In the Matter of: D.K.M. and A.M. (Minor Children) A.D.M. (Mother) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 9, 2018
• Docket: 18A-JC-672
• 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 Aug 09 2018, 9:32 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Roberta Renbarger Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana Abigail R. Recker Robert J. Henke Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of: August 9, 2018

D.K.M. and A.M. (Minor Court of Appeals Case No. 18A-JC-672 Children) Appeal from the Allen Superior Court A.D.M. (Mother), The Honorable Charles F. Pratt, Appellant-Respondent, Judge The Honorable Sherry A. Hartzler, v. Magistrate Trial Court Cause No. The Indiana Department of 02D08-1706-JC-465 Child Services, Appellee-Petitioner.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-672 | August 9, 2018 Page 1 of 9 Riley, Judge.

STATEMENT OF THE CASE [1] Appellant-Respondent, A.D.M. (Mother) appeals the trial court’s determination

that her minor child, A.M. (Child), is a Child in Need of Services (CHINS).

[2] We affirm.

ISSUE [3] Mother presents one issue on appeal, which we restate as: Whether the trial

court’s order, adjudicating Child as a CHINS, is clearly erroneous.

FACTS AND PROCEDURAL HISTORY [4] Around June 8, 2017, the Indiana Department of Child Services (DCS)

received a report that Child, who was then three-years-old, had “crawled out

the broken second story window and was on top of the porch.” (Transcript p.

10). The following day, Child got out on the roof again, where he was found by

law enforcement. At all times during these proceedings, Father was

incarcerated.

[5] On June 12, 2017, DCS Family Case Manager, Deborah McClintock (FCM

McClintock), conducted a family assessment. Mother informed her that Child

was “very hyperactive” and “almost impossible” to “supervise a hundred

percent of the time.” (Tr. p. 29). She also admitted that Child “had been up on

the roof unsupervised.” (Tr. p. 29). FCM McClintock observed the home to

have sustained water damage and was concerned about the disorganization of

Court of Appeals of Indiana | Memorandum Decision 18A-JC-672 | August 9, 2018 Page 2 of 9 the residence and the “really large number of cats present” but the home “did

meet minimum stand[ards] for cleanliness and it did have ample food and all

working utilities.” (Tr. p. 30). Mother refused to take a drug screen and stated

“very adamantly that she felt she would not benefit from” DCS’s services or

any home-based services. (Tr. p. 30). When FCM McClintock returned to the

home a couple of days later, Mother had fixed the broken window.

[6] On June 19, 2017, DCS filed its petition alleging Child to be a CHINS. 1 At the

end of June 2017, Family Case Manager Ashley Johnson (FCM Johnson) met

with Mother during a child and family team meeting to discuss services and to

schedule a home visit. At the end of the meeting, Mother submitted a drug

screen which returned positive for heroin metabolite and morphine. Mother

was “very alarmed” at the result. (Tr. p. 34). “She said she had no clue how

she could test positive for something such as heroin[.]” (Tr. p. 34). Mother was

screened seven days later and again tested positive. Because of the positive

screens, DCS removed the Child on July 19, 2017. DCS referred Mother for a

diagnostic assessment and a substance abuse assessment. Mother completed

the diagnostic assessment and she was recommended to participate in ongoing

psychiatric medication and pain management, but Mother declined any further

assistance for substance abuse.

1 Initially, the CHINS petition was filed for both A.M. and his older brother, D.K.M. However, the court did not adjudicate D.K.M as a CHINS as he was seventeen years old.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-672 | August 9, 2018 Page 3 of 9 [7] FCM Johnson continued to test Mother for another eight screens and “each one

has been positive for heroin and other substances[,]” such as fentanyl,

hydrocodone, suboxone, and oxycodone. (Tr. p. 35). Mother testified that she

has been using Percocet and hydrocodone for chronic pain as a result of

degenerative disc disease, as well as muscle relaxers and anti-inflammatories.

Mother explained that in May or June of 2017, she had visited a holistic healer

who provided her with a “supplement” based on herbs to help with pain

management and which she takes four to six times daily. (Tr. p. 14). She

clarified that she was unaware that the supplement contained heroin until she

tested positive during DCS’s screens. However, since becoming aware of the

heroin component, Mother has continued to use the supplement and although

she tried to stop “cold turkey,” she became ill and exhibited withdrawal

symptoms. (Tr. p. 16). Mother has been taking suboxone to get clean but also

takes heroin when she does not have suboxone available. She admitted that she

participated in a suboxone treatment program at Clean Slate in Fort Wayne,

Indiana, but has not signed a release for DCS to obtain information from the

program. DCS is unaware of Mother’s participation in services other than the

suboxone program.

[8] On December 7, 2017, the trial court conducted a fact-finding hearing. FCM

Johnson testified that she remained concerned about the lack of supervision of

the Child due to Mother’s heroin use. She stated that “the substance use can

impede on her ability to properly supervise [Child] especially with her

expressing that he is very active and motivated[.] . . . [Child] is very

Court of Appeals of Indiana | Memorandum Decision 18A-JC-672 | August 9, 2018 Page 4 of 9 aggressive. Like I’ve gone to a visit and he’s been aggressive, difficult to control

with words, telling him no, . . . He’s very vocal and needs a lot of redirection.”

(Tr. p. 44).

[9] On December 11, 2017, the trial court issued its order adjudicating Child as a

CHINS. On February 18, 2018, after a dispositional hearing, the trial court

entered its dispositional decree, ordering Mother to participate in services,

substance abuse counseling, homebased services, and participate in a

medication management service.

[10] Mother now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION [11] Mother argues that the trial court’s CHINS determination is not supported by

the evidence. When determining whether sufficient evidence exists in support

of a CHINS determination, we consider only the evidence most favorable to the

judgment and the reasonable inferences therefrom. In re S.D., 2 N.E.3d 1283,

1287 (Ind. 2014). This court will not reweigh the evidence or reassess the

credibility of the witnesses. Id. at 1286. When a juvenile court’s order contains

specific findings of fact and conclusions thereon, we engage in a two-tiered

review. In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014). First, we determine

whether the evidence supports the findings, and then, we determine whether the

findings support the judgment. Id. Findings are clearly erroneous when there

are no facts or inferences drawn therefrom that support them. Id. A judgment

Court of Appeals of Indiana | Memorandum Decision 18A-JC-672 | August 9, 2018 Page 5 of 9 is clearly erroneous if the findings do not support the juvenile court’s

conclusions or the conclusions do not support the resulting judgment. Id.

[12] CHINS proceedings are civil actions, and therefore, “the State must prove by a

preponderance of the evidence that a child is a CHINS as defined by the

juvenile code.” In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). On review, we

neither reweigh the evidence nor judge the credibility of the witnesses. Id. We

consider only the evidence that supports the juvenile court’s decision and

reasonable inferences drawn therefrom. Id. We reverse only upon a showing

that the decision of the juvenile court was clearly erroneous. Id.

[13] To meet its burden of establishing CHINS status, DCS must prove that the

child is under 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.

Ind. Code § 31-34-1-1. Although the acts or omissions of one or both parents

can cause a condition that creates the need for court intervention, the CHINS

Court of Appeals of Indiana | Memorandum Decision 18A-JC-672 | August 9, 2018 Page 6 of 9 designation focuses on the condition of the child rather than on an act or

omission of the parents. In re N.E., 919 N.E.2d at 105. “[T]he purpose of a

CHINS adjudication is to protect children, not punish parents.” N.L. v. Ind.

Dep’t of Child Servs, 919 N.E.2d 102, 106 (Ind. 2010).

[14] While not disputing the trial court’s facts in its Order, Mother claims that the

conditions which gave rise to the DCS investigation and involvement were fully

resolved prior to the fact-finding hearing. She fixed the broken window and

“she personally secured treatment in a suboxone program.” (Mother’s Br. p.

12). Accordingly, she denies that the coercive intervention of the court is

needed as she “firmly believes that she has always provided for her children

emotionally, physically, psychologically, and medically for the past twenty-two

years.” (Mother’s Br. p. 13). Mother claims that “although there may be issues

in her life, they are not issues that she requires assistance to address, but are

issues she has and can address herself.” (Mother’s Br. p. 13).

[15] While we agree with Mother that the initial reason of DCS’s involvement with

the family was very quickly remedied by fixing the window, the Child’s CHINS

determination was solely based on Mother’s drug use and inability to supply

him with the necessary supervision. Since DCS became involved with the

family and instigated drug screens, Mother tested positive for heroin eight

times, with the most recent drug screen of September 11, 2017 showing the

highest levels of all previous screens. Mother admitted to using heroin in lieu of

medically prescribed pain medication. She also conceded that she used this

supplement four to six times daily while caring for Child and continued to

Court of Appeals of Indiana | Memorandum Decision 18A-JC-672 | August 9, 2018 Page 7 of 9 ingest it after being made aware of the supplement’s heroin component. At

times, Mother not only tested positive for heroin but also for suboxone, which

she was supposed to use to get clean, and fentanyl. During these proceedings,

Mother not only adamantly refused DCS’s help but also “doesn’t think she

needs a substance abuse treatment.” (Tr. p. 9).

[16] Assessing the evidence as a whole, we note that “[p]arents who make positive

changes in their lives should be applauded, rather than being subjected to the

coercion of a CHINS finding.” Matter of E.K., 83 N.E.3d 1256, 1261 (Ind. Ct.

App. 2017). As such, a CHINS finding should consider the family’s condition

not just when the case was filed, but also when it is heard. In re S.D., 2 N.E.3d

1283, 1290 (Ind. 2014). Here, the record demonstrates that Mother did not

make even a modicum of effort to alleviate DCS’s concerns for the safety and

supervision of the Child. Rather, Mother’s drug screens were invariably

positive and reflected increasing levels of substance abuse. While we empathize

with Mother’s situation, and despite DCS’s urging and help, Mother never

enrolled in a pain management program but rather chose to self-medicate in an

unsafe manner. Accordingly, we agree with the trial court that the Child needs

supervision that he is unlikely to receive without coercive intervention by the

State.

CONCLUSION [17] Based on the foregoing, we hold that the trial court’s order, adjudicating Child

as a CHINS, is not clearly erroneous.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-672 | August 9, 2018 Page 8 of 9 [18] Affirmed.

[19] Vaidik, C. J. and Kirsch, J. concur

Court of Appeals of Indiana | Memorandum Decision 18A-JC-672 | August 9, 2018 Page 9 of 9