MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Mar 07 2018, 7:40 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 Anna Onaitis Holden Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of: March 7, 2018
S.T. and D.T. (Minor Children) Court of Appeals Case No. 49A05-1709-JC-2159 Children in Need of Services Appeal from the Marion Superior and K.T. (Mother), Court Appellant-Defendant, The Honorable Marilyn A. Moores, Judge v. The Honorable Jennifer Hubartt, Judge Pro Temp Indiana Department of Child The Honorable Beth Jansen, Services, Magistrate Appellee-Plaintiff Trial Court Cause Nos. 49D09-1702-JC-634, 49D09-1702- JC-635
Court of Appeals of Indiana | Memorandum Decision 49A05-1709-JC-2159 | March 7, 2018 Page 1 of 10 Altice, Judge.
Case Summary
[1] K.T. (Mother) appeals from the trial court’s order adjudicating her children to
be Children in Need of Services (CHINS). On appeal, Mother argues that some
of the trial court’s findings are clearly erroneous and that its judgment is not
supported by sufficient evidence.
[2] We affirm.
Facts & Procedural History
[3] Mother has two children; S.T., born in September 2014, and D.T., born in
March 2016 (collectively, the Children). This case marks the third time in the
Children’s short lives that the family has come to the attention of the
Department of Child Services (DCS). DCS first became involved shortly after
S.T.’s birth, when Mother admitted to using marijuana during her pregnancy.
Mother agreed to an informal adjustment and was ordered to complete a
substance abuse assessment and complete all resulting treatment
recommendations. Mother failed to complete the substance abuse assessment,
but the informal adjustment was nevertheless closed.
[4] DCS conducted a second investigation shortly after D.T.’s birth because
Mother had again used marijuana during her pregnancy. The investigation
culminated in a CHINS finding with respect to both of the Children following
Court of Appeals of Indiana | Memorandum Decision 49A05-1709-JC-2159 | March 7, 2018 Page 2 of 10 Mother’s admission that the Children were CHINS because she “need[ed]
assistance providing a safe, stable, and appropriate living environment free from
substance abuse.” Exhibit Volume at 5. The Children remained in Mother’s
care, and Mother was ordered to participate in home-based therapy and case
management. Mother completed services and the CHINS case was closed.
[5] DCS began its third investigation in February 2017 after receiving an
anonymous report concerning Mother and the Children. A DCS assessment
worker spoke to Mother at the hotel where she was residing with the Children,
and Mother denied the allegations in the anonymous report. Mother did,
however, admit to using marijuana. As a result, DCS filed a petition alleging
that the Children were CHINS, and the trial court ordered the Children
removed from Mother’s care. Thereafter, Mother exercised extended daily
visitation with the Children in her home with pop-in supervision from a home-
based case manager.
[6] A fact-finding hearing was conducted on June 15, 2017, and the trial court
issued its order finding the Children to be CHINS on August 24, 2017. A
dispositional hearing was held on August 24, 2017, and the trial court issued its
dispositional order the same day. Mother now appeals. Additional facts will be
provided as necessary.
Discussion & Decision
[7] On appeal, Mother challenges some of the trial court’s findings of fact, as well
as its determination that the Children are CHINS. Where, as here, a trial court
Court of Appeals of Indiana | Memorandum Decision 49A05-1709-JC-2159 | March 7, 2018 Page 3 of 10 enters findings of fact and conclusions of law in support of its CHINS
determination, we apply a two-tiered standard of review. Parmeter v. Cass Cnty.
Dep’t of Child Servs., 878 N.E.2d 444, 450 (Ind. Ct. App. 2007). First, we
consider whether the evidence supports the findings, and second, whether the
findings support the judgment. Id. We will not set aside the findings or
judgment unless they are clearly erroneous. Id. Findings are clearly erroneous
when the record contains no facts to support them either directly or by
inference, and a judgment is clearly erroneous if it relies on an incorrect legal
standard. Id. While we defer to the trial court’s findings of fact, we do not do
so as to its conclusions of law. Id. Additionally, we will not reweigh the
evidence; rather, we consider the evidence favorable to the judgment and draw
all reasonable inferences in favor of the judgment. Id.
[8] We first address Mother’s arguments that certain findings of the trial court are
clearly erroneous. Mother first challenges the trial court’s finding that “Mother
had submitted to drug testing and she disputes the results.” Appellant’s Appendix
at 145. Mother concedes that she disputed the results of one drug screen, but
she argues that the trial court’s finding is misleading because it suggests that she
disputed the results of multiple drug screens. In other words, Mother does not
dispute the finding itself, but its implication as she perceives it. This is not
enough to establish that the finding was clearly erroneous. The record
establishes that Mother disputed the results of at least one drug screen by
claiming that the sample could not have been hers because it was negative for
certain prescribed medication she had been taking at the time. This evidence
Court of Appeals of Indiana | Memorandum Decision 49A05-1709-JC-2159 | March 7, 2018 Page 4 of 10 was sufficient to support the trial court’s finding that Mother had submitted to
drug testing but disputed the results.
[9] Mother also challenges two of the trial court’s findings concerning the impact of
her substance abuse on the Children. Specifically, the trial court found that
“Mother has a history of drug use and that drug use has negatively impacted
her ability to parent.” Id. at 145. The trial court further found that “[d]ue to
repeated involvement with this Court and DCS, the Court finds that Mother’s
substance abuse issues have yet to be successfully treated and pose a threat to
the [C]hildren.” Id. According to Mother, there is no evidence in the record to
support a finding that Mother’s marijuana use negatively affected her ability to
parent or posed a threat to the Children. We disagree.
[10] In a previous proceeding, Mother admitted that her drug use negatively
impacted her ability to parent. Specifically, she admitted that the Children were
CHINS because she required assistance to provide them with a safe, stable, and
appropriate living environment free from substance abuse. Moreover, Mother
has never completed a substance abuse assessment or treatment, and she did
not consistently submit to random drug screens during the DCS investigation in
this case.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Mar 07 2018, 7:40 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 Anna Onaitis Holden Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of: March 7, 2018
S.T. and D.T. (Minor Children) Court of Appeals Case No. 49A05-1709-JC-2159 Children in Need of Services Appeal from the Marion Superior and K.T. (Mother), Court Appellant-Defendant, The Honorable Marilyn A. Moores, Judge v. The Honorable Jennifer Hubartt, Judge Pro Temp Indiana Department of Child The Honorable Beth Jansen, Services, Magistrate Appellee-Plaintiff Trial Court Cause Nos. 49D09-1702-JC-634, 49D09-1702- JC-635
Court of Appeals of Indiana | Memorandum Decision 49A05-1709-JC-2159 | March 7, 2018 Page 1 of 10 Altice, Judge.
Case Summary
[1] K.T. (Mother) appeals from the trial court’s order adjudicating her children to
be Children in Need of Services (CHINS). On appeal, Mother argues that some
of the trial court’s findings are clearly erroneous and that its judgment is not
supported by sufficient evidence.
[2] We affirm.
Facts & Procedural History
[3] Mother has two children; S.T., born in September 2014, and D.T., born in
March 2016 (collectively, the Children). This case marks the third time in the
Children’s short lives that the family has come to the attention of the
Department of Child Services (DCS). DCS first became involved shortly after
S.T.’s birth, when Mother admitted to using marijuana during her pregnancy.
Mother agreed to an informal adjustment and was ordered to complete a
substance abuse assessment and complete all resulting treatment
recommendations. Mother failed to complete the substance abuse assessment,
but the informal adjustment was nevertheless closed.
[4] DCS conducted a second investigation shortly after D.T.’s birth because
Mother had again used marijuana during her pregnancy. The investigation
culminated in a CHINS finding with respect to both of the Children following
Court of Appeals of Indiana | Memorandum Decision 49A05-1709-JC-2159 | March 7, 2018 Page 2 of 10 Mother’s admission that the Children were CHINS because she “need[ed]
assistance providing a safe, stable, and appropriate living environment free from
substance abuse.” Exhibit Volume at 5. The Children remained in Mother’s
care, and Mother was ordered to participate in home-based therapy and case
management. Mother completed services and the CHINS case was closed.
[5] DCS began its third investigation in February 2017 after receiving an
anonymous report concerning Mother and the Children. A DCS assessment
worker spoke to Mother at the hotel where she was residing with the Children,
and Mother denied the allegations in the anonymous report. Mother did,
however, admit to using marijuana. As a result, DCS filed a petition alleging
that the Children were CHINS, and the trial court ordered the Children
removed from Mother’s care. Thereafter, Mother exercised extended daily
visitation with the Children in her home with pop-in supervision from a home-
based case manager.
[6] A fact-finding hearing was conducted on June 15, 2017, and the trial court
issued its order finding the Children to be CHINS on August 24, 2017. A
dispositional hearing was held on August 24, 2017, and the trial court issued its
dispositional order the same day. Mother now appeals. Additional facts will be
provided as necessary.
Discussion & Decision
[7] On appeal, Mother challenges some of the trial court’s findings of fact, as well
as its determination that the Children are CHINS. Where, as here, a trial court
Court of Appeals of Indiana | Memorandum Decision 49A05-1709-JC-2159 | March 7, 2018 Page 3 of 10 enters findings of fact and conclusions of law in support of its CHINS
determination, we apply a two-tiered standard of review. Parmeter v. Cass Cnty.
Dep’t of Child Servs., 878 N.E.2d 444, 450 (Ind. Ct. App. 2007). First, we
consider whether the evidence supports the findings, and second, whether the
findings support the judgment. Id. We will not set aside the findings or
judgment unless they are clearly erroneous. Id. Findings are clearly erroneous
when the record contains no facts to support them either directly or by
inference, and a judgment is clearly erroneous if it relies on an incorrect legal
standard. Id. While we defer to the trial court’s findings of fact, we do not do
so as to its conclusions of law. Id. Additionally, we will not reweigh the
evidence; rather, we consider the evidence favorable to the judgment and draw
all reasonable inferences in favor of the judgment. Id.
[8] We first address Mother’s arguments that certain findings of the trial court are
clearly erroneous. Mother first challenges the trial court’s finding that “Mother
had submitted to drug testing and she disputes the results.” Appellant’s Appendix
at 145. Mother concedes that she disputed the results of one drug screen, but
she argues that the trial court’s finding is misleading because it suggests that she
disputed the results of multiple drug screens. In other words, Mother does not
dispute the finding itself, but its implication as she perceives it. This is not
enough to establish that the finding was clearly erroneous. The record
establishes that Mother disputed the results of at least one drug screen by
claiming that the sample could not have been hers because it was negative for
certain prescribed medication she had been taking at the time. This evidence
Court of Appeals of Indiana | Memorandum Decision 49A05-1709-JC-2159 | March 7, 2018 Page 4 of 10 was sufficient to support the trial court’s finding that Mother had submitted to
drug testing but disputed the results.
[9] Mother also challenges two of the trial court’s findings concerning the impact of
her substance abuse on the Children. Specifically, the trial court found that
“Mother has a history of drug use and that drug use has negatively impacted
her ability to parent.” Id. at 145. The trial court further found that “[d]ue to
repeated involvement with this Court and DCS, the Court finds that Mother’s
substance abuse issues have yet to be successfully treated and pose a threat to
the [C]hildren.” Id. According to Mother, there is no evidence in the record to
support a finding that Mother’s marijuana use negatively affected her ability to
parent or posed a threat to the Children. We disagree.
[10] In a previous proceeding, Mother admitted that her drug use negatively
impacted her ability to parent. Specifically, she admitted that the Children were
CHINS because she required assistance to provide them with a safe, stable, and
appropriate living environment free from substance abuse. Moreover, Mother
has never completed a substance abuse assessment or treatment, and she did
not consistently submit to random drug screens during the DCS investigation in
this case. At the fact-finding hearing, Mother testified that she had previously
used marijuana to cope with stress and prevent stress-related seizures, but that
she no longer needed marijuana because she had begun using “these little
Chinese balls that you put in your hand” to relieve stress. Transcript at 33. The
trial court specifically found that Mother’s testimony that she had stopped using
drugs was not credible. Being in the care of a parent who regularly uses illegal
Court of Appeals of Indiana | Memorandum Decision 49A05-1709-JC-2159 | March 7, 2018 Page 5 of 10 drugs to cope with stress presents an obvious risk to a child, both because an
intoxicated parent cannot provide adequate supervision and because the parent
is at risk for arrest and incarceration. All of this evidence supports the trial
court’s findings that Mother’s drug use has negatively impacted her ability to
parent and poses a risk to the Children.
[11] Mother also challenges the trial court’s finding that “Mother acknowledges that
she recommended that the [C]hildren be put in the care of an adult and they
were then injured by that adult.” Appellant’s Appendix at 145. Again, Mother
does not challenge the finding itself, but its perceived implication. Mother does
not dispute that DCS placed the Children with her friend, Kierra Hutchinson,
at her request. Nor does Mother dispute that the Children suffered injuries
while in Hutchinson’s care, necessitating their removal and placement with a
different caregiver. Instead, Mother argues that the trial court’s finding suggests
Mother exercised poor judgment by trusting Hutchinson, an assertion she
claims is not supported by the evidence. But the trial court made no specific
finding that Mother was in any way responsible for the injuries the Children
suffered in Hutchinson’s care, and we decline to look beyond the language of
the finding itself. When taken at face value, the trial court’s finding that the
Children were injured while in the care of an individual Mother recommended
is clearly supported by the evidence.
[12] We now turn our attention to Mother’s argument that the trial court’s CHINS
determination in not supported by sufficient evidence. “Because a CHINS
proceeding is a civil action, the State must prove by a preponderance of the
Court of Appeals of Indiana | Memorandum Decision 49A05-1709-JC-2159 | March 7, 2018 Page 6 of 10 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). In reviewing the sufficiency of the evidence
supporting a CHINS determination, we consider only the evidence most
favorable to the judgment and the reasonable inferences flowing therefrom. In
re J.L., 919 N.E.2d 561, 563 (Ind. Ct. App. 2009).
[13] In this case, DCS alleged that the Children were CHINS pursuant to Ind. Code
§ 31-34-1-1, which provides that a child under the age of eighteen is a CHINS
under the following circumstances:
(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] Mother argues that the record is devoid of evidence to support trial court’s
finding that the Children’s physical or mental conditions were seriously
impaired or endangered as a result of Mother’s marijuana use. On appeal, she
likens the circumstances of this case to those presented in In re K.S., 78 N.E.3d
Court of Appeals of Indiana | Memorandum Decision 49A05-1709-JC-2159 | March 7, 2018 Page 7 of 10 740 (Ind. Ct. App. 2017), and In re S.M., 45 N.E.3d 1252 (Ind. Ct. App. 2015),
both of which we find distinguishable.
[15] In K.S., this court reversed a CHINS determination based on a mother’s
marijuana use and allegedly unstable housing. 78 N.E.3d at 744. In doing so,
the court reasoned that the mother had admitted to using marijuana two
months before the child’s birth to increase her appetite during pregnancy, but
there was no evidence that this single use of marijuana had any negative impact
on the child. Id. at 745. The court further explained that the trial court’s
finding that the mother lacked stable housing was unsupported by the evidence.
Id.
[16] In this case, on the other hand, Mother had prior DCS contacts, including a
prior CHINS adjudication, based on her use of marijuana during both of her
pregnancies.1 Mother admitted in the previous CHINS case that she was
unable to provide the Children with a safe and stable environment free of
substance abuse without the assistance of DCS. Mother participated in some
services during the previous CHINS case, but she has nevertheless continued to
use marijuana.
[17] In S.M., this court reversed a CHINS determination based in part on the
mother’s use of marijuana while pregnant. 45 N.E.3d at 1253-54. In finding
1 On appeal, Mother seems to suggest that the evidence established that she smoked marijuana during her first pregnancy only. We note, however, that Mother testified that both of the prior DCS interventions resulted from her marijuana use while pregnant.
Court of Appeals of Indiana | Memorandum Decision 49A05-1709-JC-2159 | March 7, 2018 Page 8 of 10 the evidence insufficient to support the CHINS determination, this court noted
that the mother had a history of sporadic marijuana use and prior DCS
substantiations. Id. at 1256. The court noted further, however, that every drug
screen the mother provided during the CHINS case was negative and that the
mother had participated in a substance abuse assessment and no treatment was
recommended as a result. Id. The court also noted that there was no evidence
contradicting the mother’s testimony that she had not known she was pregnant
when she used marijuana and that she had stopped using marijuana as soon as
she realized she was pregnant. Id.
[18] Unlike the mother in S.M., Mother has not undergone a substance abuse
assessment, and she did not consistently submit to random drug screens while
the CHINS petition in this case was pending. Further, the trial court
specifically found Mother’s testimony that she had stopped using marijuana to
be lacking in credibility.
[19] Mother used marijuana during both of her pregnancies and she admitted in the
previous CHINS proceeding that she needed assistance in providing the
Children with a safe, stable, and appropriate living environment free from
substance abuse. Despite her two prior contacts with DCS, Mother has
continued to use marijuana. It is of particular concern that Mother has never
completed a substance abuse assessment and failed to consistently submit to
drug screens during the pendency of the CHINS petition in this case. We also
note that Mother testified that she relied on marijuana to cope with stress so
severe that it caused her to suffer seizures, but that she no longer needed
Court of Appeals of Indiana | Memorandum Decision 49A05-1709-JC-2159 | March 7, 2018 Page 9 of 10 marijuana because she was using “Chinese balls” to relieve her stress.
Transcript at 33. The trial court did not find Mother’s testimony that she had
stopped using drugs to be credible. Mother’s dependence on illegal drugs to
manage her apparently extreme levels of stress, coupled with the Children’s
very young ages, support the trial court’s finding that the Children’s well-being
was seriously endangered so as to support the CHINS determination.
[20] Judgment affirmed.
[21] May, J. and Vaidik C.J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1709-JC-2159 | March 7, 2018 Page 10 of 10