                                                                        FILED
                                                                   Sep 27 2018, 8:05 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Leanna Weissmann                                           Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                      Attorney General of Indiana
                                                           Frances Barrow
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In re the Matter of B.V., Minor                            September 27, 2018
Child, and D.V., Mother,                                   Court of Appeals Case No.
Appellant-Respondent,                                      18A-JC-988
                                                           Appeal from the Decatur Circuit
        v.                                                 Court
                                                           The Honorable Timothy B. Day,
The Indiana Department of                                  Judge
Child Services,                                            Trial Court Cause No.
Appellee-Petitioner.                                       16C01-1711-JC-451




Brown, Judge.




Court of Appeals of Indiana | Opinion 18A-JC-988 | September 27, 2018                       Page 1 of 10
[1]   D.V. (“Mother”) appeals the trial court’s order determining that B.V. is a child

      in need of services (“CHINS”). Mother raises one issue which we revise and

      restate as whether the evidence is sufficient to support the court’s determination

      that B.V. is a CHINS. We reverse.


                                       Facts and Procedural History

[2]   On November 10, 2017, Mother gave birth to B.V. That month, the

      Department of Child Services (“DCS”) filed a petition alleging that B.V. was a

      CHINS. The petition also alleged that both Mother and B.V. tested positive for

      THC, staff at the hospital reported concerns for Mother’s mental health,

      Mother admitted to being diagnosed with bipolar disorder and not taking

      medication for treatment, and Mother was living with a known drug user.


[3]   On November 15, 2017, the court held a hearing at which Mother denied the

      allegations and asserted that she never yelled at her baby and that she was

      diagnosed with a mood swing disorder and not bipolar disorder. Family Case

      Manager Erin Tomlinson testified that Mother at one point, while she was

      nursing B.V., said: “Ow, you bit me you stupid f------ child.” Transcript

      Volume II at 16. She testified that Mother admitted to regularly smoking

      marijuana during her pregnancy while knowing the effects that marijuana can

      have on a child, and to smoking marijuana when B.V. was in the home. She

      testified that DCS had concerns about Mother’s present living situation because

      she was living with Kevin Ruble in an apartment where Ruble was on home

      detention for previous drug charges and, when case managers and law

      enforcement arrived at the home for the detention, they detected a strong odor
      Court of Appeals of Indiana | Opinion 18A-JC-988 | September 27, 2018    Page 2 of 10
      of marijuana in the home. She testified that B.V. was placed in a foster home.

      After some discussion, the court stated “I’m going to be safe than sorry with a

      five-day old baby.” Id. at 23.


[4]   On March 8, 2018, the court held a hearing. Mother testified that she was

      living with her ex-boyfriend, Ruble, in November 2015, and subsequently began

      staying with her mother and grandmother before obtaining her own apartment

      two months before the hearing. She testified that she was no longer with Ruble

      and that she lived with Anthony Hubbard periodically for “a month or so.” Id.

      at 31. She testified that she provided DCS or her caseworker with her current

      address, and that she was employed at McDonald’s for “maybe two and a half

      weeks” and had previously worked at OSO and “Valleyo (phonetic).” Id. at 33-

      34. She testified that she agreed to participate in services and had an

      assessment in which it was recommended that she attend drug classes once a

      month. She stated that she called DCS every day to determine if she was on the

      drug screen list, that she was tested maybe two or three times a week, and that

      she had been visiting B.V. regularly. On cross-examination, Mother testified

      that she had been receiving clean drug screens for three months, that she had

      the support of her family, and that she felt she was able to stay free of THC or

      any other drug.


[5]   Family Case Manager Chelsea Morgan (“FCM Morgan”) testified that Mother

      calls about every five days which is concerning because there are certain drugs

      that would be out of her system within three to five days, but that Mother had

      generally tested negative on the screens. FCM Morgan testified that she did not

      Court of Appeals of Indiana | Opinion 18A-JC-988 | September 27, 2018     Page 3 of 10
      receive Mother’s address until February. When asked if DCS had concerns

      regarding Mother’s present housing because DCS had not been able to see it,

      she answered: “No, I don’t have concerns, specifically for that. No.” Id. at 55.

      DCS’s attorney asked: “So is [DCS] okay with her apartment given her

      testimony, or does the department wish . . . .” Id. FCM Morgan answered:

      “We would like to go look at her house. Yes, we [are] concerned. I didn’t

      understand.” Id. On cross-examination, FCM Morgan acknowledged that she

      had Mother’s correct address on February 7th but had not been to Mother’s

      home since then, and that Mother called in fifteen times since December. She

      acknowledged that Mother completed her assessment at Centerstone, had been

      regularly visiting with B.V., and that reports from visitation had been positive.


[6]   Rodney Fischer, the visit supervisor, testified that Mother did very well during

      the two two-hour visits per week with B.V., that she was “a loving doting

      mom,” that she always appeared at every visit with a full diaper bag with

      everything needed, and that “she took good care of him.” Id. at 62-63. He also

      testified that Mother was concerned about dirt under B.V.’s fingernails, pointed

      out that B.V. was being transported in an expired car seat, and provided a

      different car seat to transport him.


[7]   Mother testified that there were a few times she did not call in “not because I

      didn’t want to take a drug screen, but for the fact that I worked a lot and I was

      tired.” Id. at 67. She testified that she never refused a drug screen, was willing

      to take a drug screen, and had been passing the screens for several months. She

      also testified that she did not feel like she needed services from Centerstone and

      Court of Appeals of Indiana | Opinion 18A-JC-988 | September 27, 2018     Page 4 of 10
      would be able to go there to obtain services on her own if she felt like she

      needed help.


[8]   The trial court stated:


              So the issue today is if this child is [in] need of services, and I – as
              I sit here today I could make a finding that the child’s in need of
              services based on where we started, and you know, the lack of
              her residency, the lack of a job, the testing positive for THC,
              people living in the home, a lot of those things have been
              alleviated. So I mean I could say that the child’s not in need of
              services as well, because she’s done a lot of things to remedy the
              situation.

              I think there’s a middle ground here that I’d like to explore,
              which is an in-home CHINS, just simply because I still think
              what I’ve heard is several short-term jobs. Not having had
              housing of her own for a long period of time. You know with a
              child this age short-term jobs don’t work because you lose your
              housing, and having housing consistently is very important.

              You know I haven’t seen enough that I’m a hundred percent
              comfortable that we’re a hundred – we’re all the way there yet.
              But I do think that I don’t see the dangers to the child that I saw
              when the child was detained either.

              Mr. Ruble’s no longer in the home. We do have residency, we
              have employment. She has to a great extent cooperated with the
              department, I think she would continue to do that if the child was
              in her home and being cared for [by] her. But I do think that,
              you know, she’s young, the child’s young, and a lot of things that
              are – that she’s doing are in the right direction, but could easily
              slide backward, and that’s why I think that a CHINS would be
              appropriate just to make sure that the drug – being drug free is
              consistent, being with a job is consistent, being with housing is
              consistent.


      Court of Appeals of Indiana | Opinion 18A-JC-988 | September 27, 2018         Page 5 of 10
       Id. at 69-70. On March 20, 2018, the court entered an order finding B.V. to be a

       CHINS.


[9]    On March 27, 2018, the court held a dispositional hearing. FCM Morgan

       testified that B.V. was placed with Mother. She also testified that DCS had

       filed a petition for parental participation including that Mother participate in

       home-based casework, maintain stable housing, and undergo random drug

       screens and a psychological evaluation. When asked the point of the

       psychological evaluation at that time, FCM Morgan answered:


               So a psychological evaluation is in there due to concerns with
               parenting and mental health and that basically would determine
               if there were any additional underlying mental health needs that
               weren’t being addressed in therapy, that – when those were
               presented to the therapist, the therapist could address those
               things.


       Id. at 82.


[10]   On April 4, 2018, the court entered a Dispositional Order and ordered Mother

       to participate in a treatment program or pay for services consistent with the

       recommendation of DCS, including that she contact the family case manager

       every week, allow the family case manager or other service providers to make

       unannounced visits to the home of the child, and participate in home-based

       casework through Healthy Families. Mother was ordered to maintain suitable

       housing, and a legal and stable source of income, submit to random drug

       screens, obtain a substance abuse assessment if she tests positive, and ensure


       Court of Appeals of Indiana | Opinion 18A-JC-988 | September 27, 2018      Page 6 of 10
       that B.V. is properly clothed, fed, supervised, and will become engaged in a

       home-based counseling program.


                                                     Discussion

[11]   The issue is whether the evidence is sufficient to support the court’s

       determination that B.V. is a CHINS. Mother argues that the evidence is

       insufficient to determine that B.V. is a CHINS. DCS agrees and requests this

       Court to reverse.


[12]   In reviewing a trial court’s determination that a child is in need of services, we

       neither reweigh the evidence nor judge the credibility of witnesses. In re S.D., 2

       N.E.3d 1283, 1286-1287 (Ind. 2014), reh’g denied. Instead, we consider only the

       evidence that supports the trial court’s decision and reasonable inferences

       drawn therefrom. Id. at 1287. As to issues covered by findings, we apply the

       two-tiered standard of whether the evidence supports the findings and whether

       the findings support the judgment. Id. We review 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. Id.


[13]   The Indiana Supreme Court has cautioned that “[n]ot every endangered child is

       a child in need of services, permitting the State’s parens patriae intrusion into the

       ordinarily private sphere of the family.” Id. DCS alleged that B.V. was a

       CHINS pursuant to Ind. Code § 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:

       Court of Appeals of Indiana | Opinion 18A-JC-988 | September 27, 2018        Page 7 of 10
               (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.


[14]   The Indiana Supreme Court has interpreted this provision to require “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.


[15]   Additionally, DCS alleged that B.V. was a CHINS pursuant to Ind. Code § 31-

       34-1-10, which provides:


               Except as provided in sections 12 and 13 of this chapter, a child
               is a child in need of services if:

               (1) the child is born with:

                                                      *****

                        (C) any amount, including a trace amount, of a controlled
                        substance, a legend drug, or a metabolite of a controlled
                        substance or legend drug in the child’s body, including the
                        child’s blood, urine, umbilical cord tissue, or meconium;
                        and


       Court of Appeals of Indiana | Opinion 18A-JC-988 | September 27, 2018       Page 8 of 10
               (2) the child needs care, treatment, or rehabilitation that:

                        (A) the child is not receiving; or

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


[16]   As noted, DCS agrees with Mother that reversal is required. Specifically, it

       states there is no evidence that Mother had any difficulty in meeting B.V.’s

       needs and that there were no findings that B.V. had any unmet needs. It asserts

       that the trial court’s only concern was that Mother was young and could

       backslide, which does not satisfy the statutory dictates. DCS concedes that

       there was no evidence that Mother’s marijuana use ever harmed B.V. and her

       visitation supervisor thought Mother did very well at visits and was loving and

       doting. Based upon DCS’s agreement that reversal is required as well as our

       review of the record, we reverse the court’s determination that B.V. was a

       CHINS. See In re S.M., 45 N.E.3d 1252, 1256-1257 (Ind. Ct. App. 2015)

       (observing that there was “no evidence in the record showing how, specifically,

       marijuana-positive meconium endangered the child,” finding that the evidence

       was insufficient to support the CHINS determination, and stating: “We are well

       aware that DCS and the courts are overwhelmed with the growing numbers of

       CHINS cases statewide. All would be better served if the system focused its

       time, efforts, and resources on the families who really need them. This one did

       not.”); see also Ad.M. v. Ind. Dep’t of Child Servs., 103 N.E.3d 709, 714 (Ind. Ct.

       App. 2018) (“Following In re S.M., without any specific evidence that the

       marijuana itself or Mother’s use of it presented a serious danger to the Children,


       Court of Appeals of Indiana | Opinion 18A-JC-988 | September 27, 2018       Page 9 of 10
       we must conclude that the DCS failed to present sufficient evidence to support

       the CHINS determination.”).


                                                     Conclusion

[17]   For the foregoing reasons, we reverse the trial court’s CHINS determination.


[18]   Reversed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 18A-JC-988 | September 27, 2018   Page 10 of 10
