In Re the Matter of: Mad.R. and Mas.R. (Children in Need of Services) and D.C. (Custodian) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 18, 2018
• Docket: 91A04-1711-JC-2809
• 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 Jun 18 2018, 8:38 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 Benjamin J. Church Curtis T. Hill, Jr. Church Law Office Attorney General of Indiana Monticello, Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re the Matter of: June 18, 2018 Mad.R. and Mas.R. Court of Appeals Case No. (Children in Need of Services), 91A04-1711-JC-2809 and Appeal from the White Circuit Court D.C. (Custodian), The Honorable Robert Thacker, Appellant-Respondent, Judge

v. Trial Court Cause No. 91C01-1705-JC-21 91C01-1705-JC-22 The Indiana Department of Child Services, Appellee-Petitioner.

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 91A04-1711-JC-2809 | June 18, 2018 Page 1 of 11 Case Summary and Issue [1] D.C. appeals the juvenile court’s adjudication of Mad.R. and Ma.R.

(“Children”) as children in need of services (“CHINS”). D.C. raises two issues

for our review, which we consolidate and restate as a single issue: whether the

juvenile court’s CHINS determination is clearly erroneous. Concluding the

juvenile court’s CHINS determination is not clearly erroneous, we affirm.

Facts and Procedural History [2] Mad.R. and Ma.R. are twins born to N.R. (“Mother”) in November of 2015.1

Approximately six months after their birth, Mother placed her Children with

D.C. and her husband, C.C. D.C. and C.C. are neighbors with the Children’s

maternal grandmother.2 Although no guardianship was ever established, the

Children have been raised and cared for by D.C. and her husband for a majority

of their life.

[3] In March of 2017, C.C. was arrested for possession of marijuana, possession of

methamphetamine, and burglary. Shortly thereafter, the Indiana Department

of Child Services (“DCS”) received allegations of excessive consumption of

alcohol by D.C., drug use in the home, and unsanitary home conditions. DCS

1 The Children’s father is unknown. 2 D.C. and C.C.’s minor biological son, L.C., also lives in their home. The Indiana Department of Child Services also filed a petition alleging him to be a CHINS; however, the juvenile court determined he was not a CHINS.

Court of Appeals of Indiana | Memorandum Decision 91A04-1711-JC-2809 | June 18, 2018 Page 2 of 11 opened an investigation and met with D.C. and C.C. At the meeting on March

10, 2017, D.C. admitted to using marijuana and she and her husband submitted

to drug screens. D.C. tested positive for marijuana and C.C. tested positive for

marijuana and methamphetamine. Their positive drug screens resulted in the

DCS drug screening the Children. Ma.R. tested positive for methamphetamine

and Mad.R. tested positive for methamphetamine and marijuana.

[4] After receiving the results of their drug screens, D.C. did not permit C.C. to live

with her and the Children and moved into a different home. Additionally, DCS

created a safety plan in which maternal grandmother was to move in with D.C.

to help care for Children. On April 28, 2017, maternal grandmother informed

the DCS that due to her poor health, she was unable to help care for the

Children. That same day, the DCS again drug tested the Children. Mad.R.’s

drug screen showed a decreased exposure to methamphetamine and marijuana;

however, Ma.R.’s showed an increase in exposure to methamphetamine and a

positive test result for marijuana. The DCS then removed the Children from

D.C.’s care and placed them in foster care.

[5] On May 2, 2017, the DCS filed a verified petition alleging the Children to be

CHINS. The juvenile court held a fact-finding hearing on the DCS’ petition on

June 19, 2017. At the conclusion of the hearing, the juvenile court stated “I

believe that the [Children] are Children in Need of Services, and I don’t think

[D.C.] is an appropriate custodian for those children . . . .” Transcript, Volume

2 at 143. Two days later, the juvenile court issued its order on the fact-finding,

adjudicating the Children as CHINS. The order provides, in relevant part,

Court of Appeals of Indiana | Memorandum Decision 91A04-1711-JC-2809 | June 18, 2018 Page 3 of 11 In support for this conclusion of law, the following findings of fact are found:

***

3. [Mother] placed the child, as well as the child’s twin, with [C.C.] and [D.C.] soon after they were born, and the child has lived with them since that time. A guardianship was never established for the child.

4. In March 2017, DCS received reports of suspected child neglect involving the children alleging that [C.C.], custodian, was arrested for drug possession, possession of paraphernalia, and burglary, that [D.C.], custodian, was consuming large amounts of alcohol and driving with the children while under the influence of alcohol, and that drugs were being used in the home.

5. After DCS received the initial report in March 2017, [D.C.] tested positive for marijuana, [C.C.] tested positive for marijuana and methamphetamine, the child tested positive for methamphetamine and marijuana, and [C.C.] was re-arrested and is currently in jail on several pending criminal charges, including charges for theft relating to taking proceeds from the sale of cattle not belonging to him in amounts exceeding $14,000.00 and possession of methamphetamine.

6. [D.C.] has a long history of alcohol and marijuana use and has consumed alcohol and used marijuana while supervising the child. A few years ago, she left a job she had been at for several years and has not had stable employment since that time; a previous employer testified that she sometimes smelled alcohol on [D.C.’s] breath while [D.C.] was at work. [D.C.] currently works part time at a liquor store.

7. [Mother] is unable to provide the child with its basic needs, care, and supervision and has a history of instability and methamphetamine use.

Court of Appeals of Indiana | Memorandum Decision 91A04-1711-JC-2809 | June 18, 2018 Page 4 of 11 8. The child has been exposed to the effects of illegal drug use.

9. [D.C.’s] alcohol and illegal drug use and [C.C.’s] illegal drug use, criminal matters, and incarceration interfere with their ability to provide the child with its basic needs, care, and supervision.

10. [C.C.] and [D.C.] have demonstrated irrational thinking and lack of insight to such an extent that their household is not functioning at a level high enough to provide a safe environment for the child.

11. The child’s physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the parents and custodians to supply the child with necessary supervision.

12. The child needs care, treatment, or rehabilitation that it isn’t receiving and is unlikely to be provided or accepted without the Court’s coercive intervention.

Appendix of Appellant, Volume 2 at 30-31.3 D.C. now appeals. Additional

facts will be added as necessary.

Discussion and Decision

3 The juvenile court’s order provided in the appendix only references Mad.R. and not Ma.R. See App. of Appellant at 30-31. If there is a separate order adjudicating Ma.R. a CHINS, it has not been provided in the appendix. Nonetheless, the transcript clearly demonstrates the juvenile court found both Mad.R. and Ma.R. to be CHINS. The juvenile court concluded the fact-finding hearing stating, “Judgment of Child in Need of Services on both of the [Children], and denying the petition on [L.C.].” Tr., Vol. 2 at 145.

Court of Appeals of Indiana | Memorandum Decision 91A04-1711-JC-2809 | June 18, 2018 Page 5 of 11 I. Standard of Review [6] This court engages in a two-tiered standard of review when reviewing a juvenile

court’s findings of fact and conclusions of law in a CHINS case. Matter of K.S.,

78 N.E.3d 740, 744 (Ind. Ct. App. 2017).

First, we determine whether the evidence supports the findings, and then, we determine whether the findings support the judgment. Findings are clearly erroneous when there are no facts or inferences to be drawn therefrom that support them. A judgment is clearly erroneous if the findings do not support the juvenile court’s conclusions or the conclusions do not support the resulting judgment.

Id. (internal citations omitted). Moreover, when reviewing a juvenile court’s

findings of fact, we do not reweigh evidence or judge the credibility of

witnesses. In re D.F., 83 N.E.3d 789, 796 (Ind. Ct. App. 2017). Instead, we

consider only the evidence supporting the judgment and the reasonable

inferences drawn from that evidence. Id.

II. CHINS Adjudication [7] D.C.’s argument is two-fold. First, D.C. challenges the juvenile court’s findings

of fact. D.C. contests four of the juvenile court’s specific findings and argues

they are unsupported by the evidence. Second, D.C. alleges the findings of fact

do not support the juvenile court’s judgment.

A. The Juvenile Court’s Findings of Fact [8] D.C. challenges findings number 9 through 12. Those findings provide,

Court of Appeals of Indiana | Memorandum Decision 91A04-1711-JC-2809 | June 18, 2018 Page 6 of 11 9. [D.C.’s] alcohol and illegal drug use and [C.C.’s] illegal drug use, criminal matters, and incarceration interfere with their ability to provide the child with its basic needs, care, and supervision.

10. [C.C.] and [D.C.] have demonstrated irrational thinking and lack of insight to such an extent that their household is not functioning at a level high enough to provide a safe environment for the child.

11. The child’s physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the parents and custodians to supply the child with necessary supervision.

12. The child needs care, treatment, or rehabilitation that it isn’t receiving and is unlikely to be provided or accepted without the Court’s coercive intervention.

App. of Appellant, Vol. 2 at 31.4

[9] In regard to finding number 9, D.C. argues there is no evidence that her

“alcohol or marijuana use had any tangible, harmful effects on [the Children].”

Brief of Appellant at 10. D.C. also points to the fact she passed several alcohol

and marijuana drug screens prior to the fact-finding hearing.

[10] The evidence presented at the fact-finding hearing provides ample support for

finding number 9. By her own admission and confirmed by her drug screens,

4 Numbers 11 and 12 are not findings of fact; they represent the juvenile court’s judgment that Children are CHINS and we address the juvenile court’s judgment below. Further, finding number 10, even if we were able to determine what constitutes “irrational thinking,” is not relevant to our ultimate conclusion. App. of Appellant, Vol. 2 at 31. The facts pertinent to the removal of the Children from the home and their CHINS adjudication relate to D.C. and C.C.’s use of alcohol and illegal drugs and exposure of the Children to those drugs. Thus, we confine our review to finding number 9.

Court of Appeals of Indiana | Memorandum Decision 91A04-1711-JC-2809 | June 18, 2018 Page 7 of 11 D.C. uses marijuana. Her husband, C.C., uses marijuana and

methamphetamine and is facing criminal charges for his use of both substances.

Moreover, there was concerning evidence about the amount of alcohol D.C.

consumed. D.C. admitted to using alcohol while the Children were under her

supervision and the Children’s maternal grandmother testified she often saw

D.C. drinking alcohol and on at least one occasion witnessed D.C. drive after

drinking alcohol. A former employer of D.C. who is also her relative testified

she has smelled alcohol on D.C.’s breath at work. And D.C.’s mother-in-law

testified she “thinks she drinks too much” and “needs to cut back on drinking.”

Tr., Vol. 2 at 52. D.C.’s mother-in-law also stated she has witnessed D.C. drive

after drinking alcohol with the Children in the vehicle.

[11] Most importantly, the Children have been exposed to D.C. and C.C.’s drug

abuse with both Children testing positive for marijuana and methamphetamine.

The evidence presented at the hearing provides a link between D.C. and C.C.’s

illegal drug use and harmful and potentially harmful effects upon the Children,

such as drinking and driving with them in the vehicle, supervising them while

consuming alcohol, and exposing them to the illegal drugs of marijuana and

methamphetamine. See In re J.L., 919 N.E.2d 561, 564 (Ind. Ct. App. 2009)

(affirming a CHINS determination where the mother knowingly exposed her

thirteen-month-old child to an environment of illegal drug use). Accordingly,

the juvenile court’s finding that D.C. and C.C.’s drug and alcohol use interfered

with their ability to provide for the Children’s basic needs is not clearly

erroneous.

Court of Appeals of Indiana | Memorandum Decision 91A04-1711-JC-2809 | June 18, 2018 Page 8 of 11 B. The Juvenile Court’s Judgment [12] D.C. also alleges the juvenile court’s findings do not support the judgment the

Children are CHINS. Specifically, D.C. argues the Children were not

endangered at the time of the fact-finding hearing because she remedied the

concerns about her drug use; therefore, coercive intervention of the court was

unnecessary.

[13] Pursuant to Indiana Code section 31-34-1-1, a child is a child in need of services

if, before the child becomes eighteen 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.

[14] Thus, the statute requires the DCS to prove three basic elements: (1) the

parent’s actions or inactions have seriously endangered the children, (2) the

children’s needs are unmet, and (3) the children’s needs are unlikely to be met

without State intervention. In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014).

Because a CHINS proceeding is a civil proceeding, the DCS must prove the

children are CHINS by a preponderance of the evidence. In re K.D., 962

N.E.2d 1249, 1253 (Ind. 2012).

Court of Appeals of Indiana | Memorandum Decision 91A04-1711-JC-2809 | June 18, 2018 Page 9 of 11 [15] D.C.’s main argument with respect to the juvenile court’s judgment is that

coercive judicial intervention is unnecessary because she remedied the

conditions by passing numerous alcohol and drug tests in the months prior to

the fact-finding hearing. D.C. cites to In re R.S., 987 N.E.2d 155, 159 (Ind. Ct.

App. 2013), where we stated a “CHINS adjudication may not be based solely

on conditions that no longer exist.”

[16] While it may be that D.C. passed her drug and alcohol screens, we conclude the

juvenile court’s judgment is supported by the findings and State intervention is

necessary to protect the Children. After the Children were born, their biological

mother left them with D.C., who never established a guardianship or possessed

legal custody of the Children. As far as the record demonstrates, Mother still

possesses legal custody of the Children although she is unable or unwilling to

care for them.5 Moreover, Mother left the Children in an environment where

they were exposed to alcohol abuse and illegal drugs and subsequently tested

positive for those same drugs. The juvenile court’s judgment, therefore, is not

clearly erroneous.

5 According to the DCS family case manager, Holly Bishop, Mother has expressed her desire that the Children not be returned to D.C. and C.C.’s care and custody. See Tr., Vol. 2 at 99.

Court of Appeals of Indiana | Memorandum Decision 91A04-1711-JC-2809 | June 18, 2018 Page 10 of 11 Conclusion [17] The judgment of the juvenile court is not clearly erroneous. Accordingly, we

affirm the Children’s adjudication as CHINS.

[18] Affirmed.

Najam, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 91A04-1711-JC-2809 | June 18, 2018 Page 11 of 11