program before entering Tara for inpatient substance treatment.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-1037 | October 26, 2020 Page 4 of 12 18. Father had a positive screen for methamphetamine as recently as October 21, 2019.

19. Both parents are to be commended for entering programs where they are receiving assistance. Mother is to be commended for gaining sobriety and Father for starting services with the POPS program. These first steps are not sufficient to support dismissal of the instant cause. Mother and Father lack a home for [M.M.] to return to and lack a source of income to support the home.

20. Mother has only begun real substance treatment. Inpatient substance treatment is intended to provide stabilization so that an individual can then engage in ongoing outpatient substance treatment while returning to the community. Mother is just now ready to start that portion of treatment.

21. Father has unaddressed substance treatment needs.

22. The initial reasons that resulted in DCS involvement have not yet been adequately addressed.

Mother’s Appellant’s App. pp. 21–22; Father’s Appellant’s App. pp. 17–18.

[8] At the Dispositional Hearing held on January 7, 2020, the trial court was

encouraged by Mother’s continued progress and sobriety. Mother was moving

from inpatient treatment at Harbor Lights to a residential facility to continue

her outpatient treatment. The trial court indicated that M.M. should be

returned to Mother’s care when deemed appropriate by DCS service providers.

Parents were ordered to participate in services including continued substance

Court of Appeals of Indiana | Memorandum Decision 20A-JC-1037 | October 26, 2020 Page 5 of 12 abuse treatment, random drug screening, and home-based counseling. Parents

appeal the CHINS adjudication.

Discussion and Decision [9] Parents argue that the CHINS adjudication is not supported by sufficient

evidence. It is well-settled that

[i]n all CHINS proceedings, the State must prove by a preponderance of the evidence that a child is a CHINS as defined by the juvenile code. When reviewing a CHINS adjudication, we do not reweigh evidence or judge witness credibility and will reverse a determination only if the decision was clearly erroneous. A decision is clearly erroneous if the record facts do not support the findings or if it applies the wrong legal standard to properly found facts.

V.B. v. Ind. Dep’t of Child Servs., 124 N.E.3d 1201, 1208 (Ind. 2019) (citations

and quotation marks omitted).

[10] DCS alleged that M.M. was a CHINS pursuant to Indiana Code section 31-34-

1-1, which provides that a child under the age of eighteen is a CHINS under the

following circumstances:

(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

Court of Appeals of Indiana | Memorandum Decision 20A-JC-1037 | October 26, 2020 Page 6 of 12 (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.

[11] “That final element guards against unwarranted State interference in family life,

reserving that intrusion for families ‘where parents lack the ability to provide for

their children,’ not merely where they ‘encounter difficulty in meeting a child’s

needs.’” J.B. v. Ind. Dep’t of Child Servs., 2 N.E.3d 1283, 1287 (Ind. 2014)

(quoting Lake Cty. Div. of Fam. & Child. Servs. v. Charlton, 631 N.E.2d 526, 528

(Ind. Ct. App. 1994)). When considering this requirement, “courts should

consider the family’s condition not just when the case was filed, but also when

it is heard.” Gr.J. v. Ind. Dep’t of Child Servs., 68 N.E.3d 574, 580 (Ind. 2017)

(quotations omitted). “Doing so avoids punishing parents for past mistakes

when they have already corrected them.” Id. at 581.

[12] Parents argue that DCS failed to present any evidence to prove that M.M. was

seriously endangered by their substance abuse and homelessness. See Mother’s

Appellant’s Br. at 12 (“Despite the fact that the hearing is supposed to be

focused on the condition of the child, DCS presented no evidence as to how or

if Mother’s issues had any effect on” M.M.); Father’s Appellant’s Br. at 11.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-1037 | October 26, 2020 Page 7 of 12 (“The Trial Court made twenty two (22) findings of fact and none mention the

impact, if any, that parents’ actions or inactions had on M.M.”).

[13] Father’s compares the facts in this case to In re S.M., 45 N.E.3d 1252 (Ind. Ct.

App. 2015), where our court reversed a CHINS adjudication because the

mother’s prior history of substance abuse did support the trial court’s finding

that the child was a CHINS. Id. at 1256–57. In that case, although the mother

had a history of sporadic marijuana use and the child was born with marijuana

positive meconium, each drug screen the mother provided during the CHINS

proceedings was negative for illegal substances. Id. at 1256. The mother also

stopped using marijuana when she realized she was pregnant. Id.

[14] Here, Parents have a significant history of illegal substance abuse, which was

documented by DCS and the trial court due to the CHINS proceedings

concerning Parents’ two older children. Father continued to test positive for

methamphetamine after the CHINS petition in this case was filed, and although

he was enrolled in a parenting class, he had not started substance abuse

treatment on the date of the fact-finding hearing. Mother continued to use

methamphetamine while the Informal Adjustment was in place. On the date of

the CHINS fact-finding hearing, Mother had been sober for over thirty days,

and she continued to maintain her sobriety. Mother has taken significant steps

toward treating her substance abuse issues and was finishing an inpatient

substance abuse treatment program.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-1037 | October 26, 2020 Page 8 of 12 [15] However, neither parent had a home for M.M. On the date of the dispositional

hearing, Mother was planning to transition to VOA housing in Indianapolis, a

transitional housing program where M.M. could live with her. The trial court

was encouraged by Mother’s progress and stated that as soon as Mother had

moved and the service providers agreed that it was appropriate, M.M. should be

placed in Mother’s care. After years of substance abuse, Mother was just

entering the phase in her treatment where she would be required to maintain

sobriety on her own. We are impressed with Mother’s progress but agree with

the trial court’s concern that M.M. should not be returned to Parents’ care until

one or both parents is able to provide a sober and stable home environment.

[16] Moreover, M.M. was five months old when she was removed from Parents’

care and was entirely dependent on Parents. As Parents note in their briefs,

DCS did not prove that Parents used methamphetamine in M.M.’s presence.

However, Parents admitted to, or tested positive for, methamphetamine

multiple times after M.M.’s birth. Exposing a child to an environment of illegal

drug use, particularly a child totally dependent on Parents for her care,

endangers the child’s mental and physical condition. See In re Des.B., 2 N.E.3d

828, 837–38 (Ind. Ct. App. 2014) (citing In re J.L., 919 N.E.2d 561, 564 (Ind.

Ct. App. 2009)). Under the circumstances presented here, it is reasonable to

assume that M.M. was in Parents’ care and custody when they used or were

under the influence of illegal substances.

[17] For all of these reasons, DCS proved that M.M. was seriously endangered by

Parents’ substance abuse issues and homelessness.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-1037 | October 26, 2020 Page 9 of 12 [18] Parents also argue that M.M.’s basic needs were being met because they left

M.M. in paternal grandmother’s care. Father’s Appellant’s Br. at 12; Mother’s

Appellant’s Br. at 15. In support of this argument, Parents attempt to analogize

the facts of this case to those in In re S.K., 57 N.E.3d 878 (Ind. Ct. App. 2016).

In that case, the father, who had custody of his four children, lost his job and

had a period of housing instability. Id. at 880. Therefore, he arranged for the

children to live with their mother. Id. On the date of the CHINS fact-finding

hearing, the father had obtained stable housing. Id. at 882. While the children

were in their mother’s care, she tested positive for methamphetamine and

amphetamine, but her subsequent drug screens were negative. Id. at 880. The

evidence at the fact-finding hearing proved only an isolated use of

methamphetamine. Id. at 883. There was also no evidence that the children

needed care or treatment that would not be provided without coercive

intervention of the court. Id. (“In fact, the parents took deliberate actions to

avoid placing the children in the endangering condition of homelessness.”)

[19] Unlike the circumstances in S.K., Parents did not have stable housing on the

date of the fact-finding hearing, and Grandmother was not an appropriate

caregiver for M.M. During the period the Informal Adjustment was in place,

Parents became homeless and left M.M. in paternal grandmother’s care,

violating the terms of the Informal Adjustment. Paternal grandmother’s

housing is not stable, and she was also homeless in December 2019. A few days

before the fact-finding hearing, Grandmother moved into her sister’s home,

which is occupied by Grandmother’s sister and her husband, sister’s adult

Court of Appeals of Indiana | Memorandum Decision 20A-JC-1037 | October 26, 2020 Page 10 of 12 children and their minor children. Grandmother sleeps in the living room

because the other four bedrooms in the house are occupied.

[20] Importantly, Grandmother is also not approved for placement by DCS due to

her criminal history. DCS initially placed Parents’ two older children with

Grandmother when those CHINS proceedings were initiated in 2017. However,

the children were removed from Grandmother after she committed shoplifting

while the children were in her care. Ex. Vol., p. 21. Grandmother also has a

conviction for possession of methamphetamine. For these reasons, Parents

knew that Grandmother was not an appropriate placement for M.M. This

evidence is sufficient to prove that M.M.’s basic needs were not being met.

[21] Finally, Parents claim that the evidence is insufficient to support the trial court’s

finding that M.M.’s needs will not be met without the coercive intervention of

the court. See Father’s Appellant’s Br. at 13 (“Many parents experience

economic misfortune or substance issues, and so long as the child is being cared

for by the parents or other responsible individuals there is no need for state

intervention.”); Mother’s Appellant’s Br. at 16–17 (acknowledging Mother’s

substance abuse issues and arguing that Parents’ decision to place M.M. in

paternal grandmother’s care “shows that Mother is capable of making

responsible decisions for the well-being of [M.M.], even when that means that

[M.M.] will not be living with her”).

[22] On the date of the fact-finding hearing, Parents were not able to provide a safe

and stable home for M.M. Father has not addressed his substance abuse issues,

Court of Appeals of Indiana | Memorandum Decision 20A-JC-1037 | October 26, 2020 Page 11 of 12 he did not have any income, and he was homeless. Mother was taking

advantage of the services DCS offered and was making significant progress. But

she was still in inpatient treatment in January 2020. On the date of the

dispositional hearing, Mother was planning to move to transitional housing and

continue outpatient substance abuse treatment. Baby M.M. is entirely

dependent on her caregivers to provide for her needs. She requires a stable,

sober home that Parents were not able to provide on the dates of the fact-

finding and dispositional hearings.

[23] For these reasons, we conclude that DCS presented sufficient evidence that

M.M.’s needs will not be met without the coercive intervention of the court.

Conclusion [24] The trial court’s order adjudicating M.M. a CHINS is supported by sufficient

evidence.

[25] Affirmed.

Bradford, C.J., and Najam, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-1037 | October 26, 2020 Page 12 of 12