MEMORANDUM DECISION
                                                                  Mar 30 2015, 9:07 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Deborah K. Smith                                          Gregory F. Zoeller
Sugar Creek Law                                           Attorney General of Indiana
Thorntown, Indiana
                                                          Robert J. Henke
                                                          David E. Corey
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of D.P. & C.H.,                            March 30, 2015
Children Alleged To Be Children                          Court of Appeals Case No.
in Need of Services,                                     06A01-1408-JC-339
                                                         Appeal from the Boone Circuit
T.P., Mother,                                            Court
                                                         The Honorable J. Jeffrey Edens,
Appellant-Respondent,                                    Judge
        v.                                               The Honorable Sally E. Berish,
                                                         Magistrate

The Indiana Department of                                Cause Nos.: 06C01-1312-JC-380;
                                                         06C01-1312-JC-381
Child Services,
Appellee-Petitioner.




Brown, Judge.



Court of Appeals of Indiana | Memorandum Decision 06A01-1408-JC-339 | March 30, 2015      Page 1 of 15
[1]   T.P. (“Mother”) appeals from the trial court’s order determining that D.P. and

      C.H. (the “Children”) are children in need of services (“CHINS”).1 Mother raises

      one issue, which we restate as whether sufficient evidence supports the court’s

      determination that the Children are CHINS. We affirm.


                                               Facts and Procedural History

[2]   Mother is the mother of D.P., born in August 2000, and C.H., born in November

      2007. J.H. (“Father J.H.”) is the biological father of D.P.2 On December 28, 2013,

      the Boone County Sheriff’s Department received a report of a domestic disturbance

      at the home of Mother, Father J.H., and the Children, and Deputy Jeremy

      McClaine responded to the report. Father J.H. answered the door, acknowledged

      the domestic disturbance, and informed Deputy McClaine he had walked into one

      of the Children’s rooms where Mother was using heroin and had tried to grab it

      from her and when doing so got her hand. An unused needle was found at the foot

      of the bed and a second unused needle was found in Mother’s coat in another

      bedroom. Deputy McClaine observed that the speech of Mother and Father J.H.

      was slurred, that their balance was impaired, and that Father continued to drink

      while police were at the home. Mother went to the hospital and Father J.H. was

      arrested for domestic battery. Law enforcement placed the Children next door at

      the home of Father J.H.’s parents. On December 29, 2013, DCS family case




         1
             D.P.’s father and C.H.’s father do not participate in this appeal.
         2
           A no contact order is in place between Mother and C.H.’s father, and C.H. has no real contact with his
         father.

         Court of Appeals of Indiana | Memorandum Decision 06A01-1408-JC-339 | March 30, 2015            Page 2 of 15
      manager Chelsea Mikesell (“FCM Mikesell”) initiated an investigation and visited

      the home and spoke with Mother.


[3]   On January 2, 2014, the Indiana Department of Child Services (“DCS”) filed

      requests to file petitions (“CHINS Petitions”) alleging that each of the Children

      were CHINS, to which the CHINS Petitions were attached. That same day, the

      court granted DCS’s motions, and the CHINS Petitions were filed. DCS alleged in

      the CHINS Petitions that it received a report on December 28, 2013, that the

      Children were the victims of neglect, that the report stated that Father J.H. grabbed

      and squeezed Mother’s hand, possibly breaking her hand, that Father J.H. stated

      he did this because Mother was using heroin in front of C.H., that Mother and

      Father J.H. were intoxicated, and that police found two unused syringes in the

      home. The CHINS Petitions further alleged that, during her investigation, FCM

      Mikesell learned that Father J.H. had been arrested and charged with domestic

      battery as a class C felony, that Mother had been taken to the hospital, and that

      Mother has a history of drug abuse and has a current addiction to heroin.


[4]   On January 22, 2014, a family team meeting was held at which Mother, Father

      J.H., and ongoing DCS family case manager Terrian Brady (“FCM Brady”) were

      present. On March 17, 2014, the court held a fact-finding hearing on the CHINS

      Petitions at which the court heard testimony from Deputy McClaine, FCM

      Mikesell, and FCM Brady, and the court took the matter under advisement.


[5]   On May 15, 2014, the trial court entered an order adjudicating the Children to be

      CHINS which included fifty-three findings of fact. The court found that police had


         Court of Appeals of Indiana | Memorandum Decision 06A01-1408-JC-339 | March 30, 2015   Page 3 of 15
      been called to the home of Mother, Father J.H., and the Children in response to a

      report of domestic violence; that Father J.H. answered the door and acknowledged

      the domestic disturbance; that Father J.H. informed Deputy McClaine he had

      walked into the six-year-old child’s room where Mother was using heroin, that he

      had “tried to grab it from her and when doing so got her hand,” and that Mother

      assaulted him; and that the Children were present in the home during the

      altercation and the six-year-old child was in the same bedroom as the adults.

      Appellant’s Appendix at 50.


[6]   The court also found that an unused needle was found at the foot of the bed in the

      room where the incident between Mother and Father J.H. occurred, that Mother

      admitted to Deputy McClaine that she brought the needle into the home, and that

      a second unused needle was found in Mother’s coat in another bedroom. The

      court found that Deputy McClaine observed that Mother’s eyes were bloodshot,

      her speech was slurred, her balance was impaired, and her hand was red and

      swollen; and he observed that Father J.H.’s speech was slurred, his balance was

      impaired, and he continued to drink while police were at the home. The court

      noted that there were beer cans in the six year old child’s room and around the

      house, that law enforcement placed the Children next door at the home of the

      parents of Father J.H, and that on December 29, 2013, DCS received a report that

      Mother left the hospital against medical advice.


[7]   The court further found that FCM Mikesell initiated an investigation on December

      29, 2013, and, at the time of the interview, found the physical condition of the

      Children’s home satisfactory with food in the household. The court found that

         Court of Appeals of Indiana | Memorandum Decision 06A01-1408-JC-339 | March 30, 2015   Page 4 of 15
      Mother admitted she has a heroin addiction and also used marijuana and took

      painkillers and that she stated that she was unable to afford in-patient treatment as

      she has no insurance and could not qualify for Medicaid. The court found in

      Finding 32 that, when FCM Mikesell met the Children, they were appropriately

      dressed, and that she established that their basic health and medical needs were

      being met.


[8]   Additionally, the court found that Father J.H. admitted to drinking five or six beers

      at the time of the incident and that he submitted to a drug screen and admitted it

      might be positive for marijuana as he had smoked with his buddies at work. The

      court found that the Children were currently placed with the parents of Father J.H.

      and that Mother and Father J.H. were exercising daily visitation supervised by

      J.H.’s parents.


[9]   In Finding 44, the court found that at the point of the family team meeting on

      January 22, 2014, Mother had not pursued a referral made to Harbor Lights or any

      in-patient drug treatment as she had requested of FCM Mikesell. In Finding 45,

      the court found that Mother again requested assistance from DCS and that DCS

      made a referral for Mother to Aspire. In Finding 46, the court found that, as of the

      date of fact finding, Mother was attending Aspire through the DCS referral for

      substance abuse counseling and individual and group therapy and that DCS was

      paying for this service. The court further found that Mother was attending New

      Life Recovery, which was not a DCS referral, that Father J.H. requested no

      services, and that FCM Brady recommends Father J.H. complete the program

      Fatherhood Engagement.

         Court of Appeals of Indiana | Memorandum Decision 06A01-1408-JC-339 | March 30, 2015   Page 5 of 15
[10] The   court further found that Mother was charged with unlawful possession of a

    syringe, a class D felony, on February 11, 2014, and that, at the time of fact

    finding, Father J.H.’s domestic battery charges remained pending jury trial. The

    court also found that DCS referred the Children to have assessments at Aspire and

    that the assessments recommended home-based counseling for the Children to

    address witnessing domestic violence and the separation from their parents.


[11] In   its conclusions, the court determined that DCS proved by a preponderance of

    the evidence that the Children were CHINS in that their physical or mental

    condition was seriously impaired or endangered as a result of the inability, refusal

    or neglect of their parent, guardian or custodian to provide them with necessary

    supervision, and that they need care, treatment, or rehabilitation that is unlikely to

    be provided or accepted without the coercive intervention of the court. The court

    concluded that the Children are CHINS in part because on December 28, 2013,

    they were in the care of Mother and Father J.H. who were both intoxicated and

    involved in a domestic violence incident in front of the Children; Mother has an

    admitted heroin addiction; Father J.H., believing he was witnessing Mother’s use

    of heroin, attempted to stop her with inappropriate violence, and the results were

    Mother being transported to the emergency room and Father J.H.’s arrest; and that

    subsequently both Mother and Father J.H. admitted to using illegal drugs. The

    court also concluded that the coercive intervention of the court is necessary

    because Mother admitted to a heroin addiction and requested assistance in

    obtaining in-patient treatment as she could not afford it on her own; DCS provided

    Mother with a referral for inpatient services but she did not follow through on that


          Court of Appeals of Indiana | Memorandum Decision 06A01-1408-JC-339 | March 30, 2015   Page 6 of 15
   referral or any in-patient treatment; Father J.H. was arrested for domestic battery

   on Mother in front of the Children and thereafter admitted to marijuana use; DCS

   was unaware of any services Father J.H. was involved in, or if the issue of

   domestic violence had been addressed; and that neither Mother nor Father J.H.

   had provided a plan to arrange for services for the Children to address the domestic

   violence they witnessed. The court entered judgment that the Children were

   CHINS.


[12] Following   a dispositional hearing, the court entered dispositional orders on July

   25, 2014 for the Children which granted wardship to DCS and ordered that the

   Children continue to be placed with the parents of Father J.H. and receive home-

   based counseling and visitation with Mother and Father J.H. The dispositional

   order for D.P. also provided that Father J.H. would participate in a program called

   Fatherhood Engagement, and the dispositional order for C.H. provided that C.H.’s

   father was to establish paternity and ordered that a body attachment issue against

   him.


[13] Mother   filed a motion to correct error and argued in part that there was no

   evidence to show DCS made a referral to Harbor Lights and that the testimony

   was that FCM Mikesell contacted Harbor Lights and left a message. Mother

   further argued in part that the evidence presented was that Mother was already

   involved with Aspire at the team meeting on January 22, 2014, and that FCM

   Brady testified she was not sure how Mother initiated services, that when she

   received the file there was a referral, and that there was no indication that Mother

   requested a referral. Mother also asserted that, at the dispositional hearing, she

      Court of Appeals of Indiana | Memorandum Decision 06A01-1408-JC-339 | March 30, 2015   Page 7 of 15
   had requested that any requirements pertaining to C.H.’s father be removed from

   the dispositional order.


[14] On   July 31, 2014, the trial court entered an order on Mother’s motion to correct

   error and amended Findings 44 through 46 of the May 15, 2014 order.

   Specifically, the court amended Finding 44 to state that, at the point of the family

   team meeting, Mother had not pursued the Harbor Lights referral and that Mother

   was attending Aspire on an out-patient basis. The court also amended Finding 45

   to state that Mother again requested assistance from DCS during the family team

   meeting, and Finding 46 to state that, as of the date of the fact finding, Mother was

   attending Aspire for substance abuse counseling and individual and group therapy

   and that DCS was paying for this service. The court found no error in C.H.’s

   dispositional order regarding C.H.’s father.


                                                      Discussion

[15] The   issue is whether sufficient evidence supports the trial court’s determination

   that the Children were CHINS. When we review the sufficiency of evidence, we

   consider only the evidence and reasonable inferences therefrom that are most

   favorable to the judgment. In re A.H., 913 N.E.2d 303, 305 (Ind. Ct. App. 2009).

   We neither reweigh the evidence nor reassess the credibility of the witnesses. Id.

   DCS was required to prove by a preponderance of the evidence that the Children

   were CHINS. See id. When a court’s orders contain specific findings of fact and

   conclusions of law, we engage in a two-tiered review. Id. First, we determine

   whether the evidence supports the findings. Id. Then, we determine whether the

   findings support the judgment. Id. We reverse the trial court’s judgment only if it
          Court of Appeals of Indiana | Memorandum Decision 06A01-1408-JC-339 | March 30, 2015   Page 8 of 15
   is clearly erroneous. Id. A judgment is clearly erroneous if it is unsupported by the

   findings and conclusions. Id. When deciding whether the findings are clearly

   erroneous, we consider only the evidence and reasonable inferences therefrom that

   support the judgment. Id.


[16] Mother   contends that the court’s findings do not support the judgment that the

   Children’s physical or mental conditions were seriously impaired or endangered as

   a result of inability, refusal, or neglect of the parents. She argues the Children were

   well-fed and well-clothed, their physical needs were being met, they were receiving

   counseling regarding their witnessing domestic violence and their separation

   issues, and there is no evidence their parents were not cooperating with this course

   of action. In support, Mother points to the testimony of FCM Brady that to the

   best of his knowledge the Children attend school regularly and are doing

   appropriately in school, that D.P. has braces and sees an orthodontist frequently

   and wears glasses and sees an ophthalmologist, and that C.H. goes to the dentist.

   Mother points to Finding 23 of the court’s order that, at the time of her interview,

   FCM Mikesell found the physical condition of the Children’s home satisfactory,

   with food in the household; notes that the interview occurred on December 29,

   2013, one day after the call to police; and observes that Finding 32 of the court’s

   order provided that, when FCM Mikesell met the Children, they were

   appropriately dressed and that he established that their basic health and medical

   needs were being met.


[17] Mother   further contends that the evidence does not support the conclusion that the

   coercive intervention of the court is necessary to compel the needs of the Children

      Court of Appeals of Indiana | Memorandum Decision 06A01-1408-JC-339 | March 30, 2015   Page 9 of 15
   being met. She points to the evidence that she was attending New Life Recovery

   on her own and that DCS did not facilitate in her attending those meetings; that,

   although she initially discussed in-patient therapy, other than a call to Harbor

   Lights, there was no direct assistance or referral from DCS to initiate the in-patient

   treatment; that she ultimately chose out-patient treatment at Aspire as an

   alternative; and that the July 25, 2014 dispositional decree did not specifically

   require her to go in-patient for her drug treatment. She contends that the evidence

   is insufficient to prove she was refusing to participate in treatment absent the

   coercive intervention of the court, and that she was not only attending Aspire, but

   was voluntarily attending New Life Recovery, and that none of the State’s actions

   compelled her attendance.


[18] DCS   maintains that the evidence supports the trial court’s conclusion that the

   Children were CHINS and notes that Mother does not specifically challenge any of

   the court’s factual findings, that the court’s unchallenged findings support its

   conclusions and judgment, and that therefore the court’s order adjudicating the

   Children as CHINS is not clearly erroneous. DCS asserts that Mother’s arguments

   are a request for this court to reweigh the evidence and that the court did not err in

   concluding that the Children had a CHINS condition based on the domestic

   violence which directly resulted from Mother’s untreated substance addictions.

   DCS argues that the Children were not removed based on concerns that they were

   not receiving food, clothing, shelter or medical care, and that, rather, the Children

   were removed after Mother and Father J.H. engaged in an altercation that resulted

   because Father J.H. intervened when he believed Mother was trying to use heroin.


      Court of Appeals of Indiana | Memorandum Decision 06A01-1408-JC-339 | March 30, 2015   Page 10 of 15
   DCS notes that Mother admitted she used heroin, valium, and marijuana the day

   before the altercation and took a pain pill the day of the altercation, and that she

   admitted she needed assistance in addressing her addiction and expressed her belief

   that in-patient treatment would be her best option but that she did not have the

   means to obtain the help she needed. DCS argues that domestic violence was a

   very real issue in this case and that Mother admitted her drug use was causing

   Father J.H. and her to fight.


[19] DCS    further contends that the court’s coercive intervention was necessary, noting

   that FCM Mikesell contacted Harbor Lights and left a message, left it up to Mother

   to follow up the next day to see if the facility had any openings, and Mother did

   not do so; that Mother again requested assistance at the team meeting; and that,

   although Mother had started attending meetings at New Life Recovery, FCM

   Brady was unfamiliar with the program and thus it was unclear whether such

   treatment would properly address her needs. DCS maintains that, without the

   court’s intervention, the Children will be placed at additional risk of repeated

   trauma and removals.


[20] Ind.   Code § 31-34-1-1 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:

       Court of Appeals of Indiana | Memorandum Decision 06A01-1408-JC-339 | March 30, 2015   Page 11 of 15
                                (A) the child is not receiving; and
                                (B) is unlikely to be provided or accepted without the
                                coercive intervention of the court.


   The court need not wait until a tragedy occurs before intervening; parental action

   or inaction is sufficient to adjudicate a child as a CHINS. In re A.H., 913 N.E.2d at

   306. The purpose of a CHINS adjudication is to protect the subject child, not to

   punish the child’s parents. Id.


[21] We   note that Mother appears to limit her argument to whether the findings of the

   trial court support the court’s judgment and does not assert that the court’s findings

   were not based upon the evidence presented at the fact-finding hearing. Also, to

   the extent Mother emphasizes certain findings of the trial court, we will not

   reweigh the evidence and will consider only the evidence and reasonable inferences

   most favorable to the judgment. See In re A.H., 913 N.E.2d at 305.


[22] With   respect to the trial court’s conclusion that the Children’s physical or mental

   condition is seriously impaired or seriously endangered as a result of the actions or

   inactions of Mother and Father J.H., the court found that Mother and Father J.H.

   were both intoxicated and involved in a domestic violence incident in front of the

   Children, that Mother has an admitted heroin addiction, and that as a result of the

   incident Mother was transported to the emergency room and Father J.H. was

   arrested. In its May 15, 2014 order, the court found that police had been called to

   the home on December 28, 2013 in response to a report of domestic violence, that

   Father J.H. acknowledged the domestic disturbance and reported that he had tried

   to grab heroin from Mother and “when doing so got her hand” and that Mother

       Court of Appeals of Indiana | Memorandum Decision 06A01-1408-JC-339 | March 30, 2015   Page 12 of 15
    assaulted him, and that the Children were present in the home during the

    altercation. Appellant’s Appendix at 50.


[23] The   court found that FCM Mikesell found the physical condition of the Children’s

    home satisfactory with food in the household, the Children were appropriately

    dressed, and their basic health and medical needs were being met. However, we

    decline to place more importance than the trial court did on these findings, or on

    the other testimony to which Mother refers regarding the Children’s school

    performance or eye or dental care, in relation to the court’s other findings related

    to the domestic altercation between Mother and Father J.H. and Mother’s drug

    addiction, or to otherwise reweigh the evidence.


[24] Based    upon the record, we cannot say that the findings of the trial court do not

    support the conclusion that the Children’s physical or mental condition is seriously

    impaired or seriously endangered as a result of the inability, refusal, or neglect of

    Mother and Father J.H. to provide them with necessary supervision.


[25] In   addition, to the extent Mother challenges the court’s conclusion that the

    Children need care that is unlikely to be provided or accepted without the coercive

    intervention of the court, the court found in part that coercive intervention is

    necessary because Mother admitted to a heroin addiction and requested assistance

    in obtaining in-patient treatment, that she did not follow through with any in-

    patient treatment, that Father J.H. was arrested for domestic battery and admitted

    to marijuana use, and that DCS is unaware if the issue of domestic violence has

    been addressed.


          Court of Appeals of Indiana | Memorandum Decision 06A01-1408-JC-339 | March 30, 2015   Page 13 of 15
[26] While   Mother argues that she was attending New Life Recovery on her own and

   ultimately chose out-patient treatment, and thus that the evidence is insufficient to

   show she was refusing treatment, we note the court’s findings reveal that Mother

   has an admitted heroin addiction, that she used heroin, valium, and marijuana the

   day before the December 28, 2013 altercation, and that two unused needles were

   found in the home. We further note the court’s findings that Mother “wanted in-

   patient treatment” and stated she was unable to afford in-patient treatment but was

   willing to do it if DCS assisted her, that FCM Brady was not familiar with New

   Life Recovery, that at the point of the family team meeting Mother had not

   pursued the Harbor Lights referral, and that Mother again requested assistance

   from DCS during the family team meeting. Id. at 52.


[27] Based   upon the record, we cannot say the findings of the trial court do not support

   the conclusion that the Children need care, treatment, or rehabilitation that is

   unlikely to be provided or accepted without the coercive intervention of the court. 3

   We conclude that the trial court’s findings of fact, conclusions, and judgment are

   not clearly erroneous.




       3
        In support of her argument, Mother cites to the Indiana Supreme Court’s opinion in In re S.D., 2
       N.E.3d 1283 (Ind. 2014), reh’g denied. In re S.D. involved a child who needed particular medical care,
       and the Court found the fact that the single mother of four other children attempted but failed to
       complete one step of a home-care simulation did not support an inference that the mother was likely to
       need the court’s coercive intervention to finish the home-care simulation. 2 N.E.3d at 1286-1290.
       These facts are factually distinguishable from those in this case.

       Court of Appeals of Indiana | Memorandum Decision 06A01-1408-JC-339 | March 30, 2015           Page 14 of 15
                                                   Conclusion

[28] For   the foregoing reasons, we affirm the trial court’s determination that the

   Children are CHINS.


[29] Affirmed.


[30] Bailey,   J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 06A01-1408-JC-339 | March 30, 2015   Page 15 of 15
