In the Matter of: D.S. and N.H. (Minor Children) Children in Need of Services and A.S. (Mother) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 31, 2016
• Docket: 49A05-1507-JC-950
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 31 2016, 8:23 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Danielle L. Gregory Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Robert J. Henke Abigail R. Recker Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of: March 31, 2016 D.S. and N.H. (Minor Children) Court of Appeals Case No. 49A05-1507-JC-950 Children in Need of Services Appeal from the Marion Superior and Court A.S. (Mother), The Honorable Marilyn Moores, Appellant-Respondent, Judge

v. The Honorable Jennifer Hubartt, Magistrate

The Indiana Department of Trial Court Cause Nos. 49D09-1503-JC-948 Child Services, 49D09-1503-JC-949 Appellee-Petitioner.

Robb, Judge. Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016 Page 1 of 14 Case Summary and Issues [1] A.S. (“Mother”) appeals the juvenile court’s adjudication of her two children,

D.X.S. and N.H. (“Children”), as children in need of services (“CHINS”).

Mother raises three issues on appeal, which we consolidate and restate as (1)

whether the juvenile court’s CHINS determination is clearly erroneous, and (2)

whether the juvenile court’s Parental Participation Order is clearly erroneous.

Concluding neither the CHINS determination nor the Parental Participation

Order is clearly erroneous, we affirm.

Facts and Procedural History [2] Born in September 2011, D.X.S. is the child of D.S. and Mother. Following

D.X.S.’s birth, Mother was awarded full custody of D.X.S. and D.S. was

awarded parenting time. Mother and D.X.S. lived with D.X.S.’s maternal

grandmother, T.S., and maternal great-grandmother. In August 2013, Mother

was convicted of possession of a controlled substance and public intoxication,

and Mother was sentenced to probation. Four months later, Mother was

convicted of possession of a controlled substance and operating a vehicle while

intoxicated; again, Mother was sentenced to probation. In August 2014,

Mother gave birth to N.H. Despite not being N.H.’s biological father, C.H.

Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016 Page 2 of 14 signed N.H.’s birth certificate.1 Mother and the Children continued to live with

T.S.

[3] In March 2015, the Indiana Department of Child Services (“DCS”) received a

report alleging Mother abused drugs and often left the Children unattended.

Thereafter, Deanna Watson, a Family Case Manager with DCS, began

investigating the report and interviewed T.S. and Mother. T.S. stated Mother

worked late hours as a waitress and exotic dancer. When Mother went to

work, Mother relied on T.S. and the Children’s maternal great-grandparents to

babysit the Children. At times, Mother would leave the house for several days

without returning, or contacting T.S., to check on the Children’s well-being.

When Mother did return home, Mother often slept and did not spend much

time with the Children. T.S. suspected Mother had a problem with drugs and

alcohol. Mother admitted to using cocaine three times per week and leaving

the Children under T.S.’ supervision. Mother further stated the Children

caused her significant stress and she needed assistance and services. Mother

then submitted to a drug screen and tested positive for cocaine and opiates.

Concerned for the Children’s well-being, DCS immediately removed the

Children from Mother’s custody and placed the Children with T.S.

[4] On March 20, 2015, DCS filed a petition alleging the Children were CHINS.

On the same day, the juvenile court held a joint detention and initial hearing.

1 Neither D.S. nor C.H. appeal the juvenile court’s order adjudicating the Children as CHINS.

Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016 Page 3 of 14 At the hearing, the juvenile court continued the Children’s removal from

Mother’s custody and placement with T.S., appointed a guardian ad litem, and

ordered Mother to vacate T.S.’s home until Mother could provide five negative

drug screens.2 Per DCS’ recommendation, Mother began meeting with a home-

based case manager at the beginning of April 2015. On April 20, 2015, the

juvenile court held a pre-trial hearing. Mother did not appear because she was

in jail for a probation violation. On May 4, Mother appeared for a pre-trial

hearing, and the juvenile court authorized Mother to reside in T.S.’s home with

the Children, contingent upon Mother continuing to provide negative drug

screens.

[5] At the fact-finding hearing on June 22, 2015, Mother’s probation officer,

Michael Feldman, testified the terms of Mother’s probation required Mother to

participate in drug testing and a substance abuse assessment. Mother

completed the substance abuse assessment and was not ordered to seek

treatment. After Mother admitted to using cocaine, however, Feldman ordered

Mother to seek substance abuse treatment before her probationary term ended.

To Feldman’s knowledge, Mother was still on probation at the time of the fact-

finding hearing and had not yet sought treatment. Feldman also testified he

had recently filed a petition alleging Mother violated the terms of her probation,

but the record does not describe the allegation(s) with any specificity. Also at

2 On March 30, 2015, the juvenile court granted DCS’ motion to amend its petition to include “A.J.” as the alleged father to N.H. A.J. never appeared at any of the pre-trial hearings or the fact-finding hearing, and the juvenile court issued a default order as to A.J.

Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016 Page 4 of 14 the time of the fact-finding hearing, the trial court in Mother’s criminal case had

not made a final ruling on Mother’s alleged probation violation. Despite

Mother having until the end of her probationary term to seek substance abuse

treatment, Feldman opined he was concerned Mother would not complete the

required substance abuse treatment.

[6] Mother’s home-based case manager, Candace Balzano, testified she and

Mother attempted to meet weekly, but Mother did not consistently show up to

her appointments. Balzano opined Mother should receive additional services to

assist in parenting the Children. T.S. testified Mother did not pay for the

Children’s clothing or food. In addition, T.S. stated she kicked Mother out of

the home because Mother came home intoxicated twice. T.S. also testified

Mother’s absence from the Children’s lives had an adverse effect on the

Children. Specifically, T.S. observed D.X.S. missed Mother a great deal and

often asked where Mother was.

[7] On July 1, 2015, the juvenile court issued an order adjudicating the Children as

CHINS. The juvenile court’s order included the following relevant findings:

7. On or about March 18, 2015, [Mother] admitted to DCS FCM Deanna Watson that she was currently using cocaine approximately three times per week and had used approximately three days prior to that date.

8. On or about March 18, 2015, [Mother] admitted to FCM Watson that she was stressed out with the children and needed assistance and services.

9. On or about March 18, 2015, [Mother] admitted to FCM Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016 Page 5 of 14 Watson that she had just left an abusive relationship with [C.H.]

10. On or about March 18, 2015[,] and at the present time, [Mother] is on adult probation for drug and alcohol related convictions.

11. [Mother] has been Court ordered through her criminal convictions to participate in a Substance Abuse Evaluation, Substance Abuse Treatment, and Random Drug Screens.

12. Despite being Court ordered to complete the substance abuse services and drug screens, [Mother] has not yet completed the services.

13. [Mother]’s Probation Officer Michael Feldman has filed a Violation of Probation with the criminal court concerning [Mother]’s lack of progress in services. *** 15. [Mother] has acknowledged the need for services to Ms. Balzano, stating to Ms. Balzano that she is interested in obtaining a GED, changing her employment from a waitress and exotic dancer, securing housing, saving money, and achieving sobriety.

16. [Mother] has been inconsistent in her work with Ms. Balzano and on the achievement of her treatment goals.

17. [Mother] has not successfully achieved her treatment goals with Ms. Balzano as of the date of this fact finding hearing.

18. The children have been placed in relative care with maternal grandmother, [T.S.] since approximately [M]arch 20, 2015.

19. [Mother] has attempted to see the children in the home of [T.S.] when [T.S.] perceived her daughter to be under the influence of drugs and/or alcohol.

20. [Mother] has told [T.S.] that she wants to get sober, but her

Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016 Page 6 of 14 interest in sobriety is not consistent, therefore she has not been successful. *** 24. [D.X.S.] has never lived with his father, [D.S.], but merely visited [D.S.] and his family.

25. [D.S.] is unemployed and has no independent means to provide necessities, including food, clothing, and shelter, for himself and his child. Additionally, [D.S.] lives in the home of his mother . . . and has no independent means to maintain his own home; [D.S.] has no driver’s license nor independent transportation . . . .

26. [Mother] has admitted to substance abuse which has resulted in criminal convictions, probation, and which compromises her ability to provide care, necessities, and supervision for her young children.

27. [Mother] has not demonstrated that she has resolved her substance abuse issues and that she can provide care, necessities, and supervision for her children. [Mother] has not consistently participated in casemanagement [sic] services, a probation violation has been filed regarding her substance abuse services, and no evidence such as drug screen results were presented to this court regarding her current sobriety.

28. Neither [C.H.] nor [D.S.] are able or willing to independently provide care, necessities, and supervision for their children.

Appellant’s Appendix at 104-05.

[8] On July 18, the juvenile court issued its Parental Participation Order, ordering

Mother to engage in a home-based therapy program and follow all

recommendations, to participate in a substance abuse assessment and

Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016 Page 7 of 14 successfully complete all treatment recommendations, and to submit to random

drug and alcohol screens. Mother now appeals the juvenile court’s order

adjudicating the Children as CHINS and the juvenile court’s Parental

Participation Order. Additional facts will be added as necessary.

Discussion and Decision I. Standard of Review [9] When reviewing a juvenile court’s CHINS determination, we neither reweigh

the evidence nor reassess witness credibility. In re K.D., 962 N.E.2d 1249, 1253

(Ind. 2012). We consider only the evidence that supports the juvenile court’s

decision and reasonable inferences drawn therefrom. Id.

[10] Where, as here, the juvenile court enters findings of fact and conclusions sua

sponte, we apply a two-tiered standard of review to the issues covered by the

findings: (1) we determine whether the evidence supports the findings of fact,

and (2) whether the findings support the judgment. In re S.D., 2 N.E.3d 1283,

1287 (Ind. 2014). “[W]e review the 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. (citation and

internal quotation marks omitted).” A finding of fact is clearly erroneous if the

record lacks evidence, or reasonable inferences from the evidence, to support it.

In re Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App. 2009), trans. denied.

The judgment is clearly erroneous if we are left with a “definite and firm

conviction that a mistake has been made.” In re S.L., 997 N.E.2d 1114, 1123 Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016 Page 8 of 14 (Ind. Ct. App. 2013). We will reverse only upon a showing that the court’s

decision was clearly erroneous. In re K.D., 962 N.E.2d at 1253.

II. CHINS Determination [11] Mother contends the juvenile court’s order adjudicating the Children as CHINS

is clearly erroneous. Specifically, Mother argues the evidence does not support

six of the juvenile court’s factual findings and the unchallenged findings of fact

do not support the juvenile court’s judgment. The juvenile court adjudicated

the Children as CHINS under Indiana Code section 31-34-1-1, which 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.

In other words, the statute requires State to prove three basic elements: (1) the

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

needs are unmet, and (3) the child’s needs are unlikely to be met without State

intervention. In re S.D., 2 N.E.3d at 1287. “That final element guards against

Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016 Page 9 of 14 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.” Id. (emphasis in

original) (quoting Lake Cnty. Div. of Family & Children Servs. v. Charlton, 631

N.E.2d 526, 528 (Ind. Ct. App. 1994)). Because a CHINS proceeding is a civil

proceeding, the State must prove the child is a CHINS by a preponderance of

the evidence. In re K.D., 962 N.E.2d at 1253.

[12] Mother first argues the juvenile court erred when it found certain facts that,

according to Mother, are not supported by the record. Specifically, Mother

challenges Factual Findings 13 and 24-28. We interpret Mother’s challenges to

Factual Findings 24-28 as merely requests for this court to reweigh the

evidence, which we will not do. 3 See id. As to Factual Finding 13, Mother

concedes the evidence supports a finding that Feldman filed a petition alleging

Mother violated probation, but Mother correctly argues there is nothing in the

record to indicate Feldman filed the petition because of “[Mother’s]’s lack of

progress in services.” Appellant’s App. at 105. For purposes of this appeal, we

proceed under the assumption that the latter portion of Factual Finding 13 is

not supported by the evidence. We note, however, the erroneous portion of

Factual Finding 13 does not render the juvenile court’s CHINS determination

3 Mother also argues Factual Finding 27 indicates the juvenile court shifted the burden of proof to Mother. We disagree. At best, Factual Finding 27 merely indicates Mother had the burden of going forward with evidence after DCS met its burden.

Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016 Page 10 of 14 clearly erroneous because, as discussed below, there is sufficient evidence

elsewhere to support the juvenile court’s judgment.

[13] Second, Mother contends there is no evidence that Mother’s actions or

inactions seriously endangered the Children. We disagree. The juvenile court’s

findings indicate Mother, while on probation for drug and alcohol related

offenses, used cocaine approximately three times per week. Moreover, the

record indicates Mother did not pay for the Children’s food or clothing, Mother

left the Children with T.S. for days at a time without checking on the Children’s

well-being, Mother returned to the home intoxicated on two separate occasions,

and Mother tested positive for cocaine and opiates. The juvenile court’s

conclusion that Mother’s actions and inactions seriously endangered the

Children is not clearly erroneous.

[14] Finally, Mother contends there is no evidence that coercive intervention of the

court is necessary. As noted above, Mother tested positive for cocaine and

opiates despite being on probation for convictions related to substance abuse. In

addition, Mother was inconsistent in meeting with Balzano to discuss working

toward securing housing, saving money, changing employment, and achieving

sobriety. Moreover, Balzano opined court intervention was necessary, T.S.

opined Mother could not achieve sobriety on her own, and even Mother

admitted to Watson she needed services. The juvenile court’s conclusion that

coercive intervention of the court is necessary is not clearly erroneous.

Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016 Page 11 of 14 III. Parental Participation Order [15] Mother also argues there was insufficient evidence to support the juvenile

court’s Parental Participation Order requiring Mother to participate in home-

based therapy, to participate in a substance abuse assessment and successfully

complete all treatment recommendations, and to submit to random drug and

alcohol screens. Indiana Code section 31-34-20-3 provides,

If the juvenile court determines that a parent, guardian, or custodian should participate in a program of care, treatment, or rehabilitation for the child, the court may order the parent, guardian, or custodian to do the following:

(1) Obtain assistance in fulfilling the obligations as a parent, guardian, or custodian.

(2) Provide specified care, treatment, or supervision for the child.

(3) Work with a person providing care, treatment, or rehabilitation for the child.

(4) Participate in a program operated by or through the department of correction.

[16] In support of her argument, Mother relies on our decision in In re A.C., 905

N.E.2d 456 (Ind. Ct. App. 2009). There, the juvenile court adjudicated A.C. a

CHINS and ordered the mother, in part, to submit to random drug testing and

to participate in a substance abuse assessment and successfully complete all

treatment recommendations. Because neither the record nor the juvenile

court’s findings referenced any allegations of the mother’s substance abuse, we

Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016 Page 12 of 14 vacated those portions of the parental participation decree, reasoning,

“Although the juvenile court has broad discretion in determining what

programs and services in which a parent is required to participate, the

requirements must relate to some behavior or circumstance that was revealed

by the evidence.” Id. at 464.

[17] Similar to In re A.C., the juvenile court ordered Mother to participate in a

substance abuse assessment, successfully complete all treatment

recommendations, and submit to random drug and alcohol screens. Unlike In

re A.C., however, the record and the juvenile court’s findings indicate Mother

has a substance abuse problem. Specifically, Mother has been convicted of

possession of a controlled substance on two separate occasions, public

intoxication, and operating a vehicle while intoxicated; Mother admitted to

using cocaine while on probation and thereafter tested positive for cocaine and

opiates; and T.S. kicked Mother out of the house because she arrived home

intoxicated on two separate occasions. We therefore conclude the juvenile

court’s Parental Participation Order relates to Mother’s behaviors and is not

clearly erroneous.

Conclusion [18] Concluding the juvenile court’s CHINS determination and Parental

Participation Order are not clearly erroneous, we affirm.

[19] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016 Page 13 of 14 Barnes, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016 Page 14 of 14