MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be
                                                                               Jul 16 2018, 9:36 am
regarded as precedent or cited before any
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
Heather M. Schuh-Ogle                                     Curtis T. Hill, Jr.
Thomasson, Thomasson, Long &                              Attorney General of Indiana
Guthrie, P.C.
                                                          Abigail R. Recker
Columbus, Indiana                                         Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of L.C.                                     July 16, 2018
                                                          Court of Appeals Case No.
                                                          18A-JC-313
C.J. (Mother),
                                                          Appeal from the Bartholomew
Appellant-Respondent,                                     Circuit Court
                                                          The Honorable Kelly Benjamin,
        v.
                                                          Judge
                                                          The Honorable Heather Mollo,
Indiana Department of Child                               Magistrate
Services,
                                                          Trial Court Cause No.
Appellee-Petitioner.                                      03C01-1706-JC-3442




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JC-313 | July 16, 2018                           Page 1 of 20
                                                Case Summary
[1]   Following fact-finding and dispositional hearings and orders, C.J. (“Mother”)

      appeals1 the trial court’s order adjudicating her child, L.C. (“Child”), to be a

      Child in Need of Services (“CHINS”). The sole issue she raises on appeal is

      whether there was sufficient evidence to support the determination that Child is

      a CHINS. We hold that there was not; therefore, we reverse.



                                Facts and Procedural History
[2]   On June 22, 2017, Officer Jason Lancaster (“Officer Lancaster”) with the

      Bartholomew County Sheriff’s Office noticed Mother’s vehicle parked at a rest

      park just south of Taylorsville. He had previously noticed the same vehicle

      parked at Heflin Park a few days earlier. When he approached the vehicle,

      Officer Lancaster noticed Mother and Child, then twelve years old, were

      sleeping in the front seat. It appeared to Officer Lancaster that Mother and

      Child were living in the vehicle. Mother informed Officer Lancaster that she

      and Child had been staying in their recreational vehicle (“RV”) at Heflin Park,

      but that the RV was being repaired and they had been staying at the rest park

      the last couple of nights. Mother also informed Officer Lancaster that she was

      planning to travel to Florida with Child, and that she only had $20.00 in her




      1
          J.C. (“Father”) does not actively participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-313 | July 16, 2018   Page 2 of 20
      pocket. Officer Lancaster contacted the Indiana Department of Child Services

      (DCS).


[3]   DCS family case manager (“FCM”) Edisa Mrkaljevic (“FCM Mrkaljevic”)

      arrived to assess the family’s situation. Mother explained to FCM Mrkaljevic

      that she and Child had been staying at Heflin Park in an RV but could only stay

      there for two weeks at a time and must be gone for a week prior to returning.

      Mother indicated that her RV was being repaired and she and Child had been

      staying at the rest park for the past three days.


[4]   Mother disclosed to FCM Mrkaljevic that she had a history of

      methamphetamine use. FCM Mrkaljevic asked Mother to submit to a drug

      screen and Mother did so. Mother also informed FCM Mrkaljevic that Mother

      had been prescribed medications, including hydrocodone, and Mother provided

      her with the prescription medication bottles. One prescription bottle had a

      razor blade and a small section of a drinking straw inside of it. Mother told

      Officer Lancaster that the straw had not been used recently but that, when it

      was used, it was used for methamphetamine. Tr. at 37. Officer Lancaster then

      asked to look through the rest of Mother’s purse and he discovered “some small

      white crystal product” inside a plastic baggie in a pill bottle. Id. at 37–38.

      Mother indicated that “she assumed” it was methamphetamine inside the

      baggie, but that she had found it in her camper and was intending to throw it

      away. Id. at 39.




      Court of Appeals of Indiana | Memorandum Decision 18A-JC-313 | July 16, 2018   Page 3 of 20
[5]   Mother was arrested on charges of Possession of Paraphernalia and Possession

      of Methamphetamine. DCS removed Child from Mother’s care and placed her

      with Father, her non-custodial parent. However, DCS removed Child from

      Father’s care five days later when it learned that Father tested positive for

      methamphetamine, amphetamine, and THC. DCS then placed Child with her

      maternal grandmother, Linda Coulter (“Coulter”).


[6]   On June 23, 2017, DCS filed a CHINS petition alleging, in relevant part:


                a. That [Child] is the biological child of [Mother] and [Father].


                b. That on June 22, 2017, the Indiana Department of Child
                Services received a report for an immediate assist in regards to
                [Child] with the perpetrator being [Mother] who was currently at
                Mile Marker 71 rest stop off of Interstate 65 Southbound.


                c. That upon arrival FCM Mrkaljevic was able to make contact
                with [Mother] and obtain a drug screen. [Mother] provided
                FCM with her current prescription of hydrocodone, which FCM
                noticed to have a straw and razorblade within the prescription
                bottle.


                d. That upon further investigation LEA[2] was able to search
                [Mother’s] purse which contained another straw, blue in color,
                with white residue on the inside. LEA also found another
                prescription bottle that contained a small baggie with a crystal




      2
          The document does not disclose for what “LEA” is an acronym.


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-313 | July 16, 2018   Page 4 of 20
              like substance in it. Another bottle was also found that had an
              orange pill with a T on it.


              e. Due to the items found on [Mother], LEA arrested her for
              possession of paraphernalia.


              f. That prior to taking [Mother] to the local jail, FCM Mrkaljevic
              interviewed [Mother] who reported that she and [Child] have
              been living out of their RV, bouncing between Heflin Park and
              the rest stops off Interstate 65, but was planning on moving to
              Florida at the end of the month. That [Mother] denied any
              current substance use.


              g. That FCM Mrkaljevic interviewed [Child] who confirmed her
              [sic] and her mother were living in their RV and planned to move
              to Florida. [Child] did not report any substance use concerns
              regarding her mother.


              h. That due to concerns of mother’s substance use, current arrest
              for possession of paraphernalia, and lack of stability[,] DCS
              found it to be in the best interests of the child to be removed from
              mother’s care.


      App. at 11-12.


[7]   On August 22, 2017, the trial court held a fact-finding hearing at which Bridget

      Lorenz Lemberg (“Lemberg”), the Lab Director and Toxicologist at Forensic

      Fluids Laboratory, testified by telephone. Mother objected to the telephonic

      testimony, and the trial court permitted the testimony but noted that, later, it

      would issue specific findings as to the objection and the admissibility of the

      testimony. Lemberg testified that two drug screens of Mother “were positive,”


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-313 | July 16, 2018   Page 5 of 20
      but she did not state when the drug screens were taken and for what substance

      they tested positive. Tr. at 17-18. DCS offered the results of the drug screens

      into evidence as Petitioner’s Exhibits 1 and 2. Mother objected to the

      admission of those exhibits, and the trial court took the admissibility of those

      exhibits “under advisement until the completion of the evidence.” Id. at 22.


[8]   FCM Mrkaljevic testified at the hearing regarding her interactions with Mother

      on June 22. She testified that she administered a drug screen to Mother after

      Mother admitted to a history of substance abuse, but that Mother “denied any

      recent [drug] use.”3 Id. at 44-45.


[9]   FCM Bethany Elmore (“FCM Elmore”) also testified. She stated that, on June

      28, Mother met with her and informed her that Mother had stayed a few nights

      with her brother. However, Mother would not tell FCM Elmore where she was

      currently staying and would not provide her brother’s address. Mother met

      with FCM Elmore again for a “facilitation” on July 18. Id. at 61. FCM Elmore

      was aware that Child was placed with her maternal grandmother, Coulter, and

      that Mother visited Child at Coulter’s home “about every other day.” Id. at 57-

      58, 73. FCM Elmore testified that Mother’s first drug screen “was positive,”

      but she did not state for what substance it tested positive. Id. at 52. FCM

      Elmore testified that a second drug screen also tested positive “for substances”

      but did not specify what “substances.” Id. at 53. She testified that DCS



      3
        Contrary to the State’s assertion, FCM Mrkaljevic did not provide any testimony regarding for what
      substance Mother tested positive. State’s Br. at 18.

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-313 | July 16, 2018                   Page 6 of 20
       believed court intervention was necessary due to Mother’s positive drug screens

       and “lack of stability.” Id. at 59.


[10]   Mother also testified at the fact-finding hearing. She stated that she and Child

       were staying in the RV at different locations and that she was always able to

       provide Child with three meals a day, “a roof over her head,” and basic

       necessities. Id. at 64. Mother testified that she was able to support her family

       with her disability benefits and child support payments made by Father. She

       testified that she was prescribed medications for injuries she had sustained

       when she fell down some stairs. Id. at 65. She testified that, even when the

       location of their home changed, Child had attended and continued to attend the

       same school, i.e., Smith Elementary, from the time she was in first grade until

       the time she was removed from Mother. Mother testified that Child made the

       honor roll every year. She stated that she was currently living in the RV again

       at Heflin Park, where she had electricity, running water, and where Child had

       her own bed and room. Mother testified that she had plans to move the RV to

       a location where RVs were permitted to park on a monthly basis. And she

       testified that she had never been criminally charged as a result of her arrest on

       June 22.


[11]   Coulter also testified at the hearing and confirmed that Mother had always

       provided for Child. She noted that Mother regularly visited Child and that the

       visits went well. She stated that Mother and Child have a very close

       relationship. Coulter testified that she believed Mother was a good mom who

       sometimes struggled financially but had gone without many times to ensure

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-313 | July 16, 2018   Page 7 of 20
       that Child’s needs were met. Coulter stated she had never observed Child

       without basic necessities. She testified that Mother and Child had been able to

       stay with her from time to time in the past. In addition, she was concerned

       about Child’s grades since her removal from Mother because Child’s most

       recent report reflected poor grades when previously she had consistently made

       the honor roll. Coulter believed the removal from Mother’s care and the

       resulting general upheaval were contributing to Child’s academic struggles.


[12]   The trial court took the matter under advisement and, on December 5, 2017, it

       issued an Order on Fact Finding Hearing at which it issued the following

       relevant findings and conclusions:


               The Court being duly advised finds that [Child] . . .is a Child in
               Need of Services as alleged in the petition.


               The Court now adjudicates the child, [Child], a Child in Need of
               Services as defined by 31-34-1-1.


               In support for this conclusion of law, the following findings of
               fact are found:


                                                   ***


               4) At the time of filing, [Child] and mother resided in
               Bartholomew County.


               5) Detective Lancaster, with Bartholomew County Sheriff’s
               Department, had contact with mother on or about June 22,
               2017[,] while in the course of investigating another matter.


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-313 | July 16, 2018   Page 8 of 20
         6) Detective Lancaster found mother and [Child] sleeping in a
         car at the southbound rest stop on I-65.


         7) Mother admitted that she and her daughter had been staying at
         the rest area for approximately three days and were living out of
         the car.


         8) Detective Lancaster contacted the DCS hotline with concerns
         as to the child’s well-being.


         9) CM Edisa Mrkaljevic, with local Bartholomew County DCS,
         was assigned to complete an assessment.


         10) During the assessment, Mother further reported that she and
         the child typically live in a RV but not at a permanent location.
         For two weeks at a time, they stay at Heflin Park. However,
         park rules limit lengths of stays to two weeks and require
         customers to be gone for at least a week before allowing a return.


         11) Mother stated the RV was being repaired, thus the reason the
         two were in a vehicle.


         11a)[4] The only location mother identified as an alternate site to
         stay when not at Heflin Park was the rest stop where she and
         child were found.


         12) The child appeared tired.




4
  The trial court erroneously listed two number 11s in its fact-finding section of the order. We refer to the
second number 11 finding as number 11a.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-313 | July 16, 2018                        Page 9 of 20
        13) The vehicle was observed to [be] full of “stuff.” The child
        had difficulty finding her things in the car.


        14) Mother also stated during the assessment that things were
        financially tough, that she only had $20.00 and that she was
        intending on traveling to Florida.


        15) During the course of assessment, mother reported a history of
        methamphetamine use.


        16) As part of assessment protocol, mother was asked to provide
        her prescription medication.


        17) In one of the prescription bottles, a razor blade and a
        diagonally cut straw [were] found.


        18) When asked if these items were used in association with a
        drug, mother responded in the affirmative for methamphetamine.


        19) During the assessment, a small baggie filled with a white
        substance was found in mother’s purse.


        20) Another straw was found in mother’s wallet.


        21) Mother reported that she found the baggy in the RV, had
        intended to throw it away and that she presumed the substance to
        be methamphetamine.


        22) Mother had no response as to why she was keeping a
        substance that she presumed to be methamphetamine in her
        purse.




Court of Appeals of Indiana | Memorandum Decision 18A-JC-313 | July 16, 2018   Page 10 of 20
        23) Mother was arrested on June 22, 2017[,] for possession of
        methamphetamine and possession of paraphernalia.


        24) DCS detained [Child] at the time due to mother’s arrest,
        mother’s instability, and mother’s possible drug use.


        25) [Child’s] father was contacted during the assessment and/or
        arrest. Father reported that he knew mother was struggling and
        that she was staying back and forth between Heflin Park and the
        rest area. Father also reported that mother had a history of
        methamphetamine use but was unaware of her current use.


        26) [Child] was originally placed with father until he provided a
        positive screen for methamphetamine and THC.


        27) [Child] was then removed from her father’s care and placed
        in relative care with maternal grandmother.


        28) Father had a subsequent screen for methamphetamine and
        THC on June 27, 2017.


        29) The DCS case was next assigned to FCM Bethany Elmore.


        30) FCM Elmore met with mother at the DCS offices on June
        28, 2017.


        31) When asked about her living arrangements, mother would
        not say where she was staying.


        32) FCM Elmore had no further contact with mother until her
        attendance at a Facilitation on July 18, 2017.




Court of Appeals of Indiana | Memorandum Decision 18A-JC-313 | July 16, 2018   Page 11 of 20
        33) Mother and FCM Elmore agree that mother has not
        attempted to contact DCS since the facilitation on July 18, 2017.


        34) FCM Elmore tried three times to speak to mother by calling
        the telephone number that mother provided. FCM Elmore could
        only leave messages for mother.


        35) Maternal grandmother reports that the child’s grades are
        poor; she is of the opinion that the upheaval with the living
        circumstances is affecting the child’s grades.


        36) At Fact-Finding, mother asserts that she was temporarily
        homeless for a short time while her RV was being repaired, but
        she has moved back in the RV.


        37) Mother further asserts that the RV has beds for sleeping,
        electricity and running water.


        38) Mother produced no evidence to support these assertions.


        39) No pictures of the RV were introduced.


        40) Mother offered no further information as to how she and her
        daughter have access to running water or electricity. No
        information was introduced as to whether Heflin Park offers
        actual campsites or whether there is hook-up available for water
        or electricity. In addition, no information was offered as to what
        type of restroom facilities, primitive or modern, are located at
        Heflin Park.


        41) The parking lot of the I-65 rest stop most certainly does not
        provide hook[-]up for electricity or water, although sinks and
        restrooms would be available in the rest stop building.


Court of Appeals of Indiana | Memorandum Decision 18A-JC-313 | July 16, 2018   Page 12 of 20
        42) Even assuming the RV meets minimum sufficient standards
        for shelter, the court cannot conclude that this is a single episode
        or one time occurrence.


        43) At the very least, it is an unacceptable living arrangement for
        one week out of every three.


        44) Mother had the opportunity to lend support to her assertions
        when asked about her living arrangements by FCM Elmore on
        June 28, 2017. Instead, mother refused to provide information
        about where she was staying.


        45) The veracity of mother’s assertions is also questionable given
        her conflicting statements of plans to travel in the car to Florida
        on $20.00.


        46) The Court must consider both the evidence and the lack of
        evidence.


        In adjudicating the child as a Child in Need of Services, the court
        finds the evidence set forth above to be sufficient without
        considering two drug screens completed by mother and offered into
        evidence by DCS. The court withholds a ruling on the admissibility
        of the two drug screens.


                                            ***


        The Court finds that it is in the best interests of the child to be
        removed from the home environment and remaining in the home
        would be contrary to the welfare of the child because: of an
        inability, refusal or neglect to provide shelter, care, and/or
        supervision at the present time.


App. at 27-29 (emphasis added).
Court of Appeals of Indiana | Memorandum Decision 18A-JC-313 | July 16, 2018   Page 13 of 20
[13]   The trial court held a dispositional hearing on December 19, 2017, at which

       FCM Jennifer Morgan (“FCM Morgan”) testified regarding DCS’s

       recommendations for services to Mother. She also referenced Mother’s

       “positive drug screens” but did not state the timing of those drug screens or the

       substance(s) for which they tested positive. Tr. at 89. She testified that Mother

       had refused to submit to a drug screen after the fact-finding hearing on August

       22. And she testified that she had only had contact with Mother twice since the

       fact-finding hearing, although she had tried to contact Mother by telephone on

       several occasions. However, FCM Morgan acknowledged that there was no

       court order in place requiring Mother to contact DCS or submit to drug screens.


[14]   Mother also testified at the dispositional hearing. She stated that the white

       substance found in her RV had been turned over to law enforcement, but that

       she had never been charged with any crime.


[15]   At the dispositional hearing, the trial court ordered Mother to engage in DCS-

       recommended services. The trial court “concede[d]” that the RV provided a

       roof and shelter, but stated it was troubled by the “transient nature of how

       [Mother] had to move around.” Id. at 98. This appeal ensued.



                                  Discussion and Decision
                                         Standard of Review
[16]   The trial court adjudicated Child to be a CHINS pursuant to Indiana Code

       Section 31-34-1-1, which provides:

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-313 | July 16, 2018   Page 14 of 20
               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.


[17]   In reviewing a CHINS determination, we do not reweigh evidence or assess

       witness credibility but consider only the evidence in favor of the juvenile court’s

       judgment, along with any reasonable inferences arising therefrom. J.M. v. Ind.

       Dep’t of Child Servs. (In re N.C.), 72 N.E.3d 519, 523 (Ind. Ct. App. 2017). When

       the trial court enters findings of fact and conclusions of law, as the court did

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

       findings: we consider, first, whether the evidence supports the findings and,

       second, whether the findings support the judgment. J.B. v. Ind. Dep’t of Child

       Servs. (In re S.D.), 2 N.E.3d 1283, 1287 (Ind. 2014); Ind. Trial Rule 52(A).


[18]   However, “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.” In re S.D., 2 N.E.3d at 1287.

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-313 | July 16, 2018   Page 15 of 20
       (quotation marks and citation omitted). Under the general judgment standard

       of review, the reviewing court “may look both to other findings and beyond the

       findings to the evidence of record to determine if the result is against the facts

       and circumstances before the court.” C.B. v. B.W., 985 N.E.2d 340, 344 (Ind.

       Ct. App. 2013), trans. denied. In deference to the trial court’s proximity to the

       issues, an appellate court will “disturb the judgment only where there is no

       evidence supporting the findings or the findings fail to support the judgment.”

       In re Guardianship of B.H., 770 N.E.2d 283, 287-288 (Ind. 2002) (quotations and

       citations omitted).


                 Sufficiency of Evidence that Child is a CHINS
[19]   A CHINS adjudication under Indiana Code Section 31–34–1–1 requires three

       basic elements: “that the parent’s actions or inactions have seriously

       endangered the child, that the child’s needs are unmet, and (perhaps most

       critically) that those needs are unlikely to be met without State coercion.” In re

       S.D., 2 N.E.3d at 1287. That final element “guards against 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. (quotation marks and citation

       omitted).


[20]   Courts should consider the family’s condition not only at the time the CHINS

       case was filed, but also when the case is heard at the fact-finding hearing. Gr.J.

       v. Ind. Dep’t of Child Serv. (In re D.J.), 68 N.E.3d 574, 580 (Ind. 2017); see also,


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-313 | July 16, 2018   Page 16 of 20
       E.B. v. Ind. Dep’t of Child Serv. (In re Des.B.), 2 N.E.3d 828, 836 (Ind. Ct. App.

       2014) (quotation marks and citation omitted) (“A CHINS adjudication may not

       be based solely on conditions that no longer exist, but the court should consider

       the family’s situation at the time the case is heard by the court.”). DCS has the

       burden of proving by a preponderance of the evidence that the children are

       CHINS. See, e.g., J.J. v. Ind. Dep’t of Child Serv. (In re K.S.), 78 N.E.3d 740, 744

       (Ind. Ct. App. 2017). DCS may not simply rely upon allegations; rather, it

       must gather the facts and the evidence to support its CHINS petition. D.B. v.

       Ind. Dep’t of Child Serv. (In re D.B.), 43 N.E.3d 599, 606 (Ind. Ct. App. 2015),

       trans. denied.


[21]   A CHINS designation “focuses on the child’s condition rather than the parent’s

       culpability.” In re K.S. at 745 (citing N.L. v. Ind. Dep’t of Child Serv. (In re N.E.),

       919 N.E.2d 102, 105 (Ind. 2010)). “The purpose of a CHINS adjudication is to

       provide proper services for the benefit of the child, not to punish the parent.”

       Id.


               To be a CHINS, a child must be seriously impaired or
               endangered “as a result of the inability, refusal, or neglect of the
               child’s parent” to provide necessary care. Ind. Code § 31–34–1–1
               (emphasis added). Children cannot become CHINS by the mere
               happenstance of a family’s economic misfortune; the statute
               requires an action or failure to act by the parent that leads to
               serious endangerment of the children as a result of the lack of
               necessary care. [A.M. v. Ind. Dep’t of Child Serv.,] In re S.M., 45
               N.E.3d [1252,] 1256 [(Ind. Ct. App. 2015)] (“The mere fact of an
               unemployed parent does not make a CHINS. The mere fact of a
               family on food stamps does not make a CHINS. Even the mere


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-313 | July 16, 2018   Page 17 of 20
                fact of a family living in a shelter while seeking stable housing
                does not make a CHINS.”).


       Ja.K. v. Ind. Dep’t of Child Serv. (In re S.K.), 57 N.E.3d 878, 883 (Ind. Ct. App.

       2016).


[22]   Here, the trial court based its CHINS determination on its finding that Mother

       had unstable housing.5 The trial court found6 that “at the very least, [Mother

       had] an unacceptable living arrangement for one week out of every three.”

       App. at 29. However, the evidence does not support that finding. DCS

       provided evidence that Mother and Child were living in Mother’s car at the

       time Child was removed, but it did not provide any evidence that Mother’s

       housing was inadequate at the time of the fact-finding hearing. The only

       evidence regarding Mother’s living arrangements at the time of the hearing was

       Mother’s testimony that she had repaired her RV and was again living in it at




       5
           The court correctly did not base its CHINS determination on Mother’s arrest. See Perrine v. Marion Cty.
       Office of Child Servs., 866 N.E.2d 269, 277 (Ind. Ct. App. 2007) (holding Mother’s arrest was insufficient to
       uphold a CHINS where law enforcement had prevented her from arranging for temporary care of the child
       and criminal charges were dropped). The trial court also correctly did not base its adjudication on alleged
       recent drug abuse. There was no evidence of what the white substance found in Mother’s RV was, and the
       mere presence of drug paraphernalia in a residence is insufficient to support a finding of neglect. Id. The
       only evidence in the record regarding recent drug use was that Mother tested positive for drugs or
       “substances.” Tr. at 53. However, the results of those drug screens were not in evidence, nor was there any
       testimony regarding for what drug Mother tested positive. As there was evidence that Mother was taking
       prescription drugs, it is not possible to determine from the record whether the drug screens were positive for
       legal or illegal drugs. Thus, the trial court made no finding that Mother had recently used illegal drugs or
       that she had ever used illegal drugs in Child’s presence. And evidence of a history of substance abuse, alone,
       is insufficient to uphold a CHINS adjudication. In re S.M., 45 N.E.3d at 1256.
       6
        The State is mistaken when it contends that Mother does not challenge any of the court’s findings of fact.
       Mother asserts there is no evidence to support the finding that she failed to provide adequate shelter for
       Child.

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-313 | July 16, 2018                     Page 18 of 20
       Heflin Park, where she had electricity and running water. DCS provided no

       evidence that Mother’s RV was insufficient housing or that it had ever

       requested to inspect Mother’s RV.


[23]   There was evidence that Mother could park her RV at Heflin Park for only two

       weeks at a time, and that she parked the RV at rest stops every third week.

       However, there was no evidence that living in the RV at a rest stop every third

       week had in any way endangered Child or caused her needs to be unmet.

       Mother testified that she had income from disability benefits and child support

       payments from Father. She further testified that Child had her own bed and

       room in the RV and that Child at all times had food and shelter, with running

       water and electricity. DCS presented no evidence to the contrary.


[24]   Mother further testified that Child had gone to the same school from first grade

       onward, even when she lived with Mother in the RV. And Mother testified that

       Child was on honor roll each school year. Again, DCS presented no evidence

       to the contrary. Coulter also testified that Child had a very close relationship

       with Mother and that her grades had been suffering ever since she had been

       removed from Mother’s care.


[25]   The only evidence in the record of inadequate housing was testimony regarding

       the three-day period when Mother and Child temporarily lived in Mother’s

       vehicle while the RV was being repaired. However, there was no evidence that

       the temporary living situation seriously endangered Child. Moreover, that

       situation had been remedied by the time of the fact-finding hearing and there


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-313 | July 16, 2018   Page 19 of 20
       was no evidence that such a situation was likely to occur again. See In re Des.B.,

       2 N.E.3d at 836 (noting a CHINS adjudication may not be based solely on

       conditions that no longer exist). DCS failed to prove7 by a preponderance of

       the evidence that Mother’s actions or inactions seriously endangered Child, that

       Child’s needs were ever unmet, or that Child’s needs would not be met in the

       future without the coercive intervention of the state.


[26]   Reversed.


       Crone, J., and Brown, J., concur.




       7
         To the extent the trial court put the burden of proof on Mother to prove that she had adequate housing,
       rather than on the State to prove Mother had inadequate housing—see findings 38-40, App. at 29—the trial
       court erred as a matter of law. In re K.S., 78 N.E.3d at 744; In re D.B., 43 N.E.3d at 606.

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-313 | July 16, 2018                  Page 20 of 20
