MEMORANDUM DECISION
                                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            Apr 06 2018, 5:32 am

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


ATTORNEY FOR                                              ATTORNEYS FOR APPELLEE
APPELLANT/FATHER                                          Curtis T. Hill, Jr.
Michael D. Ghilardi                                       Attorney General of Indiana
Law Office of Michael D. Ghilardi                         David E. Corey
Fort Wayne, Indiana                                       Deputy Attorney General
ATTORNEY FOR                                              Indianapolis, Indiana
APPELLANT/MOTHER
Gregory L. Fumarolo
Fort Wayne, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of: A.K., A.P.,                             April 6, 2018
G.G., and A.G. (Minor Children                            Court of Appeals Case No.
in Need of Services);                                     02A04-1708-JC-1942
H.K. (Mother) and T.G.                                    Appeal from the Allen Superior
(Father),                                                 Court
                                                          The Honorable Sherry A. Hartzler,
Appellants-Respondents,
                                                          Magistrate
        v.                                                The Honorable Charles F. Pratt,
                                                          Judge
The Indiana Department of                                 Trial Court Cause Nos.
Child Services,                                           02D08-1702-JC-70
                                                          02D08-1702-JC-71


Court of Appeals of Indiana | Memorandum Decision 02A04-1708-JC-1942 | April 6, 2018             Page 1 of 11
      Appellee-Petitioner.
                                                                02D08-1702-JC-72
                                                                02D08-1702-JC-73




      Pyle, Judge.


                                        Statement of the Case
[1]   H.K. (“Mother”) and T.G. (“Father”) (collectively “Parents”) appeal the trial

      court’s order adjudicating A.K., A.P., G.G., and A.G. to be Children in Need

      of Services (“CHINS”). Parents specifically argue that there is insufficient

      evidence to support the adjudication. Concluding that the Indiana Department

      of Child Services (“DCS”) presented sufficient evidence to support the CHINS

      adjudication, we affirm the trial court.


[2]   We affirm.


                                                      Issue
              Whether there is sufficient evidence to support the CHINS
              adjudication.




      Court of Appeals of Indiana | Memorandum Decision 02A04-1708-JC-1942 | April 6, 2018   Page 2 of 11
                                                           Facts
[3]   Mother is the parent of A.K. (“A.K.”), who was born in August 2012; A.P.

      (“A.P.”), who was born in January 2014; G.G. (“G.G.”), who was born in

      September 2015; and A.G. (“A.G.”) (collectively “the children”), who was born

      in October 2016. Father is the parent of G.G. and A.G.1 When A.G. was born,

      his meconium tested positive for THC. Mother and Father also tested positive

      for THC, and Mother admitted that she had smoked marijuana while she was

      pregnant. DCS opened an investigation but did not remove the children from

      the home.


[4]   Following a February 2017 initial hearing, the trial court found probable cause

      to believe that the children were CHINS and authorized DCS to file a CHINS

      petition. The trial court also ordered Mother and Father to submit to drug and

      alcohol assessments at Bowen Center, follow all assessment recommendations,

      enroll in home-based services, submit to random urine drug tests, and refrain

      from the use of illegal drugs. DCS filed a CHINS petition one week later.


[5]   The trial court held a hearing on the CHINS petition in April 2017. Testimony

      at the hearing revealed that twenty-one-year-old Mother had begun smoking

      marijuana when she was twenty years old and had smoked marijuana once

      every two weeks at the end of her pregnancy. According to Mother, she “had a

      lot of stress at the time [and] did not have insurance and did not have any kind




      1
          The fathers of A.K. and A.P. are not parties to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 02A04-1708-JC-1942 | April 6, 2018   Page 3 of 11
      of relief to be able to deal with that from a doctor. [She] couldn’t pay out of

      pocket at that time.” (Tr. 10). Mother continued to smoke marijuana following

      A.G.’s birth and even after DCS became involved in the case. At the hearing,

      Mother claimed that she had last used marijuana in the middle of January 2016.


[6]   Mother further stated that she had been attending weekly “drug sessions” at

      Bowen Center. (Tr. 10). Although DCS was paying for the sessions at the time

      of the hearing, Mother claimed that the family’s insurance “would cover part of

      it and then they also offer payment plans[.]” However, she did not know how

      much the substance abuse sessions would cost if she had to pay for them

      herself, and she had not spoken with her insurance provider to determine how

      much it would cover.


[7]   Mother stated that she “just [didn’t] feel like the intervention of the Court [was]

      needed.” (Tr. 14). Mother explained that she realized that she had made a

      mistake and had previously needed the services to which DCS had referred her.

      She, however, asserted that she now believed that she and Father were “fine on

      [their] own and [they could] do it by [themselves].” (Tr. 14). She told the trial

      court that she would be “upset” if the court adjudicated her children to be

      CHINS because she did not “feel like [her] family need[ed] that.” (Tr. 14). At

      the time of the hearing, Mother was employed as a restaurant assistant manager

      and earned $9.00 per hour.


[8]   Twenty-three-year-old Father testified that he had first used marijuana when he

      was sixteen years old. When he was eighteen years old, he used marijuana


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      three to four times a month. He admitted that it was his idea for Mother to

      smoke marijuana while she was pregnant because both Mother and Father were

      emotional following the death of Father’s grandfather. Father’s last positive

      drug screen was in October 2016. At the time of the hearing, Father was crew

      leader kitchen manager at a restaurant where he earned $7.50 per hour. He had

      medical insurance, and his father paid the cost of the premiums.


[9]   Following the hearing, the trial court issued the following relevant findings and

      conclusions in support of its order adjudicating the children to be CHINS:


                                               Findings of Fact


              A.     Through the testimony of Mother, the Court finds that
              Mother regularly used marijuana prior to her pregnancy since she
              was twenty (20) years old. Mother was twenty-one (21) years of
              age at the time of these proceedings.

              B.    Through the testimony of Mother and Father . . . the
              Court also finds that Mother used marijuana every two weeks
              during her pregnancy at the urging of Father . . . .

              C.     The Court finds that Mother used marijuana up until the
              birth of her child and until January 2017 after the initiation of the
              Department’s investigation.

              D.    The Court finds that until recently, Mother did not
              comprehend the impact her drug use was having on her drug
              exposed infant and her family. Now, Mother claims that she
              comprehends the damage her use of illegal drugs has caused.

              E.    The Court finds that this self-professed acknowledgement
              of harm to her children and family did not occur until after
              Mother started her drug and alcohol services. The Court finds


      Court of Appeals of Indiana | Memorandum Decision 02A04-1708-JC-1942 | April 6, 2018   Page 5 of 11
        that Mother’s drug and alcohol services . . . were not completed
        at the time of trial.

        F.     The Court finds through the testimony of Mother that, but
        for her involvement in services, she would not have taken any
        steps toward recovery.

        G.     Although Mother claims that she can pay for her drug and
        alcohol services, she was in fact not currently paying for any of
        her services; she does not know what the services cost; she has
        not made any inquiries to determine whether insurance can or
        will cover the cost; and she was making a weekly income of
        [$]350.00 with a family of six (6) and two children in diapers.

        H.      With respect to Father . . . the Court finds that he was
        using marijuana to cope with stress prior to and during the
        Department’s investigation after the birth of his drug[-]exposed
        infant.

        I.    The Court finds that Father did not see his drug use as
        problematic until their youngest child tested positive for
        marijuana and the Department of Child Services became
        involved. Even so, Father continued to use marijuana during the
        Department of Child Services[‘] investigation.

        J.     The Court further finds that prior to the Department of
        Child Services[‘] involvement and the provision of services,
        Father was previously employed as a heavy equipment operator
        and was regularly using marijuana against company policy,
        further indicating that Father did not appreciate the risk and
        harm associated with his use of illegal drugs.

        K.    The Court further finds that Father only started his drug
        and alcohol services one month prior to the trial in this matter
        and that services were not completed yet.

        L.     The Court finds that father is employed at minimum wage
        and at approximately 38 hours per week.


Court of Appeals of Indiana | Memorandum Decision 02A04-1708-JC-1942 | April 6, 2018   Page 6 of 11
        M.    The Court takes judicial notice of the Federal Poverty
        Guidelines and finds that in 2017 the poverty guideline for a
        family of six (6) is $32,960.00.

        N.    The Court finds that the . . . family makes approximately
        $33,020 per year which puts them only $60.00 above the federal
        poverty level.

        O.     Considering that neither Mother nor Father are aware of
        what services cost and how same would fit into their budget and
        disposable income, the Court does not take their statements that
        they can afford the services as credible.

        P.    Although Father claims to have insurance provided by his
        Father[,] he has not determined if or how much of the services
        would or could be covered by insurance.

                                 *        *        *       *        *

                                      Conclusions of Law

        A.    The Court concludes that is it undisputed that Mother and
        Father were using illegal drugs and that their infant was born
        drug exposed.

        B.    The Court concludes, through the testimony of Mother
        and Father that their drug use caused their children and family
        harm.

        C.   The Court further concludes that it is undisputed that both
        Mother and Father continued to use illegal drugs even after the
        Department[‘s] involvement.

        D.     The Court also concludes that it is undisputed that the
        services were not completed at the time of the trial in this matter.

        E.     The dispute to be resolved by this Court is whether the
        parents lack the ability to attend to their treatment and thus the
        care and treatment of the children.


Court of Appeals of Indiana | Memorandum Decision 02A04-1708-JC-1942 | April 6, 2018   Page 7 of 11
                                        *        *        *       *        *

               G.      The court concludes that Mother and Father lack the
               ability to independently resolve their drug use. The Court
               concludes that but for the intervention of this Court and the
               provision of drug and alcohol services, Mother and Father would
               have [not] come to the conclusion that their drug use was
               harming their family. The Court further concludes that but for
               the intervention of the Court and the provision of drug and
               alcohol services, Mother and Father would not have begun their
               recovery. The Court further concludes that the family’s
               condition during the trial was that they had not completed their
               drug and alcohol services and would not have the ability to
               obtain these services on their own accord without the
               involvement of the Department of Child Services.

               H.     Therefore the court concludes that the children [A.K.],
               [A.P.], [G.G.] and [A.G.] are [CHINS] under Ind.Code [§] 31-
               34-1-1 . . . .

       (App. 64-66). Parents appeal the trial court’s adjudication that their children

       are CHINS.


                                                     Decision
[10]   Parents argue that there is insufficient evidence to support the CHINS

       adjudication. When determining whether there is sufficient evidence to support

       a CHINS determination, we consider only the evidence most favorable to the

       judgment and the reasonable inferences to be drawn therefrom. In re S.D., 2

       N.E.3d 1283, 1287 (Ind. 2014). This Court will not reweigh the evidence or

       reassess the credibility of the witnesses. Id. at 1286. Where, as here, a juvenile

       court’s order contains specific findings of fact and conclusions of law, we

       engage in a two-tiered review. In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App.

       Court of Appeals of Indiana | Memorandum Decision 02A04-1708-JC-1942 | April 6, 2018   Page 8 of 11
       2014). First, we determine whether the evidence supports the findings, and

       then, we determine whether the findings support the judgment. Id. Findings

       are clearly erroneous when there are no facts or inferences to be drawn

       therefrom that support them. Id. A judgment is clearly erroneous if the

       findings do not support the juvenile court’s conclusions or the conclusions do

       not support the resulting judgment. Id. We further note that, as a general rule,

       appellate courts grant latitude and deference to trial courts in family law

       matters. Matter of D.P., 72 N.E.3d 976, 980 (Ind. Ct. App. 2017). “This

       deference recognizes a trial court’s unique ability to see the witnesses, observe

       their demeanor, and scrutinize their testimony, as opposed to this court’s only

       being able to review a cold transcript of the record.” Id.


[11]   A CHINS proceeding is a civil action. In re N.E., 919 N.E.2d 102, 105 (Ind.

       2010). Therefore, DCS must prove by a preponderance of the evidence that the

       child is a CHINS as defined by the juvenile code. Id. INDIANA CODE § 31-34-

       1-1 provides that a child is a CHINS 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 the necessary food, clothing, shelter, medical care,
               education, or supervision; and

               (2) the child needs care, treatment, or rehabilitation that:

                        (A) the child is not receiving; and



       Court of Appeals of Indiana | Memorandum Decision 02A04-1708-JC-1942 | April 6, 2018   Page 9 of 11
                        (B) is unlikely to be provided or accepted without the
                        coercive intervention of the court.

[12]   A CHINS adjudication focuses on the child’s condition rather than the parent’s

       culpability. In re N.E., 919 N.E.2d at 105. The purpose of a CHINS

       adjudication is to provide proper services for the benefit of the child, not to

       punish the parent. Id. at 106. A CHINS adjudication in no way challenges the

       general competency of parents to continue relationships with their children. Id.

       at 105.


[13]   Here, Parents argue that there is insufficient evidence to support the CHINS

       adjudication. They specifically contend that DCS failed to prove by a

       preponderance of the evidence that the coercive intervention of the court was

       necessary. The gravamen of their argument is that the coercive intervention of

       the court was not necessary because, at the time of the hearing, they had

       “remedied their substance abuse issues and could obtain services on their own.”

       (DCS’ Br. at 18).


[14]   While we commend Parents for addressing the concerns that led DCS to file a

       CHINS petition in this case, their argument that they had adequately remedied

       their drug use essentially asks that we reweigh the evidence. This we may not

       do. See In re S.D., 2 N.E.3d at 1287. Further, our review of the evidence reveals

       that Parents were both using marijuana while Mother was pregnant. Mother

       explained that she was using marijuana because she had a lot of stress and did

       not have the money to visit a doctor. Father also encouraged Mother to use

       marijuana because they were both emotional following the death of Father’s

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       grandfather. Mother continued to use drugs after A.G. was born and DCS had

       become involved in the case. Mother admitted that at that time, she had not

       realized that she needed the services to which DCS had referred her. By the

       time of the hearing three months later, Mother had realized that she and Father

       had needed these services, which they had not yet completed. Mother also

       believed that she and Father could, at that point, attend and pay for their

       services on their own. However, she had no idea how much the services cost or

       how much she would have to pay for them. Given our deferential standard of

       review, this evidence and the reasonable inferences that flow therefrom support

       the trial court’s determination that Parents had not fully addressed their drug

       use and would not remedy the issue without the coercive intervention of the

       trial court. There is sufficient evidence to support the CHINS adjudication.


[15]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




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