IN THE MATTER OF V.C. and J.C., Minor Children, N.C. (Mother) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 14, 2017
• Docket: 49A04-1708-JC-1877
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 14 2017, 8:34 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Lisa M. Johnson Curtis T. Hill, Jr. Brownsburg, Indiana Attorney General of Indiana

Abigail R. Recker Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

IN THE MATTER OF V.C. and December 14, 2017 J.C., Minor Children Court of Appeals Case No. 49A04-1708-JC-1877 Appeal from the Marion Superior N.C. (Mother), Court Appellant-Defendant, The Honorable Marilyn Moores, Judge v. The Honorable Rosanne Ang, Magistrate Indiana Department of Child Trial Court Cause No. Services, 49D09-1703-JC-681 Appellee-Plaintiff 49D09-1703-JC-682

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-JC-1877 | December 14, 2017 Page 1 of 10 May, Judge.

[1] N.C. (“Mother”) appeals the adjudication of her children, V.C. and Jo.C.,

(collectively, “Children”), as Children in Need of Services (“CHINS”). She

argues the trial court’s order is clearly erroneous because the Department of

Child Services (“DCS”) did not prove Children were CHINS as required by

statute. We affirm.

Facts and Procedural History [2] N.C. and J.C. (“Father”) (collectively, “Parents”), are the parents of V.C. and

Jo.C., born October 17, 2003, and September 30, 2007, respectively. On

February 19, 2017, Father overdosed on heroin and passed out on Jo.C.’s bed.

Mother was at work at the time. Jo.C. found his Father unresponsive and

enlisted the help of his great-grandmother, who was also home. Father was

taken to the hospital and recovered.

[3] DCS investigated the incident, and spoke with Father, who admitted he had

taken heroin and pain pills in the past, and had overdosed once before. Despite

the couple being married for fifteen years, Mother indicated she was unaware of

Father’s drug use. On February 28, 2017, DCS submitted its initial intake

report, which stated Father “volunteered to leave the home and not return until

his drug use has been addressed[.]” (App. Vol. II at 38.) Further, the report

indicated Mother “agreed to not allow [Father] to reside in the home until he is

a sober caregiver.” (Id.)

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-JC-1877 | December 14, 2017 Page 2 of 10 [4] On March 2, 2017, DCS filed a petition alleging Children were CHINS because

Father overdosed on heroin in Jo.C.’s presence, Father admitted to using

heroin, Father tested positive for opiates on February 28, 2017, and “[Mother]

has failed to identify [Father’s] drug use and cannot ensure the safety and well-

being of [Children] while in [Father’s] care.” (Id. at 30.) On the same day, the

trial court entered an order allowing Children to reside with Mother

“contingent upon [Father] not residing in the home and [Mother] and

[Children’s] participation in homebased therapy.” (Id. at 45.) The trial court

ordered supervised parenting time for Father and authorized DCS to put

services into place for Father.

[5] On June 19, 2017, the trial court held a fact-finding hearing on the CHINS

petition. Father testified he did not live with Mother and Children because he

was “not allowed” to do so. (Tr. at 11.) Father indicated he understood he

could return after he has “[f]ive clean drug screens and meet[s] with a

therapist,” (id.), but he had not met those requirements by the time of the fact-

finding hearing.

[6] Mother testified she did not know Father used drugs and had not spoken to him

about the overdose that prompted the DCS investigation. Mother also testified

she would have to know that Father “is not going to be under the influence of

anything at all[,]” (id. at 21), before she would allow him to live with her and

Children because she did not tolerate drug use. Mother testified she did not

believe Father posed a threat to Children because “he wouldn’t let anything

hurt his children or any kind of harm come around his children.” (Id. at 26.)

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-JC-1877 | December 14, 2017 Page 3 of 10 Mother participated in therapy as required by the trial court but stated, “I don’t

think that I need it.” (Id. at 27.)

[7] At the time of the fact-finding hearing, Debra Lampkins was Mother’s

homebased therapist. Lampkins testified Mother denied Father had overdosed

or that substance abuse occurred in the home. Lampkins indicated that if

Mother “were to have acknowledged that those things did occur . . . [i]t would

make it a little bit more easier [sic] to address some issues.” (Id. at 48.)

[8] The trial court adjudicated Children as CHINS on July 17, 2017. On August 8,

2017, the trial court held a dispositional hearing. The trial court entered

parental participation orders for both parents the same day. Mother’s order

required her to engage “in a home-based therapy program referred by the

Family Case Manager and follow all recommendations.” (App. Vol. II at 98.)

She was also ordered to “engage in [Children’s] therapy as recommended and

follow all recommendations.” (Id.) The trial court ordered Father to engage in

home-based therapy and follow all recommendations; complete a substance

abuse assessment and successfully complete all recommended treatment; submit

to random drug screens; and engage in Children’s therapy and follow all

recommendations.

Discussion and Decision

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-JC-1877 | December 14, 2017 Page 4 of 10 [9] A CHINS proceeding is civil in nature, so DCS 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). Ind. Code § 31-34-1-1 states:

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.

A CHINS adjudication “focuses on the condition of the child,” and not the

culpability of the parent. In re N.E., 919 N.E.2d at 105. The purpose of finding

a child to be a CHINS is to provide proper services for the benefit of the child,

not to punish the parent. Id. at 106.

[10] When a juvenile court enters findings of fact and conclusions of law in a

CHINS decision, we apply a two-tiered review. Parmeter v. Cass Cty. DCS, 878

N.E.2d 444, 450 (Ind. Ct. App. 2007), reh’g denied. We first consider whether

the evidence supports the findings and then whether the findings support the

judgment. Id. We may not set aside the findings or judgment unless they are

clearly erroneous. Id. Findings are clearly erroneous when the record contains

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-JC-1877 | December 14, 2017 Page 5 of 10 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. We give due

regard to the juvenile court’s ability to assess witness credibility and we do not

reweigh the evidence; we instead consider the evidence most favorable to the

judgment with all reasonable inferences drawn in favor of the judgment. Id.

We defer substantially to findings of fact, but not to conclusions of law. Id.

Challenged Finding

[11] Mother challenges the trial court’s finding that “[Mother] has failed to take any

action to protect the children from being exposed to [Father’s] drug use.” (App.

Vol. II at 86.) Mother argues that finding is clearly erroneous and not

supported by the evidence because Father does not live with Children, Father

volunteered to move out of the home until he completed drug treatment, and

Mother will not allow Father to live with Children until he completes drug

treatment. The State points to evidence that Mother allowed Father to live with

Children until DCS completed its investigation, over a week after Father

overdosed; that Mother did not acknowledge that Father had a drug problem or

that he overdosed; and that Mother testified she did not believe Father posed a

threat to Children. Mother’s argument is a request that we reweigh the

evidence and judge the credibility of witnesses, which we cannot do. See

Parmeter, 878 N.E.2d at 450 (appellate court cannot reweigh evidence or judge

the credibility of witnesses). Mother does not challenge any other of the trial

court’s findings, and thus they stand as proven. See Madlem v. Arko, 592 N.E.2d

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-JC-1877 | December 14, 2017 Page 6 of 10 686, 687 (Ind. 1992) (“Because Madlem does not challenge the findings of the

trial court, they must be accepted as correct.”).

Mother’s Challenges to the Trial Court’s Conclusions

[12] The trial court found:

[Mother] engaged in homebased therapy with Debra Lampkins. In working with Ms. Lampkins, [Mother] has denied any drug use in the home and has denied that [Father] overdosed in February. Ms. Lampkins is unable to fully provide therapeutic services to [Mother] without recognition of the concerns which exist in the family home.

(App. Vol. II at 85.) Mother argues this finding does not support the trial

court’s conclusion “that the children are neglected or that the coercive

intervention of the court is necessary.” (Br. of Appellant at 17.) She asserts

“[Children] are not CHINS simply because Mother failed to fully cooperate

with Lampkins.” (Id. at 18.) In support of her argument, she cites In re T.H.,

856 N.E.2d 1247 (Ind. Ct. App. 2006), and M.K. v. Indiana DCS, 964 N.E.2d

240, 247 (Ind. Ct. App. 2012). Both are inapposite.

[13] The CHINS action in In re T.H. was based on Father’s improper storage of his

handgun and his refusal to cooperate with DCS services. We reversed the trial

court’s CHINS adjudication because there was no evidence “the gun still

endangered the children at the time of the hearing in this case.” In re T.H., 856

N.E.2d at 1251. Additionally, “[w]e decline[d] to say that failing to complete

services necessarily means a child is a CHINS unless there is some evidence of

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-JC-1877 | December 14, 2017 Page 7 of 10 substantial parental shortcomings endangering a child that needed to be

addressed by these services.” Id. Such is not the case here, as Father’s drug use

has not been remedied like the gun storage issues in In re T.H.

[14] In M.K., we also reversed a CHINS adjudication despite a parent being

uncooperative, explaining that “to the extent the Guardian ad Litem cites

Father’s evasiveness or refusal to answer questions as evidence supporting the

judgment, we note that Father’s reticence pertained to disclosing specific facts

surrounding the events in Texas involving his own mother’s treatment of

Mother, based seemingly on racial grounds.” M.K., 964 N.E.2d at 247 n.8

(internal citations to record omitted). M.K. does not apply here, as the housing

issues that precipitated DCS’s involvement with the family in M.K. had been

resolved by the time of the hearing, whereas Father’s drug use has not been

remedied.

[15] Herein, Children are not CHINS because Mother did not cooperate with her

therapist. Children are CHINS because Father used drugs in the familial home,

overdosed, and has not sought proper treatment, and Mother’s reluctance to

acknowledge Father’s behaviors creates concern about her ability to protect

Children if Father continues to use drugs.

[16] The trial court also found:

[Children’s] physical or mental condition is [sic] 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

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-JC-1877 | December 14, 2017 Page 8 of 10 care, education, or supervision. [Father] used heroin at the family residence with [Jo.C.] in the home and nearly died in [Jo.C.’s] bed. This is not the first time that [Father] has overdosed. [Father] has failed to seek treatment for his addiction and continues to use illicit substances. [Mother] denies her husband’s drug use and alleges that she would not allow him to return to the home if he were using illicit substances. However, [Mother] picked [Father] up from the hospital after his most recent overdose and allowed him to remain in the home until the involvement of the DCS. [Mother] has failed to acknowledge the severe substance abuse on the part of her husband and protect the children from the same.

(App. Vol. II at 86.) Mother argues the trial court’s finding, “[Mother] picked

[Father] up from the hospital after his most recent overdose and allowed him to

remain in the home until the involvement of the DCS[,]” (id.), does not support

the conclusion “that the coercive intervention of the court is necessary.” (Br. of

Appellant at 18.)

[17] However, that finding was not listed as supporting the trial court’s conclusion

the coercive intervention of the court is necessary. Instead, it was cited as a

reason Children’s physical or mental conditions were seriously impaired or

endangered as a result of Parents’ inability, refusal, or neglect to supply

necessary food, clothing, shelter, medical care, education, or supervision.

Further, even if the finding were erroneous, “even an erroneous finding is not

fatal to a trial court’s judgment if the remaining valid findings and conclusions

support the judgment, rendering the erroneous finding superfluous and

harmless as a matter of law.” Curley v. Lake Cty. Bd. of Elections & Registration,

896 N.E.2d 24, 32 (Ind. Ct. App. 2008), trans. denied. Court of Appeals of Indiana | Memorandum Decision 49A04-1708-JC-1877 | December 14, 2017 Page 9 of 10 [18] Here, DCS presented evidence Father used heroin while at home with Jo.C.

and overdosed. Father had not obtained substance abuse treatment or

participated in drug screens at the time of the fact-finding or dispositional

hearings, though he had been ordered to do so by the trial court. While Mother

ensured Father did not live with Mother and Children, she did not acknowledge

Father had a drug problem or that Father overdosed. We conclude DCS

presented sufficient evidence to support the trial court’s findings and the

findings supported the conclusions that resulted in Children being declared

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

sufficient to support CHINS adjudication when Mother was under the influence

of marijuana while child was in the home).

Conclusion [19] DCS presented evidence Father used heroin in the family home, overdosed,

and had not obtained treatment. In addition, there was evidence Mother

refused to acknowledge Father’s drug problem and had not benefitted from

services. Based thereon, we conclude that evidence supported the trial court’s

findings and those findings supported the trial court’s conclusion Children were

CHINS. Accordingly, we affirm.

[20] Affirmed.

Vaidik, C.J., and Altice, J., concur

Court of Appeals of Indiana | Memorandum Decision 49A04-1708-JC-1877 | December 14, 2017 Page 10 of 10