MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 15 2018, 10:21 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 Daniel G. Foote Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Matter of K.J. and J.J., November 15, 2018 Minor Children, and J.J., Court of Appeals Case No. Mother, 18A-JC-699 Appellant-Respondent, Appeal from the Marion Superior Court v. The Honorable Marilyn A. Moores, Judge The Indiana Department of The Honorable Heather Welch, Child Services, Special Judge Appellee-Petitioner. Trial Court Cause Nos. 49D09-1707-JC-2391 49D09-1707-JC-2392
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 1 of 23 [1] J.J. (“Mother”) appeals the trial court’s order determining that K.J. and J.J. (the
“Children”) are children in need of services (“CHINS”). Mother raises two
issues which we consolidate and restate as whether the evidence is sufficient to
support the court’s determination that the Children are CHINS. We affirm.
Facts and Procedural History
[2] On June 12, 2016, Mother gave birth to K.J. On June 29, 2017, this Court
issued an opinion reversing the CHINS adjudication of K.J. See In re Matter of
K.S., 78 N.E.3d 740, 742 (Ind. Ct. App. 2017).1 We stated:
Mother specifically contends that DCS failed to prove by a preponderance of the evidence that [K.J.’s] physical or mental condition was seriously impaired or seriously endangered as a result of Mother’s inability, refusal, or neglect to supply [K.J.] with necessary food, clothing, shelter, medical care, education, or supervision. We agree.
As set forth in the relevant CHINS statute, it is DCS’s burden to prove that a parent’s actions or inactions have seriously endangered her child and that the child’s specific needs have not been met. The trial court adjudicated [K.J.] to be a CHINS after concluding that Mother used marijuana and did not have stable housing. As to the first finding, Mother admitted that she had used marijuana two months before [K.J.’s] birth to increase her appetite during pregnancy. However, there is no evidence showing how, specifically, Mother’s use of marijuana two months prior to giving birth seriously impaired or seriously endangered [K.J.]. DCS presented no evidence that he tested positive for marijuana, or, even if he did, how a positive
1 In In re Matter of K.S., K.J. was referred to as K.S. On August 16, 2017, this Court’s opinion in In re Matter of K.S., 78 N.E.3d 740, was certified.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 2 of 23 marijuana test would have or did endanger him. See In the Matter of S.M., 45 N.E.3d 1252, 1255-56 (Ind. Ct. App. 2015) (concluding that there was no evidence presented that infant H.G. was endangered when he was born with marijuana-positive meconium). In fact, testimony at the hearing revealed that during his first days of life, [K.J.] was “feeding well” and that there was nothing other to note. (Tr. 25). During supervised visits with [K.J.] shortly after his birth, Mother was engaged and loving and “did everything you expected a mother to do.” (Tr. 53). At the time of the fact-finding hearing, [K.J.’s] foster mother testified that he was developing well and meeting his milestones.
As to the second finding, DCS presented absolutely no evidence that Mother did not have stable housing. Rather, our review of the evidence reveals that within twenty-four hours of [K.J.’s] birth, Mother told FCM Johnson that she and her son planned to live with her cousin when they were discharged from the hospital. Mother’s testimony at the fact-finding hearing confirmed that Mother had moved in with her cousin and had lived there for several months. Mother’s statement to Case Manager Simpson that she felt that she “wasn’t really wanted” at her cousin’s house does not support the juvenile court’s finding that Mother did not have stable housing. (Tr. 48). Although the trial court may have been concerned that at some point, Mother and [K.J.] would be asked to move out of Mother’s cousin’s house, at the time of the fact-finding hearing, this had not happened. See S.M. (explaining that future concerns rather than present facts are not enough to support a CHINS adjudication). Based upon the totality of this evidence, there is insufficient evidence to support the CHINS adjudication.
Id. at 745.
[3] On July 13, 2017, Mother gave birth to J.J. On July 24, 2017, the Indiana
Department of Child Services (“DCS”) filed a petition alleging that the
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 3 of 23 Children were CHINS based in part upon Mother’s failure to provide them
with a safe and appropriate living environment free from substance abuse. That
same day, the court held an initial hearing and ordered the continued removal
of K.J. from Mother’s care, and placement of J.J. with Mother in home
contingent upon her participation in a substance abuse assessment, home based
case management, home based therapy, and random screens and following all
recommendations. The court ordered that Mother have no less than six hours
per week of supervised parenting time with K.J.
[4] On September 6, 2017, the trial court held a pretrial conference, scheduled an
adjudication hearing for November 6, 2017, and ordered Mother to submit to a
drug screen within forty-eight hours. On September 8, 2017, Mother filed a
Motion to Dismiss or, in the Alternative, Motion for Immediate Temporary
Trial In-Home Visitation or Relative Care. She argued that the case should be
dismissed based upon this Court’s previous opinion reversing the CHINS
adjudication of K.J., res judicata, and the allegations in DCS’s petition. In the
alternative, she requested that the court order immediate temporary trial in-
home visitation with K.J. That same day, the court entered an order indicating
that it would take the motion under advisement until the September 19, 2017
hearing. On September 15, 2017, DCS filed a request for removal of J.J. from
in-home placement with Mother, objected to Mother’s request for dismissal,
and objected to immediate placement of K.J. in home with Mother.
[5] On September 19, 2017, the court held a hearing and entered an Order of
Detention with respect to J.J. finding that it was in the best interests of the child
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 4 of 23 to be removed from the home environment, and that remaining in the home
would be contrary to the child’s welfare because of: an inability, refusal or
neglect to provide shelter, care, and/or supervision; the child needing
protection that cannot be provided in the home; Mother’s continued use of
marijuana prior to and following this child’s birth; Mother’s instability of
housing; Mother’s lack of knowledge as to where [J.J.] is physically at this time;
Mother’s failure to participate in court ordered services designed to assure the
child’s safety; and Mother’s lack of communication with DCS, the guardian ad
litem, and service providers. The court ordered Mother to relinquish J.J. to
DCS custody and also denied her motion to dismiss. It ordered her to
participate in random drug screens, a substance abuse assessment, home based
case management, home based therapy, and supervised parenting time.
[6] On November 6, the court held a hearing. Family Case Manager Dermita
Johnson (“FCM Johnson”) testified that she came into contact with Mother on
July 14, 2017, at Community Hospital when J.J. was one or two days old.
FCM Johnson later went to Mother’s home where Mother informed her that
she knowingly, while pregnant, smoked marijuana every other day. She
testified that she attended a child and family team meeting on July 31, 2017,
which was a date confirmed by Mother, but Mother did not attend.
[7] Carol Cliff, a visit supervisor and parent aid, testified that she received a referral
in July for supervised visits between K.J. and Mother. She testified that it was
initially “a little hard” to contact Mother, but eventually developed a schedule
with Mother’s participation. Transcript Volume II at 54. She testified that the
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 5 of 23 schedule did not work out well because Mother had a difficult time with
transportation and that the only visit Mother had was when she provided
transportation for her. For the following visit, Mother had stated that she had
transportation to the visit, but she did not show up. For the next scheduled
visit, Mother texted Cliff about a half hour before the visit to cancel it due to
“her being exhausted from being up with the new baby.” Id. at 56. Cliff
subsequently attempted to make contact with Mother by calling and texting but
was unable to do so to proceed with other visits.
[8] Bethany Crismore, a therapist, testified that she received a referral on August
15, 2017, and was assigned to perform an intake with Mother to begin services.
Crismore made eight phone calls and went to Mother’s apartment to attempt to
meet her face to face, but Mother did not answer the door. Crismore testified
that she connected with Mother on four phone calls, but Mother twice told her
she was busy and asked if she could call her back, one time said she had a
kidney infection and that she would call her back, and another time Mother did
not “actually say anything” to her. Id. at 65. Crismore stated that Mother did
not call her back, Mother did not complete an intake, and the referral was sent
back on August 30, 2017.
[9] Latrice Smith (“Smith”), a home based case manager, testified that she received
a referral for Mother at the end of September for case management and
supervised visits. She testified that she spoke with Mother in “maybe mid-
September to schedule a visit,” but “[t]hat did not happen.” Id. at 69. She
stated that she supervised eight visits between Mother and K.J. and J.J.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 6 of 23 beginning on September 19th. When asked about the visits, Smith testified that
they never had any major incidents, there was “some lack in parenting” in
being able to manage both children at the same time, and that K.J. walked off a
couple of times in the parking lot because Mother struggled with the “logistics
of getting both kids to the car.” Id. at 70-71. She also testified that K.J.
wandered off in the visit area, and that she had to ask Mother to go get K.J.
“maybe at least four times.” Id. at 72.
[10] Smith also testified that she provided transportation to Mother and picked her
up “from a couple of motels and from a house – apartment.” Id. at 74. Mother
told her that she was having issues paying for the motel and asked to borrow
some money. She testified that she made a plan to meet Mother two times per
week regarding employment, housing, and parenting skills, but she met with
her only once in six weeks because Mother cancelled a number of meetings due
to job interviews “or something like that.” Id. at 78. Smith testified that there
were some “no call, no shows” with respect to visits with the Children and that
one visit ended early so that Mother could make sure she entered the home
where she was staying. Id. at 78. On cross-examination by the guardian ad
litem’s counsel, Smith stated that she reduced the available visits from six hours
to three hours because Mother was having issues making it both days for six
hours.
[11] Brittany Smith (“Brittany”), a home based case management service provider,
testified that she received a referral for Mother on October 13, 2017, contacted
Mother, and scheduled an intake for October 18th. She stated that she
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 7 of 23 informed Mother that she could meet her at Mother’s home, Mother told her
that was not possible, and they scheduled to meet at a local library. Brittany
went to the library and called Mother and Mother stated that she “wasn’t going
to be able to get there right away because her ride had something wrong with
her car and had to get it fixed.” Id. at 108. They rescheduled for October 23rd,
but Mother sent Brittany a text message that morning saying that she could not
obtain a ride. Brittany offered to meet Mother where she was, but Mother said
“that wasn’t possible.” Id. They rescheduled for the next day, but Mother
again said she “didn’t have a ride to be able to meet,” Brittany told her that she
could meet Mother where she was, and Mother said she was at her cousin’s
home and her cousin did not have furniture yet. Brittany told her that was fine,
but Mother declined to meet with her. Brittany scheduled a meeting for
October 27th and told Mother she would have to close out the referral if Mother
cancelled, Mother expressed understanding, and Brittany was unable to reach
Mother on the day of the appointment.
[12] Taylor Yeskie, a home based caseworker and visitation facilitator, testified that
she was assigned to Mother in March 2017 and provided transportation for
prenatal doctor appointments and trips to the pharmacy, work, and court. She
testified that Mother told her that she would screen positive for marijuana and
that she used marijuana in order to have an appetite. Yeskie stated that when
Mother picked out chips and a drink at a gas station, Yeskie told her that she
could get peanut butter and bread that would last her longer than just that
evening because Mother was complaining that she was not making enough
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 8 of 23 money to eat. Mother twice “no showed on” Yeskie, and Yeskie subsequently
“basically just did the transportation to and from wherever [Mother] needed.”
Id. at 119.
[13] Randi Turner, a home based caseworker, testified that he was Mother’s
caseworker from June until August 2017, and that he saw Mother once a week
in the beginning but “it just kind of died off.” Id. at 128. He stated that he
made efforts to contact Mother but would receive no response and closed the
referral.
[14] On November 9, 2017, the court continued with the hearing. Cindy
Strietelmeier, an employee of Families First who processed referrals from DCS
and initiated the first appointments for all clients, testified that she received a
referral from DCS for Mother for a substance abuse assessment and contacted
her on June 29, 2017. Strietelmeier informed Mother that assessments can
occur anytime between 10:00 a.m. and 3:00 p.m. on Mondays and Thursdays.
Mother agreed that she would do a walk in on one of those days but never
showed up.
[15] Guardian ad litem Greg Huff (“GAL Huff”) testified that he was assigned to
the Children on July 24, 2017. He stated that he met with Mother on August 2,
2017, at the Beech Hollow address,2 that Mother admitted she tested positive
for marijuana at the initial hearing, that she stated she was “possibly interested
2 At some points in the transcript, Beech Hollow is spelled Beech Hallow.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 9 of 23 in leaving [K.J.] where he was in the foster home because she hadn’t seen him
in so long . . . as long as she could keep [J.J.] with her,” and that she was in her
apartment “for a while but she wasn’t going to be there indefinitely.”
Transcript Volume III at 17. GAL Huff testified that he was somewhat
concerned with J.J. remaining in the home and that he attempted to contact
Mother to see J.J. but was unsuccessful in reaching her at Beech Hollow or
elsewhere. He stated his agreement that Mother complete services related to
her stability and substance abuse “[b]ecause it’s necessary for the children” and
“[t]hey need the stability of a home and a mother that is going to be able to be
there that does not have a history of homelessness and concerns regarding
substance abuse.” Id. at 28. When asked why it was important that Mother
verify her sobriety, he answered: “Because if she’s – if she can do that, that’s a
positive. But in this situation, I don’t see that that’s happening at this time
because of the usage of the marijuana that she had been doing quite a bit of.”
Id. at 34-35. He testified that he did not believe the Children would be safe with
Mother due to her homelessness and marijuana usage. He also testified that
Mother’s inconsistent pattern of visitation with the Children was a concern.
[16] Mother testified that she was living at the same Beech Hollow address and that
she gave an address on Byrum Avenue in K.J.’s case because that was where
she was staying when K.J. came home from the hospital. She testified that her
case manager picked her up at different hotels because her friend was staying
there. She testified that she used marijuana when she was pregnant with K.J.
and J.J., and that she used marijuana a couple of months after J.J. was born to
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 10 of 23 calm her nerves. When asked if J.J. was with someone else for a day or part of
a day, she answered: “She didn’t never go with nobody.” Id. at 63. When
asked “[e]xcept for the day you came to court,” Mother answered affirmatively.
Id. When asked “[a]nd she was with her father,” Mother answered: “Yeah, but
the only reason I did that was because I had to take the bus.” Id. at 64. She
testified that she would not leave her child in the care of someone who uses
marijuana because she “wouldn’t leave my child with nobody.” Id. The
following exchange then occurred:
Q. Okay, but why wouldn’t you want – would you want somebody who’s high on marijuana taking care of your kids?
A. What do you mean? I don’t be around nobody that smokes. My roommate don’t smoke.
Q. My question is, would you – if you knew the caregiver, if you knew who you were going to have babysitting your child, if you knew they were using marijuana, would you allow them to watch your child?
A. Yeah, there’s nothing wrong with marijuana. They prescribe it in California. It’s free, like there’s nothing wrong with marijuana. You’re not going to hurt a child off of smoking marijuana. I’m sorry. I could see if it was heroin or all them other drugs, then no – hell no. I’m not stupid.
Id.
[17] Mother testified that she did not have a job, that she receives food stamps and
TANF, she does not pay rent, and that she pays for only “lights.” Id. at 76.
When asked why she frequently missed visits with the Children, she stated:
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 11 of 23 “Well, a couple of times I had interviews. A couple of times it was because of
the caseworker – because of the caseworker but (indiscernible).” Id. at 77.
When discussing marijuana, the guardian ad litem’s attorney asked mother,
“And [J.J.] was in your care when you used?” Id. at 80. Mother answered:
“Yes.” Id. She testified that she obtains her marijuana “from people,” that she
does not buy marijuana, and that people who are not her friends give it to her.
Id. She stated that when she goes out to obtain the marijuana she leaves J.J.
with her roommate. She testified that J.J.’s father was Isaiah but she did not
remember his last name and that she did not know K.J.’s father. She stated that
she was in a relationship with a person who she considers her boyfriend but she
did not know his name, where he lived, whether he had a job, or the names of
his children. Mother denied having sex in exchange for money, marijuana, or
housing.
[18] On November 16, 2017, the court continued with the hearing. Angela Snyder,
a registered nurse, testified that she discussed Mother’s substance abuse history
with her and that Mother said she had smoked marijuana but not in a long
time. She testified that Mother did not want to talk to the case worker at the
hospital or anyone in DCS and was “very upset.” Transcript Volume IV at 37.
[19] Smith, the home based case manager, testified that a visitation was scheduled at
noon on November 10th, she picked up the children and arrived at the office,
but Mother did not show. She testified that she texted Mother but did not
receive a timely response.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 12 of 23 [20] Family Case Manager Nokwakhe Fuyana (“FCM Fuyana”) testified that she
was assigned to work with K.J. in December 2016. Between then and March
2017, FCM Fuyana attempted to communicate with Mother but Mother would
not respond to any of her emails. After FCM Fuyana eventually received
Mother’s phone number, Mother said that she had no reason to speak with
DCS and later stated that she was busy and could not talk to her on the phone.
Mother also did not respond to text messages. FCM Fuyana testified that she
discussed drug screens with Mother in March 2017 and that Mother refused to
take a drug screen. She testified that she attended the June 8, 2017 hearing, that
she had a discussion with Mother on that date about services and asked Mother
to screen before and after the hearing, and Mother refused. She also testified
that Mother refused to screen after the July 25th hearing. She stated that
Mother participated in choosing a date for a team meeting, the meeting was
scheduled for July 31st, she called Mother prior to the meeting but Mother
would not answer her phone, she texted Mother, and Mother told her that she
was babysitting and trying to make some income and she would not make it to
the meeting. Mother also failed to attend a subsequent team meeting and did
not respond to FCM Fuyana’s calls or text messages. She testified that Mother
refused to perform a screen after the November 9th hearing. FCM Fuyana
recommended continued placement of K.J. and J.J. with the current foster
parents and that services continue for Mother including home based therapy,
home based casework, substance use assessment, and supervised visitation.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 13 of 23 [21] FCM Fuyana testified that she had a BSA in psychology and sociology, a BSA
Honors in social development, and went through Core Training from June 2015
until October 2015. She testified that drug use by a parent is a safety concern
and “[t]here is more concern if the child is very young because the child cannot
make decisions – safety decisions on their own.” Id. at 88. She also testified
that she was recommending home based case management because it assists
clients with maintaining stability in housing. When asked what caused her to
request that J.J. be removed from Mother in September, she stated:
At that time I had made numerous attempts – um – to see [J.J.] at the home. And one of my duties as a family case manager is to have face to face contact with the child in the home – uh – to determine if the child is safe in the home. Is the child in a secure environment. If the child is [in] a stable environment. If the environment has all the needed utilities. And with [J.J.] I was not able to do that. Um – with [J.J.] I was not able to also establish if the child was in a drug free environment.
Id. at 94. She indicated that she was concerned for J.J.’s safety at the time she
recommended her removal from Mother’s care. When asked why, she
answered:
Because . . . we had established – um – [Mother’s] substance abuse – continued substance use. And we have not found a home where [Mother] was currently living with the child. And I made repeated attempts – um – to get to see the child in the home or let alone just to see the child. Um – even at the date of removal I was not able to see the child at the day of removal. It had to be another DCS worker because [Mother] would not avail the child. So, it’s a cause of safety concern for DCS not to be able to have access to the child as in – as in when needed. Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 14 of 23 Id. at 97.
[22] On February 8, 2018, the court entered a nineteen-page order adjudicating the
Children as CHINS. The court found that Mother had used marijuana, had
unstable housing, was not able to meet her own basic needs or those of the
Children, and lacked the parenting skills necessary to keep the Children safe.
The court also found that Mother’s inconsistency with visits was harmful to her
relationship with the Children, that Mother would not participate in services
without the coercive intervention of the court, that Mother failed to comply
with court orders, that her continued drug use was detrimental to the health and
well-being of her children, and that Mother’s lack of employment causes
concern about her ability to provide food, clothing, and shelter for the Children.
The court concluded that the Children were both CHINS “because they are
victims of neglect as pursuant to I.C. § 31-34-1-1 as evidence[d] by Mother’s
unstable housing, ongoing substance abuse during pregnancy and after, and
failure to engage in the services designed to allow the children to remain in her
care.” Appellant’s Appendix Volume II at 202. The court also stated: “It was
clear from Mother’s demeanor during the three-day hearing that she did not
take this hearing seriously and did not take parenting small children seriously.
She would roll her eyes at the testimony of witnesses she did not like, make
other inappropriate faces, and have outbursts during the trial.” Id. at 203-204.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 15 of 23 [23] On March 1, 2018, the court held a dispositional hearing at which Mother was
not present and her substitute counsel did not know where she was.3 FCM
Fuyana testified that she requested random drug screens and a substance abuse
assessment because Mother had admitted to drug use before, during, and after
pregnancies of K.J. and J.J. She testified that Mother had shown instability in
terms of housing, that “nobody has actually made any contact with her in the
said address that she gave us,” that Mother has “been known to move from
hotel to hotel,” that she has shown “instability for transportation issues,” has
issues with her financial situation, and has shown that she is not able to manage
herself. Transcript Volume V at 15. She also testified that Mother had not
voluntarily participated in any services. She indicated that Mother had not
made any progress in alleviating her concerns with Mother’s housing since the
November 16, 2017 hearing. On cross-examination by Mother’s counsel, she
testified that Mother told her where she was living and that she went to the
address only to find a person who kept insisting that Mother does not reside
there. On redirect, FCM Fuyana testified that Mother has missed and has
refused to take drug screens.
[24] Mother’s counsel requested that the court bifurcate the hearing so that Mother
could be present. Counsel for the guardian ad litem and DCS objected. The
court called Mother’s cell phone and then FCM Fuyana called Mother’s cell
3 Rachel Johnson stated at the beginning of the hearing that she was filling in for Mother’s counsel that morning.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 16 of 23 phone, but there was no answer. The court clarified that FCM Fuyana
reminded Mother of the date of the hearing, and Mother’s substitute counsel
indicated that she knew Mother’s counsel and Mother had been in contact
about the hearing. The court stated in part:
[Mother] just has this history of – um – not appearing and then kind of like today, I anticipated she wasn’t gonna answer. Cause they then do the same thing, right, Ms. – and you then call her and try to say hey, we – we wanna give you a ride. We wanna make this happen, we wanna help you. And so – uh – she’s just elected not to participate.
Id. at 42-43.
[25] The court also stated: “I watched [Mother] very closely because she – she had
several outbursts when other people were on the witness stand. Um – when she
was on [the] witness stand her demeanor I found to be – uh . . . I didn’t believe
everything she was telling the Court and so I had concerns.” Id. at 53. The
court also stated:
[Mother] admitted that when she was staying for a short time at the Beech [Hollow] address that the lady – uh – who she was staying with – she let the lady hold her baby. She went out and she – uh – smoked marijuana and she came back and cared for the baby. And this is within – um – August or September. The baby was born in July. The baby was little. Um – and she quite frankly and I think she – she was very honest with the Court. She didn’t see why that’s a problem. She thought it was okay to use controlled substances or alcohol and then care for a baby. She didn’t think it was an issue. She can’t understand why the Court would find that to be an issue.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 17 of 23 Id. at 55.
[26] On March 7, 2018, the court entered a dispositional order, incorporated its
February 2018 order, found that Mother does not have stable housing or
employment, uses marijuana on a regular basis and has done so while pregnant
with both children and while caring for J.J., demonstrated erratic and unusual
behavior, refused to take drug screens, and elected to not appear in court,
cooperate with DCS, or exercise regular parenting time.
Discussion
[27] The issue is whether sufficient evidence supports the trial court’s determination
of the Children’s status as CHINS. In reviewing a trial court’s determination
that a child is in need of services, we neither reweigh the evidence nor judge the
credibility of witnesses. In re S.D., 2 N.E.3d 1283, 1286-1287 (Ind. 2014), reh’g
denied. Instead, we consider only the evidence that supports the trial court’s
decision and reasonable inferences drawn therefrom. Id. at 1287. As to issues
covered by findings, we apply the two-tiered standard of whether the evidence
supports the findings and whether the findings support the judgment. Id. We
review remaining issues under the general judgment standard, under which a
judgment will be affirmed if it can be sustained on any legal theory supported
by the evidence. Id. “We will reverse a CHINS determination only if it was
clearly erroneous.” In re D.J. v. Indiana Dep’t of Child Servs., 68 N.E.3d 574, 578
(Ind. 2017). 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. Id.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 18 of 23 [28] Ind. Code § 31-34-1-1 provides:
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; 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.
[29] The CHINS statute, however, does not require that a court wait until a tragedy
occurs to intervene. In re A.H., 913 N.E.2d 303, 306 (Ind. Ct. App. 2009).
Rather, a child is a CHINS when he or she is endangered by parental action or
inaction. Id. The purpose of a CHINS adjudication is not to punish the
parents, but to protect the child. Id.
[30] Mother argues that the trial court’s findings regarding her use of marijuana are
insufficient to support the CHINS determination. She argues that she testified
that she never used marijuana around the Children and points out that
possession of small amounts of marijuana is only a class B misdemeanor in
Indiana, and other states have laws legalizing marijuana in some form. Mother
asserts that the court’s findings regarding her housing are insufficient to support
the CHINS determination because she testified she had never been homeless.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 19 of 23 She argues that the court’s findings regarding her employment, financial
situation, supervision, parenting skills, demeanor, and compliance with services
are not supported by the evidence and are insufficient to support the CHINS
determination.
[31] With respect to Mother’s marijuana use, the record reveals that FCM Johnson
testified that Mother informed her that she smoked marijuana every other day
and that caseworker Yeskie testified that Mother told her that she would screen
positive for marijuana. GAL Huff testified that Mother admitted she tested
positive for marijuana. GAL Huff also indicated that it was important that a
parent ensure sobriety before he recommends placement of the child back into
the home and that this is especially true when a baby is involved. He testified
that he did not believe the Children would be safe with Mother at this point
“[b]ecause I think that the situation of the fact that [what I] call homelessness
and the fact of the intense use of marijuana . . . .” Transcript Volume III at 36.
FCM Fuyana testified that drug use by a parent is a safety concern, especially
for a baby. Mother testified that she used marijuana, and the guardian ad
litem’s counsel asked Mother, “And [J.J.] was in your care when you used?”
Id. at 80. Mother answered: “Yes.” Id. She also testified that she goes out and
meets people to obtain marijuana and leaves J.J. with her roommate.
[32] To the extent Mother challenges the court’s findings and conclusion regarding
her housing instability, the record reveals that Indianapolis Metropolitan Police
Officer Ivan Ivanov testified that he was dispatched to Motel Super 8 on May
27, 2016, and came into contact with Mother who was staying there and was a
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 20 of 23 victim of a robbery. Case manager Smith testified that she provided
transportation to Mother and picked her up “from a couple of motels and from
a house – apartment.” Transcript Volume II at 74. Brittany, a home based case
management service provider, testified that Mother told her that meeting at
Mother’s home was not possible, Mother said she did not have transportation,
and Mother could not meet her at her cousin’s home where she was because her
cousin did not have furniture yet and thereafter declined to meet with Brittany.
GAL Huff testified that he became concerned that Mother was no longer living
at the Beech Hollow address with J.J., attempted to contact Mother to see J.J.,
was unsuccessful in reaching Mother, went back to Beech Hollow on
September 15th, and did not see Mother at the Beech Hollow address. He
testified that he tried to make phone calls and determine Mother’s location but
was unable to make contact with her. When asked why he agreed with the
court’s order that Mother complete certain services, GAL Huff answered:
Because I had a concern about what I would consider the homelessness and the substance abuse regarding the children. That has been one issue because the thing is, I had not been able to get a hold of [Mother]. It seems like she’s been somewhat evasive regarding from the beginning of this case and that is a concern because my child – my children that I deal with, need stability. That is one of the main reasons.
Id. at 33. While Mother testified that she was living at the same Beech Hollow
address, GAL Huff testified that he was confident that Mother was not living at
the Beech Hollow address when he left that address on September 15th and
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 21 of 23 FCM Fuyana testified that she made three attempts to visit Mother at the Beech
Hollow address in September 2017.
[33] As for Mother’s employment and financial situation, Mother testified that she
did not have a job at the moment. Smith testified that Mother told her that she
was having issues paying for the motel and asked to borrow some money.
[34] With respect to her supervision and parenting skills, Smith, the home based
case manager, testified that there was “some lack in parenting” being able to
manage both children at the same time, that K.J. walked off a couple of times
in the parking lot because Mother struggles with the “logistics of getting both
kids to the car,” and that she had to ask Mother “maybe at least four times” to
“go grab [K.J.] and see where he’s at.” Transcript Volume II at 70-72.
[35] We note that Mother does not challenge the court’s findings relating to her
failure to comply with services. Rather, Mother asserts that it is not surprising
that she showed little willingness to work with service providers given the
history of her initial encounter “and the ongoing knowledge that any disclosure
she makes to [DCS] or its contractors may be used against her and in support of
removal of her children.” Appellant’s Brief at 38.
Conclusion
[36] Based upon the evidence and testimony presented at the fact-finding hearing
and in light of the unchallenged findings, we cannot say that the trial court’s
findings of fact, conclusions, and judgment are clearly erroneous. The evidence
supports the conclusion that the Children are CHINS.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 22 of 23 [37] For the foregoing reasons, we affirm the trial court’s conclusion that the
Children are CHINS.
[38] Affirmed.
Altice, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 23 of 23