MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 15 2017, 7:33 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven Knecht Curtis T. Hill, Jr. Vonderheide and Knecht, P.C. Attorney General of Indiana Lafayette, Indiana Robert J. Henke David E. Corey Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of: March 15, 2017 K.M. and D.M., (Minor Court of Appeals Case No. 79A02-1609-JC-2260 Children) Appeal from the Tippecanoe Children in Need of Services and Superior Court L.H. (Mother), The Honorable Faith A. Graham, Appellant-Respondent, Judge The Honorable Tricia L. v. Thompson, Magistrate Trial Court Cause No. The Indiana Department of 79D03-1605-JC-120 Child Services, 79D03-1605-JC-122 Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-JC-2260 | March 15, 2017 Page 1 of 7 Bailey, Judge.
Case Summary [1] L.H. (“Mother”) appeals the trial court’s order, which adjudicated D.M. and
K.M. (“Children”) as Children in Need of Services (“CHINS”).
[2] We affirm.
Issue [3] Mother raises a single issue for our review, whether there was sufficient
evidence to sustain the trial court’s finding that Children were CHINS.
Facts and Procedural History [4] K.M was born to Mother and her ex-husband (“Father”) in 2004.1 D.M. was
born in 2007.
[5] Mother had voluntarily sought drug treatment services in December 2015. On
May 3, 2016, Mother kept D.M. home from school. At some point, Children’s
maternal grandmother (“Grandmother”) arrived at the home, which Childrens’
maternal grandparents had leased to Mother. Grandmother did not believe
Mother’s claim that D.M. was sick, but rather believed that Mother had
1 During the proceedings, Father was incarcerated in the Department of Correction with an earliest possible release date in 2019. Father does not appeal the CHINS adjudication, but remains a party of record.
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-JC-2260 | March 15, 2017 Page 2 of 7 experienced a drug use relapse and that the relapse was the reason Mother kept
D.M. at home. The argument between Mother and Grandmother escalated
into a conflict about money and Mother’s rent payments.
[6] A physical altercation ensued, because of which both Mother and Grandmother
were injured. D.M. was home at the time, but was in a separate room and was
unaware of the fight until police arrived. Police responded to the fight, but left
without making an arrest. However, on the same day, the Tippecanoe County
Department of Child Services (“DCS”) received a report that Mother was not
properly supervising Children, that Mother was abusing prescription
medication, and that conditions in the home were improper.
[7] On May 6, 2016, Grandmother filed an action to evict Mother from the home
for non-payment of rent. An order of eviction was entered on May 16, 2016,
and Mother was ordered to leave the premises by May 31, 2016 at noon.
[8] On May 7, 2016, DCS Caseworker Joseph Tonsing-Carter (“Tonsing-Carter”)
made contact with Mother. Tonsing-Carter visited the home and concluded
that the supervision issue was a minor one, and that the home met minimum
standards. Mother denied having used drugs since her December 2015
treatment, but agreed to a drug screen.
[9] On May 18, 2016, DCS obtained test results showing that Mother had tested
positive for amphetamine and methamphetamine. DCS removed Children
from Mother’s care, and placed Children with their maternal grandparents
(“Grandparents”). Children were also tested for exposure to drugs, and test
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-JC-2260 | March 15, 2017 Page 3 of 7 results would ultimately indicate that D.M. had been exposed to
methamphetamine.
[10] On May 20, 2016, DCS filed a verified petition alleging Children to be CHINS.
[11] On July 14, 2016, an evidentiary hearing was conducted on the allegations in
the CHINS petition. On July 29, 2016, the trial court found Children to be
CHINS.
[12] On August 11, 2016, a disposition hearing was conducted. On August 22,
2016, the trial court entered its disposition order, under which Mother was
ordered to participate in DCS-recommended services to continue to maintain
employment and a residence suitable for children. Children’s placement
remained with Grandparents.
[13] This appeal ensued.
Discussion and Decision [14] Mother contends on appeal that there was insufficient evidence to support the
trial court’s adjudication of Children as CHINS. The Indiana Supreme Court
has set forth the standard of review in such cases:
In reviewing a trial court’s determination that a child is in need of services, “[w]e neither reweigh the evidence nor judge the credibility of the witnesses.” In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012) (citing Egly v. Blackford Cty. Dept. of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). Instead, “[w]e consider only the
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-JC-2260 | March 15, 2017 Page 4 of 7 evidence that supports the trial court’s decision and reasonable inferences drawn therefrom.” Id.
Here, the trial court entered abbreviated findings and conclusions sua sponte. (Unlike CHINS dispositional decrees, see Ind.Code § 31-34-19-10 (2008), no statute expressly requires formal findings in a CHINS fact-finding order; nor did either party request them under Indiana Trial Rule 52(A).) As to the issues covered by the findings, we apply the two-tiered standard of whether the evidence supports the findings, and whether the findings support the judgment. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). But we 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. (internal quotation marks omitted).
In re S.D., 2 N.E.3d 1283, 1286-87 (Ind. 2014).
[15] The trial court adjudicated 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
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-JC-2260 | March 15, 2017 Page 5 of 7 (B) is unlikely to be provided or accepted without the coercive intervention of the court.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 15 2017, 7:33 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven Knecht Curtis T. Hill, Jr. Vonderheide and Knecht, P.C. Attorney General of Indiana Lafayette, Indiana Robert J. Henke David E. Corey Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of: March 15, 2017 K.M. and D.M., (Minor Court of Appeals Case No. 79A02-1609-JC-2260 Children) Appeal from the Tippecanoe Children in Need of Services and Superior Court L.H. (Mother), The Honorable Faith A. Graham, Appellant-Respondent, Judge The Honorable Tricia L. v. Thompson, Magistrate Trial Court Cause No. The Indiana Department of 79D03-1605-JC-120 Child Services, 79D03-1605-JC-122 Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-JC-2260 | March 15, 2017 Page 1 of 7 Bailey, Judge.
Case Summary [1] L.H. (“Mother”) appeals the trial court’s order, which adjudicated D.M. and
K.M. (“Children”) as Children in Need of Services (“CHINS”).
[2] We affirm.
Issue [3] Mother raises a single issue for our review, whether there was sufficient
evidence to sustain the trial court’s finding that Children were CHINS.
Facts and Procedural History [4] K.M was born to Mother and her ex-husband (“Father”) in 2004.1 D.M. was
born in 2007.
[5] Mother had voluntarily sought drug treatment services in December 2015. On
May 3, 2016, Mother kept D.M. home from school. At some point, Children’s
maternal grandmother (“Grandmother”) arrived at the home, which Childrens’
maternal grandparents had leased to Mother. Grandmother did not believe
Mother’s claim that D.M. was sick, but rather believed that Mother had
1 During the proceedings, Father was incarcerated in the Department of Correction with an earliest possible release date in 2019. Father does not appeal the CHINS adjudication, but remains a party of record.
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-JC-2260 | March 15, 2017 Page 2 of 7 experienced a drug use relapse and that the relapse was the reason Mother kept
D.M. at home. The argument between Mother and Grandmother escalated
into a conflict about money and Mother’s rent payments.
[6] A physical altercation ensued, because of which both Mother and Grandmother
were injured. D.M. was home at the time, but was in a separate room and was
unaware of the fight until police arrived. Police responded to the fight, but left
without making an arrest. However, on the same day, the Tippecanoe County
Department of Child Services (“DCS”) received a report that Mother was not
properly supervising Children, that Mother was abusing prescription
medication, and that conditions in the home were improper.
[7] On May 6, 2016, Grandmother filed an action to evict Mother from the home
for non-payment of rent. An order of eviction was entered on May 16, 2016,
and Mother was ordered to leave the premises by May 31, 2016 at noon.
[8] On May 7, 2016, DCS Caseworker Joseph Tonsing-Carter (“Tonsing-Carter”)
made contact with Mother. Tonsing-Carter visited the home and concluded
that the supervision issue was a minor one, and that the home met minimum
standards. Mother denied having used drugs since her December 2015
treatment, but agreed to a drug screen.
[9] On May 18, 2016, DCS obtained test results showing that Mother had tested
positive for amphetamine and methamphetamine. DCS removed Children
from Mother’s care, and placed Children with their maternal grandparents
(“Grandparents”). Children were also tested for exposure to drugs, and test
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-JC-2260 | March 15, 2017 Page 3 of 7 results would ultimately indicate that D.M. had been exposed to
methamphetamine.
[10] On May 20, 2016, DCS filed a verified petition alleging Children to be CHINS.
[11] On July 14, 2016, an evidentiary hearing was conducted on the allegations in
the CHINS petition. On July 29, 2016, the trial court found Children to be
CHINS.
[12] On August 11, 2016, a disposition hearing was conducted. On August 22,
2016, the trial court entered its disposition order, under which Mother was
ordered to participate in DCS-recommended services to continue to maintain
employment and a residence suitable for children. Children’s placement
remained with Grandparents.
[13] This appeal ensued.
Discussion and Decision [14] Mother contends on appeal that there was insufficient evidence to support the
trial court’s adjudication of Children as CHINS. The Indiana Supreme Court
has set forth the standard of review in such cases:
In reviewing a trial court’s determination that a child is in need of services, “[w]e neither reweigh the evidence nor judge the credibility of the witnesses.” In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012) (citing Egly v. Blackford Cty. Dept. of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). Instead, “[w]e consider only the
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-JC-2260 | March 15, 2017 Page 4 of 7 evidence that supports the trial court’s decision and reasonable inferences drawn therefrom.” Id.
Here, the trial court entered abbreviated findings and conclusions sua sponte. (Unlike CHINS dispositional decrees, see Ind.Code § 31-34-19-10 (2008), no statute expressly requires formal findings in a CHINS fact-finding order; nor did either party request them under Indiana Trial Rule 52(A).) As to the issues covered by the findings, we apply the two-tiered standard of whether the evidence supports the findings, and whether the findings support the judgment. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). But we 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. (internal quotation marks omitted).
In re S.D., 2 N.E.3d 1283, 1286-87 (Ind. 2014).
[15] The trial court adjudicated 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
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-JC-2260 | March 15, 2017 Page 5 of 7 (B) is unlikely to be provided or accepted without the coercive intervention of the court.
[16] In seeking a CHINS adjudication, the State must satisfy each of the statutory
elements by a preponderance of the evidence. In re D.J. v. Ind. Dep’t of Child
Servs., 68 N.E.3d 574, 580 (Ind. 2017). “Not every endangered child is a child
in need of services, permitting the State’s parens patriae intrusion into the
ordinarily private sphere of the family.” In re S.D., 2 N.E.2d at 1287. The
purpose of a CHINS proceeding is to protect children, not punish parents. In re
D.J., 68 N.E.3d at 580. Thus, the third element of the CHINS statute—that
care, treatment, or rehabilitation “is unlikely to be provided or accepted without
the coercive intervention of the court,” I.C. § 31-34-1-1—guards against
unwarranted interference in family life and ensures that coercion is ordered
only where parents are unable to provide for children’s needs, not when parents
simply have difficulty doing so. In re D.J., 68 N.E.3d at 580.
[17] Here, the trial court’s July 29, 2016, order finding Children to be CHINS
included relatively detailed findings concerning Mother’s history of narcotics
use, her compliance or lack thereof with DCS’s drug testing and treatment
referrals, and her mental health history. The trial court’s findings as to
Children’s need for care, treatment, or rehabilitation are largely formulaic, and
the record behind them—which focused on Mother’s problems with little
reference to effects on Children—might not have been sufficient in itself to
support the CHINS adjudication.
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-JC-2260 | March 15, 2017 Page 6 of 7 [18] By the time of the dispositional hearing, however, additional information in the
form of Children’s drug test results had been obtained, and the trial court
included that information among its findings. The drug test results indicated
that D.M. had tested positive for exposure to methamphetamine, despite
Mother’s statements that she had not used the drug in the home and Children’s
statements that they did not know anyone who used drugs. Further, Mother’s
engagement with substance use testing continued to be irregular at best, her
engagement with drug treatment services had not yet begun in earnest, and
Mother had not yet obtained mental health care that she needed. Further, DCS
caseworkers remained concerned that Mother’s use of narcotics could impair
her ability to provide adequate supervision for children.
[19] To the extent Mother’s brief notes the many positive facets of DCS’s reports
and the evidence presented at the various hearings in the case, we agree that
this all reflects positively on Mother. But we are not free to second-guess the
weight and credibility the trial court afforded to the evidence presented to it.
We thus conclude that there was sufficient evidence to sustain the CHINS
adjudication.
[20] Affirmed.
Najam, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-JC-2260 | March 15, 2017 Page 7 of 7