MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                       Oct 24 2017, 10:54 am
regarded as precedent or cited before any                                        CLERK
court except for the purpose of establishing                                 Indiana Supreme Court
                                                                                Court of Appeals
the defense of res judicata, collateral                                           and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Anna Onaitis Holden                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Abigail R. Recker
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of Al.W. and                               October 24, 2017
As.W. (Minor Children),                                  Court of Appeals Case No.
Children in Need of Services,                            49A02-1705-JC-1078
        and                                              Appeal from the Marion Superior
                                                         Court
J.W. (Mother),
                                                         The Honorable Marilyn A.
Appellant-Respondent,                                    Moores, Judge

        v.                                               The Honorable Diana J. Burleson,
                                                         Magistrate
                                                         Trial Court Cause Nos.
The Indiana Department of
                                                         49D09-1611-JC-4321
Child Services,                                          49D09-1611-JC-4322
Appellee-Petitioner.



Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JC-1078 | October 24, 2017              Page 1 of 21
                                               Case Summary
[1]   Following fact-finding and dispositional hearings and orders, J.W. (“Mother”)

      appeals1 the trial court’s order adjudicating her children, Al.W. and As.W.

      (collectively, “the children”), to be Children in Need of Services (“CHINS”).

      She raises three issues on appeal, which we consolidate and restate as the

      following issue: whether there was sufficient evidence to support the

      determination that the children are CHINS. We hold that there was not;

      therefore, we reverse.



                                Facts and Procedural History
[2]   Mother and Father (collectively, “the parents”) were married and had two

      children, Al.W., born December 22, 2008, and As.W., born August 19, 2010.

      The parents divorced at some point, and Mother was awarded legal custody of

      the children.


[3]   On November 15, 2016, the Indiana Department of Child Services (“DCS”)

      received a report alleging that Father was using and selling methamphetamine

      in the family’s home, and that child Al.W. was having behavioral issues in

      school, but the school was unable to reach his parents. Marion County DCS

      Family Case Manager (“FCM”) Sarah Stuckey (“FCM Stuckey”) conducted an

      assessment of the allegations. Mother informed FCM Stuckey that Mother had




      1
          Je.W. (“Father”) does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JC-1078 | October 24, 2017   Page 2 of 21
      turned off her cellular phone while at the dentist’s office and that is why the

      school was initially unable to reach her regarding Al.W.’s behavior that day.

      Appellant’s App. at 38. Mother stated that she had called the school that day,

      as soon as she had been able to turn her cellular phone back on and retrieve the

      school’s message. Id. Mother also stated that she and the children were living

      in the Indianapolis home of Kimberly Kepley (“Kepley”), the children’s

      paternal grandmother, so that Mother could care for Kepley, who was ill.


[4]   Both Mother and Father informed FCM Stuckey that Father did not live in

      Kepley’s house with Mother and the children. FCM Stuckey visited Mother’s

      home and found it appropriate. Mother stated that she had used drugs in the

      past, but had not used drugs in over one year. Mother agreed to take a drug

      screen, and the results were negative for drug use. Mother told FCM Stuckey

      that Mother suspected Father still used drugs and that, for that reason, Mother

      did not allow Father to visit with the children unsupervised. Mother stated that

      she had mental health diagnoses of Bipolar Disorder and Post-Traumatic Stress

      Disorder, but was not seeking treatment at that time. Mother also stated that

      Al.W. had been diagnosed with depression and Attention Deficit Hyperactivity

      Disorder (“ADHD”), for which he took medication and saw a therapist.

      Mother told FCM Stuckey that Al.W. was no longer receiving school-based

      services for his mental health issues because she “was told the services were

      overlapping” with the services he received outside of school. Id. at 38.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JC-1078 | October 24, 2017   Page 3 of 21
[5]   Father told FCM Stuckey that he no longer used drugs. However, Father

      refused to take a drug screen because he said the results would be positive for

      marijuana and methamphetamine.


[6]   On November 21, Mother informed FCM Stuckey that Mother and the

      children had to leave Kepley’s home because Kepley had been hospitalized and

      was not expected to recover. Mother informed FCM Stuckey that Mother and

      the children were moving in with Brenda Hoskins (“Hoskins”), the children’s

      maternal grandmother, in Anderson, Indiana.


[7]   On November 23, DCS filed a petition alleging the children were CHINS

      pursuant to Indiana Code Section 31-34-1-1 based upon allegations that:


              a. [Mother and Father], parents of [Al.W.] and [As.W.], have
              failed to provide the children with a safe, stable, and appropriate
              living environment free from substance abuse.


              b. [Father] has been using illegal substances that seriously hinder
              his ability to care for the children.


              c. [Father] smokes marijuana and uses methamphetamine.


              d. In addition, [Mother] struggles with untreated mental health
              issues.


              e. [Mother] is diagnosed with bipolar and post traumatic stress
              disorder (PTSD) but is not currently receiving treatment.


              f. [Mother] is a recovering heroin addict but has reportedly been
              clean for over a year.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JC-1078 | October 24, 2017   Page 4 of 21
              g. [Al.W.] has been exhibiting behavioral and/or mental health
              issues the parents have been unable to adequately address.


              h. [Mother] also lacks stable housing.


              i. The family has a history with the Department of Child Services
              (DCS), and services were previously offered through a Children
              In Need of Services (CHINS) action.


              j. Due to the foregoing reasons, the coercive intervention of the
              Court is required to ensure the children’s safety and well being.


      Appellant’s App. at 35. The petition noted that the children had not been

      removed from Mother’s home.


[8]   On November 25, DCS filed the report of FCM Stuckey’s preliminary

      investigation which summarized her assessement findings. She noted that she

      had gone to Mother’s home at Kepler’s house and found it was appropriate,

      and would be visiting Mother’s home at Hoskin’s house to ensure the same. Id.

      at 38. She also noted that DCS had previous involvement with Mother and

      Father and the children due to the parents’ past drug use. She reported that

      Al.W. “is currently prescribed Prozac and Zyprexa along with seeing a therapist

      to address his mental health needs.” Id. at 43. She also stated:


              [Mother] is aware of [Al.W.’s] mental health needs and is willing
              to accept DCS help to obtain more services for [Al.W.].
              [Mother] has been up front with FCM Stuckey about her past
              drug use and is committed to remaining substance free now and
              in the future for the safety and well-being of her children.
              [Mother] is committed to continuing to ensure the safety of her

      Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JC-1078 | October 24, 2017   Page 5 of 21
               children, which included signing a safety plan stating she would
               ensure the children’s basic needs are met, the home is free from
               drugs, the children attend school and all doctors’ appointments,
               and[,] per her decision[, Father] would not be around the
               children unsupervised.


       Id. at 43. The report recommended out of home placement for the children “if

       [Mother] cannot maintain [Al.W.’s] mental health treatment or comply with

       services.” Id. DCS also filed a notice of placement change, noting that,

       effective November 23, the children were living with Mother at Hoskins’ home

       in Anderson.


[9]    On November 28, the trial court issued a detention order, following a hearing,

       in which it found that: the parents denied the CHINS allegations; removal of

       the children from the home was not necessary to protect them; the children

       should be under temporary supervision of DCS; and, the permanency plan was

       reunification with the parents. The court granted DCS wardship of the children

       and placed them with Mother who was living at Hoskin’s house. The court

       ordered that Mother participate in home-based therapy and case management,

       and it ordered supervised visitation for Father. On December 5, the court held

       a pretrial hearing and ordered that the children’s placement remain the same.


[10]   On January 10, 2017, DCS filed a motion for another detention hearing on the

       grounds that, on or about December 19, Mother, without notifying DCS, had

       moved the children to the home of Robin Cook (“Cook”), the children’s

       maternal grandfather, and DCS had “no knowledge as to Mother’s

       whereabouts at [that] time.” Id. at 74. On January 11, following a detention

       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JC-1078 | October 24, 2017   Page 6 of 21
       hearing, the trial court issued a detention order in which it noted that DCS

       requested the children be placed with Cook, and it ordered the children

       removed from Mother’s care and placed with Cook. Id. at 78, 80.


[11]   On March 6, the trial court conducted a fact-finding hearing at which FCM

       Stuckey testified regarding the initial CHINS allegations and assessment. She

       testified that the CHINS allegations were that Father used and sold drugs in the

       family home and that Al.W. had been suspended from school but the school

       could not reach his parents. She testified she found, at the time of her

       assessment, that Father was not living in the home with the children and

       Mother; Mother’s home was clean and appropriate; she had no evidence that

       Father had ever used drugs in front of the children; Mother had told her

       Father’s visits with the children were supervised; and Al.W. was in therapy.

       She stated she was “concerned” that Al.W. was not receiving “all the possible

       services he could be receiving.” Tr. at 47. However, FCM Stuckey completed a

       “311” assessment report in which she found that the CHINS allegations were

       substantiated for Father and unsubstantiated for Mother. Id. at 40-41. FCM

       Stuckey was no longer the family’s FCM at the time of the fact-finding hearing,

       and she stated she could “not speak to the state of [Mother’s] home” at the time

       of that hearing. Id. at 46.


[12]   Madison County FCM Tyler Hammons (“FCM Hammons”) testified that he

       was “assigned to an assessment” of the children’s case in December 2016 based

       on allegations that the children “had been dropped off with their grandfather”

       in Anderson, and concerns “that the parents were not caring for the kids at that

       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JC-1078 | October 24, 2017   Page 7 of 21
       time,” and “concerns of ongoing drug use with both parents.” Id. at 50.

       However, after conducting a home study of Cook’s home, FCM Hammons had

       no safety concerns and found the December 2016 allegations were

       unsubstantiated. His office took no further action as to the children because

       there was an on-going CHINS case in Marion County.


[13]   Marion County FCM Samantha Lewedag (“FCM Lewedag”) testified that she

       was assigned as the FCM for the children’s on-going CHINS case on January 6,

       2017. The children were still living with Cook in Anderson. FCM Lewedag

       stated that Mother informed her on or around January 18 that Mother did not

       have a residence for herself and was looking into shelters. On approximately

       February 27, Mother informed FCM Lewedag that Mother was living with her

       brother’s grandmother in Anderson. FCM Lewedag stated that DCS had not

       been able to assess Mother’s new residence by the time of the hearing, but that

       Mother had told her DCS could assess the home that coming Friday, i.e.,

       March 10, when the owner of the home had returned to town.


[14]   FCM Lewedag was aware that Mother had an intake appointment with a

       mental health service provider, but that she had not received any other services

       there yet. FCM Lewedag was aware that Al.W. was on medications for his

       mental health problems and had a referral for an evaluation and therapy at

       Aspire, a mental health services provider. FCW Lewedag was not aware of

       what mental health services, if any, Mother or Al.W. had received before she

       took over the CHINS case, and she had not sought documentation from their

       prior service providers or Al.W.’s school. FCW Lewedag testified that she

       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JC-1078 | October 24, 2017   Page 8 of 21
       believed the children required court intervention because, “to her knowledge,”

       Mother did not “have transportation in order to get [Al.W.] to [mental health

       services] appointments.” Tr. at 71.


[15]   Mother testified that she had been required to move from her mother’s house in

       December 2016 because Hoskins was an alcoholic who had suddenly

       demanded that Mother and the children leave the home. Mother immediately

       took the children to Cook’s, her father’s, home. However, because Cook did

       not have enough room for both Mother and the children, Mother left the

       children with Cook and stayed with a friend. Mother testified she did not have

       stable housing for herself until approximately February 6, when she moved in

       with her brother’s grandmother. Mother testified that her current home was

       appropriate, the children had their own bedroom there, and her brother’s

       grandmother had stated the children were welcome in the home. She testified

       that her brother’s grandmother was out of town until that Friday and did not

       want DCS to come to her home until she could be there. Mother also testified

       that both she and Al.W. had received mental health services in the past and

       were currently receiving such services. And she testified that the children had

       remained in their same school in Anderson during the pendency of the CHINS

       action.


[16]   At the close of evidence, Mother’s and Father’s attorneys each moved for

       judgment on the evidence on the grounds that DCS had failed to prove that the

       children were CHINS. The trial court denied those motions. Following closing

       arguments, the trial court stated:

       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JC-1078 | October 24, 2017   Page 9 of 21
               I am going to find that the children are in need of services for one
               reason, and that is the housing situation. The testimony that I
               heard today even from [Mother] was that she’s living with the
               brother’s grandmother, but she even said that DCS was not
               allowed to come see the house. So even though DCS wanted to
               come see the house[,] or if they should have gone out to see the
               house[,] from what I heard from her testimony was that that was
               not going to be allowed until the grandmother or whoever [it] is
               that that lives there gets home. So there’s been no verification
               that the house is … adequate and so based on that, that small
               little issue however small it may be it’s still housing, it’s still
               mother and father’s ability to provide the children with a home to
               live in. So I will find that they are in need of services. Let’s set it
               out for disposition. In the meantime, I will order DCS to get out
               to see the home.


       Tr. at 87. The trial court also ordered that Mother have unsupervised visitation

       with the children. Id. at 90.


[17]   In its written order on the fact-finding hearing, the trial court stated, in relevant

       part:


               4. On or about November 23, 2016[,] DCS filed a petition
               alleging that the children were in need of services. The children
               were not removed from their mother’s care.


               5. In November 2016 [Mother] was living with her ex mother in
               law, but [Father] was not living there.


               6. [Mother] left that home right before Thanksgiving because her
               ex mother in law was not coming home from the hospital.


               7. [Mother] then stayed at her mother’s home. Living there were
               [Mother], her mom, her brother and sister, and [the children].
       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JC-1078 | October 24, 2017   Page 10 of 21
         8. [Mother] stayed with her mother for a month, and left because
         her mother is an alcoholic.


         9. In December 2016 [Mother] then went to Robin Cook’s, who
         is [Mother’s biological father2]. He agreed to keep the boys but
         she could not stay.


         10. A detention hearing was held on January 11, 2017[,] after
         DCS learned that [Mother had] left the children with Mr. Cook.
         A week after the detention hearing[,] the ongoing FCM, Ms.
         Lewedag, talked to [Mother] who said she was looking into
         shelters and did not have a place to live.


         11. After [Mother] dropped [off] the boys in Mr. Cook’s care, she
         stayed for a night with a friend.


         12. [Mother] got word that her ex mother in law was about to
         pass away, so she stayed at the hospital for 2 nights until her ex
         mother in law passed away.


         13. [Mother] has been living at her brother’s grandmother’s
         [house] for a month. FCM Lewedag learned last Friday that [sic]
         about this living arrangement.


         14. [Mother] has not allowed the FCM to see the house because
         the grandmother is out of town, and won’t be back until Friday,
         after which time the FCM can inspect the home and talk to the
         grandmother. DCS will have to run background checks on
         anyone living in the home.




2
  The trial court mistakenly stated Cook was the children’s biological father; however, the evidence
indicates, and the parties agree, that Cook was Mother’s biological father.

Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JC-1078 | October 24, 2017         Page 11 of 21
               15. The assessment worker spoke to [Father] on November 15,
               2016. He denied using and selling drugs and refused a drug
               screen because he said the FCM was going to take the children.
               He said he would test positive for marijuana and
               methamphetamine.


               16. [Mother] has been unable to provide stable housing for the
               children for the past 3 months; the children need that housing
               and it is unlikely to be available for the children without the
               coercive intervention of the court.


       Appellant’s App. at 94-96. The court ordered that the children remain in their

       current relative placement, i.e., with Cook. Id. at 98.


[18]   On April 3, 2017, the parties convened for a dispositional hearing but agreed to

       continue it. On April 24, trial court held the dispositional hearing at which

       FCM Lewedag, Home-Based Case Manager Ashley Hutchinson

       (“Hutchinson”), and Mother spoke; however, no witnesses were sworn in at

       this proceeding. In its April 24 dispositional order, the trial court found “that it

       is in the best interests of the child[ren] to be continued removed [sic] from the

       home environment and remaining in the home would be contrary to the welfare

       of the child[ren] because: the allegations [were] admitted or found to be true.”

       Id. at 29. The court ordered the children to remain under DCS’s supervision

       and placed them in foster care. Id. at 29-30. The court ordered supervised

       visitation for both parents, home-based case management services for Mother,

       and random drug screens for Father. Id. at 31; Tr. at 114, 116. Mother now

       appeals.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JC-1078 | October 24, 2017   Page 12 of 21
                                  Discussion and Decision
                                         Standard of Review
[19]   The juvenile court adjudicated Al.W. and As.W. to be children in need of

       services pursuant to Indiana Code Section 31-34-1-1, which 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:


               (A) the child is not receiving; and


               (B) is unlikely to be provided or accepted without the coercive
               intervention of the court.


[20]   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 Serv. (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 sua sponte, 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

       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JC-1078 | October 24, 2017   Page 13 of 21
       and, second, whether the findings support the judgment. In the Matter of S.D., 2

       N.E.3d 1283, 1287 (Ind. 2014); Ind. Trial Rule 52(A).


[21]   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.

       (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 Children are CHINS
[22]   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


       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JC-1078 | October 24, 2017   Page 14 of 21
       difficulty in meeting a child’s needs.” Id. (quotation marks and citation

       omitted).


[23]   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,

       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).


[24]   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

       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JC-1078 | October 24, 2017   Page 15 of 21
                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
                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).


[25]   Here, the trial court based its CHINS determination solely on Mother’s

       “housing situation.” Tr. at 87. Specifically, the trial court noted that Mother’s

       home at the time of the fact-finding hearing had not yet been assessed to

       determine if it was adequate and, “based on that … small little issue …

       [regarding] mother and father’s ability to provide the children with a home to

       live in,” it determined that both of the children were CHINS. Id. In its written

       findings, the court found as a fact that Mother “[had] been unable to provide

       stable housing for the children for the past 3 months.” Appellant’s App. at 96.


[26]   The evidence does not support the trial court’s findings regarding Mother’s

       housing. The evidence showed that the children were in safe, appropriate

       housing at the time the CHINS petition was filed, during the pendency of the

       CHINS action, and at the time of the CHINS fact-finding hearing.3 When the




       3
         We note that the trial court took no evidence at the dispositional hearing, as it failed to swear in any of the
       people who spoke at that hearing. To the extent that means that the court failed to conduct a dispositional

       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JC-1078 | October 24, 2017             Page 16 of 21
       CHINS petition was filed on November 23, 2016, Mother and the children

       were living with Hoskins, Mother’s mother, in Anderson. At the November 28

       detention hearing, DCS recommended, and the trial court ordered, that the

       children remain with their Mother at Hoskins’ home, thus indicating the

       placement was appropriate. When the children could no longer stay in

       Hoskins’ home through no fault of Mother, Mother found the children a safe,

       appropriate home to live in with her father, Cook. FCM Hammons did a home

       study of Cook’s home and found that it was safe. And, again, at the fact-

       finding hearing DCS recommended, and the trial court ordered, that the

       children remain in Cook’s home. Thus, the children were in safe, appropriate

       housing during the entire time of this CHINS action, including the time of the

       fact-finding hearing. The court’s findings to the contrary are not supported by

       the evidence.


[27]   The trial court seemed to base its CHINS adjudication entirely on the fact that

       Mother’s home at the time of the fact-finding hearing had not yet been assessed

       to determine its appropriateness. That fact does not support a CHINS finding.

       Regardless of where Mother was living, it is undisputed that the children were

       living in a safe, appropriate home at the time of the fact-finding hearing. The

       fact that Mother struggled to find stable housing for herself, “even endured




       hearing at all—thus, making this appeal untimely—we nevertheless elect to decide the merits of this appeal.
       See In re D.J., 68 N.E.3d at 578-580 (holding the appeal of a CHINS determination is forfeited if brought
       before the court holds a dispositional hearing and enters a dispositional order; however, the reviewing court
       may elect to decide the merits of the forfeited appeal).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JC-1078 | October 24, 2017          Page 17 of 21
       periods of homelessness, does not support the juvenile court’s conclusion that

       the children were endangered, particularly when the children have never been

       without shelter” that was safe and adequate. In re S.K., 57 N.E.3d at 883

       (finding a CHINS determination clearly erroneous where the parents, like

       Mother in the instant case, “took deliberate actions to avoid placing the

       children in the endangering condition of homelessness”); see also, In re S.M., 45

       N.E.3d at 1256.


[28]   Moreover, Mother testified that she had obtained her own safe and appropriate

       housing which DCS could visit and assess within the following week. Thus,

       there was no evidence that Mother was unwilling or unable to find appropriate

       housing so that her children could live with her in the near future. See In the

       Matter of S.D., 2 N.E.3d at 1290 (holding the evidence insufficient to support a

       CHINS adjudication where, at the time of the fact-finding hearing, the parent

       had resolved all of the CHINS allegations except one final step—even though

       she was having difficulty completing that step—because there was no evidence

       that the parent was unwilling or unable to complete that step without the

       coercive intervention of the court). The trial court’s finding that Mother failed

       to provide adequate housing for her children is not supported by the evidence.


[29]   The CHINS petition filed in this case listed reasons for a CHINS finding in

       addition to housing concerns. Specifically, it alleged that: (1) Father was

       unable to care for the children due to his drug use; (2) Mother “struggles with

       untreated mental health issues;” (3) Al.W. had “been exhibiting behavioral

       and/or mental health issues the parents have been unable to adequately

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       address;” (4) Mother is a recovering drug addict but had been “clean for over a

       year;” and (5) the family had “a history” with DCS. Appellant’s App. at 35.

       We address each of these in turn, under the general judgment standard of

       review. In re S.D., 2 N.E.3d at 1287.


[30]   While Father admitted to past and current drug use, the undisputed evidence

       showed that Father was not living with the children at the time the CHINS

       petition was filed or at the time of the fact-finding hearing. Nor was there any

       evidence that Father had ever used or sold drugs in the children’s presence.

       And, the evidence indicated that Mother did not allow Father to visit with the

       children unsupervised, due to her own concerns about Father’s drug use. Thus,

       there was no evidence that Father’s drug use endangered the children at any

       point, and the evidence of Father’s drug use did not support a CHINS

       determination. Cf. M.C. v. Marion Cty. Dep’t of Child Serv. (In re B.N.), 969

       N.E.2d 1021, 1026 (Ind. Ct. App. 2012) (holding child was not a CHINS due to

       witnessing domestic violence where mother had terminated her relationship

       with the abuser by the time of the fact-finding hearing).


[31]   While Mother admitted to having her own mental health problems, there was

       no evidence at all that Mother’s mental health ever affected the children in any

       way, much less endangered them to the point where court intervention was

       necessary. Moreover, Mother had obtained mental health services in the past,

       and was obtaining them at the time of the fact-finding hearing. Thus, even if

       DCS had provided any evidence that Mother’s mental health adversely affected



       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JC-1078 | October 24, 2017   Page 19 of 21
       the children—which it did not—Mother had remedied that issue by seeking

       treatment at the time of the fact-finding hearing.


[32]   Nor do Al.W.’s mental health problems support a CHINS adjudication. DCS’s

       November 25 preliminary investigation report showed that Mother had been

       obtaining mental health services for Al.W. before DCS became involved in this

       case. And the evidence presented at the fact-finding hearing indicated that

       Al.W. had continued to receive mental health treatment during the CHINS

       action and that Mother was willing to continue seeking that treatment for

       Al.W. in the future. The mere fact that those services had not yet cured Al.W’s

       mental health problems is not sufficient to support a CHINS finding. See, e.g.,

       A.H. v. Ind. Dep’t of Child Serv. (In re A.H.), 58 N.E.3d 951, 955 (Ind. Ct. App.

       2016) (finding the child was not a CHINS where the mother sought treatment

       for the child and that treatment had been unsuccessful, but the mother was

       willing to continue seeking treatment for the child and there was no evidence

       the child’s lack of recovery was attributable to some action or inaction of the

       mother). In addition, DCS presented no evidence to support its allegations that

       Mother did not have transportation to get Al.W. to his service providers.


[33]   Mother’s past drug use, which was the reason for DCS’ previous involvement

       with her and the children, had been resolved before the current CHINS case

       was filed and remained resolved as of the time of the fact-finding hearing.

       Mother testified that she had not used drugs in over a year, and the drug screen

       she agreed to take “came back negative for all tested substances,” leading FCM

       Stuckey to conclude that the CHINS allegations were unsubstantiated as to

       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JC-1078 | October 24, 2017   Page 20 of 21
       Mother. Appellant’s App. at 38; Tr. at 40-41. Furthermore, FCM Stuckey

       noted in her preliminary report that Mother was “committed to remaining

       substance free now and in the future for the safety and well-being of her

       children.” Appellant’s App. at 43. Therefore, neither Mother’s past drug use

       nor DCS’s past involvement with her due to her past drug use supported a

       finding that the children were CHINS.



                                               Conclusion
[34]   The evidence did not support the trial court’s finding that Mother had failed to

       provide adequate housing for her children. And there was no evidence to

       support the trial court’s CHINS adjudication for any other reason contained in

       the CHINS petition.


[35]   Reversed.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JC-1078 | October 24, 2017   Page 21 of 21
