MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              Apr 20 2016, 8:29 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.


ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Daniel C. Reuter                                          Gregory F. Zoeller
Nashville, Indiana                                        Attorney General of Indiana

Kurt A. Young                                             Robert J. Henke
Nashville, Indiana                                        Deputy Attorney General

                                                          James D. Boyer
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

C.L. and J.L.,                                            April 20, 2016
Appellants-Defendants,                                    Court of Appeals Case No.
                                                          07A04-1510-JC-1611
        v.                                                Appeal from the Brown Circuit
                                                          Court
Indiana Department of Child                               The Honorable Judith A. Stewart,
Services,                                                 Judge
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          07C01-1505-JC-26, 07C01-1505-
                                                          JC-27, 07C01-1505-JC-28



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 07A04-1510-JC-1611 | April 20, 2016       Page 1 of 10
                                                Case Summary


[1]   C.L. (Mother) and J.L. (Father) (collectively, Parents) appeal the trial court’s

      determination that their children are Children in Need of Services (CHINS).

      Parents argue that the evidence was insufficient to support the CHINS

      adjudication.


[2]   We affirm.


                                        Facts & Procedural History


[3]   Parents are married and have three children, M.L., S.L., and H.L. (collectively,

      Children), who were born in 2003, 2005, and 2008, respectively. In 2010,

      Children were adjudicated CHINS and placed in foster care after law

      enforcement discovered an active methamphetamine lab on the same property

      where the family lived in a mobile home. Additionally, marijuana and drug

      paraphernalia were found inside the home, and Parents both tested positive for

      methamphetamine. As part of the dispositional order, Parents were ordered to

      participate in marriage counseling and drug treatment. The CHINS case closed

      in 2013 and Children were reunified with Parents.


[4]   On May 6, 2015, Parents, who at that time had been separated for about a

      month, were involved in a domestic violence incident. Father came to visit

      Mother at her mother’s home, and they spoke in a car in the driveway while

      Children slept inside the house. Mother and Father got into a physical struggle

      over a cell phone, during which Mother sustained a bruise on her chest. At


      Court of Appeals of Indiana | Memorandum Decision 07A04-1510-JC-1611 | April 20, 2016   Page 2 of 10
      some point, Father exited the car and Mother attempted to drive away, but

      Father jumped onto the hood of the car and tried to break the window. Mother

      drove away with Father still on the hood of the car, and Father fell off. Father’s

      feet were seriously injured and he was admitted to the hospital for treatment.

      When he arrived at the hospital, Father was under the influence of meth and in

      possession of marijuana and a meth pipe.


[5]   On May 11, 2015, the Brown County Department of Child Services (DCS)

      received a report concerning the May 6 domestic violence incident. On May

      14, 2015, DCS received an additional report alleging that Parents were using

      methamphetamine and marijuana. The next day, Family Case Manager

      (FCM) Emily Bock met with Mother at her residence. Mother told FCM Bock

      that Children were present at her mother’s house when the May 6 incident

      occurred. Mother denied being under the influence of drugs or alcohol at the

      time of the incident and stated that she had last used marijuana approximately

      nine months before. Mother told FCM Bock that Father had recently broken a

      window and kicked a door at their home. Mother stated that she would not be

      allowing Father to return to the residence upon his release from the hospital.

      Mother refused a drug screen and denied FCM Bock access to the residence on

      that date.


[6]   FCM Bock returned to Mother’s home on May 27, 2015. This time, Mother

      allowed FCM Bock access to the home, but she again refused a drug screen.

      FCM Bock informed Mother that DCS was restricting Father’s contact with

      Children and that failure to cooperate would result in Children’s removal from

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      the home. Mother told FCM Bock that she understood and that she did not

      know Father’s whereabouts. FCM Bock could not locate Father, but she was

      able to get a message to him through family members about the initial hearing

      scheduled for May 28, 2015.


[7]   Both Mother and Father appeared at the initial hearing. FCM Bock testified

      concerning her investigation up until that point, and the trial court granted

      DCS’s request to file a CHINS petition with respect to Children. The trial court

      ordered that Children would remain in Mother’s care at that time and have

      only supervised visitation with Father.


[8]   On June 9, 2015, DCS decided to remove Children from the home after

      learning that Mother had, in violation of the trial court’s order, allowed Father

      to move back into the home. When FCM Bock and her police escort arrived at

      the home to remove Children, Mother admitted that Father had moved back in

      so that they could work on their relationship. Mother also admitted that she

      was aware that Father was not to have contact with Children unless supervised

      by an individual approved by DCS. Mother and Father both refused drug

      screens, and Mother told FCM Bock to go ahead and take Children. Children

      were placed with their maternal aunt.


[9]   On June 11, 2015, DCS filed an amended CHINS petition and a Report of

      Preliminary Inquiry. In the report, DCS indicated that Father had told FCM

      Bock that Mother had been violent toward him on multiple occasions in the

      past, and during the May 6 incident, she had ripped his shirt off and punched


      Court of Appeals of Indiana | Memorandum Decision 07A04-1510-JC-1611 | April 20, 2016   Page 4 of 10
       him in the face twice, breaking his nose. Father also told FCM Bock that he

       smoked marijuana regularly, that he was high on meth when he was admitted

       to the hospital, and that he and Mother had used meth together on May 4 or 5,

       2015. A detention hearing was held, at which Parents denied the allegations set

       forth in the CHINS petition. The trial court ordered Children’s continued

       placement outside the home and ordered Parents to submit to random drug

       screens.


[10]   A fact-finding hearing was held on July 1, 2015, at which Parents both testified.

       Mother admitted to knowingly violating the trial court’s order by allowing

       Father to move back in and stated that she did so because Children were very

       upset and missing Father. Mother stated that she had used marijuana a few

       months ago, but had not used any other illegal drugs for years. Mother testified

       that she did not think there was anything wrong with smoking marijuana in the

       garage while Children were in the house playing, and that Children would not

       be impacted if she were arrested for using illegal drugs because she would just

       bond out. Mother admitted that she had not complied with the court order to

       submit to random drug screens because she did not think she should have been

       ordered to do so.


[11]   At the fact-finding hearing, Father denied telling FCM Bock that Mother had

       punched him in the face and broken his nose on May 6. He also denied telling

       FCM Bock that he and Mother had used meth together or that he was high on

       meth and in possession of marijuana and a meth pipe when he was admitted to

       the hospital on May 6. Father admitted to using marijuana to cope with stress,

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       but stated it had been two or three months since his last use. He stated that he

       did not comply with the court order requiring him to participate in random

       drug screens because “[i]t’s [his] right.” Transcript at 101.


[12]   FCM Bock testified that she had spoken to Parents about reunification services,

       and they had told her that they did not want to be involved with DCS and

       offered to give a family member temporary guardianship over Children. When

       FCM Bock explained that DCS would not consent to this arrangement because

       Children need permanency, Parents offered to voluntarily terminate their

       parental rights to Children. At the conclusion of the evidence, the trial court

       took the matter under advisement.


[13]   On July 9, 2015, the trial court issued its order adjudicating Children CHINS.

       On September 8, 2015, the trial court issued its dispositional order requiring

       Parents to participate in reunification services. Parents now appeal. Additional

       facts will be provided as necessary.


                                            Discussion & Decision


[14]   Where, as here, a juvenile court enters findings of fact and conclusions of law in

       support of its CHINS determination, we apply a two-tiered standard of review.

       Parmeter v. Cass Cnty. Dep’t of Child Servs., 878 N.E.2d 444, 450 (Ind. Ct. App.

       2007). First, we consider whether the evidence supports the findings, and

       second, whether the findings support the judgment. Id. We will not set aside

       the findings or judgment unless they are clearly erroneous. Id. Findings are

       clearly erroneous when the record contains no facts to support them either

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       directly or by inference, and a judgment is clearly erroneous if it relies on an

       incorrect legal standard. Id. While we defer to the juvenile court’s findings of

       fact, we do not do so to its conclusions of law. Id. Additionally, we will not

       reweigh the evidence; rather, we consider the evidence favorable to the

       judgment and draw all reasonable inferences in favor of the judgment. Id.


[15]   In this case, DCS alleged Children were CHINS pursuant to Ind. Code § 31-34-

       1-1, which provides that a child under eighteen years of age is a CHINS if:

               (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.


[16]   “Because a CHINS proceeding is a civil action, the State must prove by a

       preponderance of the evidence that a child is a CHINS as defined by the

       juvenile code.” In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). In reviewing the

       sufficiency of the evidence supporting a CHINS determination, we consider

       only the evidence most favorable to the judgment and the reasonable inferences

       flowing therefrom. In re J.L., 919 N.E.2d 561, 563 (Ind. Ct. App. 2009).


       Court of Appeals of Indiana | Memorandum Decision 07A04-1510-JC-1611 | April 20, 2016   Page 7 of 10
[17]   In this case, the trial court determined that Children were CHINS because they

       were seriously endangered as a result of Parents’ drug use and the domestic

       violence in their relationship. On appeal, Parents argue that the trial court’s

       finding of endangerment is not supported by sufficient evidence because there is

       no indication that Parents ever used drugs or physically fought in the presence

       of Children. Parents argue further that there is no indication that Children had

       been impacted by or were even aware of any drug use or domestic violence.


[18]   We note, as did the trial court, that Children appear to be doing well.

       However, DCS need not wait until a child is actually harmed to intervene;

       rather, a child may be adjudicated a CHINS if his or her physical or mental

       condition is endangered. I.C. § 31-34-1-1; K.B. v. Ind. Dep’t of Child Servs., 24

       N.E.3d 997, 1003 (Ind. Ct. App. 2015). This court has held that a parent’s drug

       use while caring for a child can support a CHINS determination, even when the

       drug use does not occur in the child’s presence. In re J.L., 919 N.E.2d at 564.

       This is so because when a caregiver is under the influence of drugs, a child is

       “essentially abandoned . . . without any responsible supervision.” Id. In this

       case, Children were previously adjudicated CHINS based on their exposure to

       Parents’ illegal drug use, and Father told FCM Bock that he and Mother had

       used meth together on May 4 or 5, 2015. Father also told FCM Bock that he

       was high on meth when he was admitted to the hospital following the May 6

       domestic violence incident. Furthermore, both Parents admitted to using

       marijuana, and Mother testified that there was nothing wrong with smoking

       marijuana in the garage while Children were inside the house playing.


       Court of Appeals of Indiana | Memorandum Decision 07A04-1510-JC-1611 | April 20, 2016   Page 8 of 10
       According to Mother, Children would not be harmed if she were arrested

       because she would simply bond out. In light of these facts, we conclude that

       the trial court’s finding that Children were seriously endangered by Parents’ use

       of illegal drugs was supported by the evidence.


[19]   With respect to the domestic violence between Mother and Father, we note that

       our Supreme Court has acknowledged that a child’s exposure to domestic

       violence can support a CHINS finding. In re N.E., 919 N.E.2d at 106; see also In

       re S.W., 920 N.E.2d 783, 789-90 (Ind. Ct. App. 2010) (affirming CHINS finding

       based, in part, on child’s statement that domestic violence had been occurring

       in the household). The trial court in this case acknowledged that there was no

       evidence that Children actually witnessed the violence between Mother and

       Father. However, the evidence presented at the fact-finding hearing supports a

       conclusion that domestic violence is an ongoing problem in Parents’ marriage.

       In addition to the May 6 incident, which took place outside the house where

       Children were sleeping, Mother reported that Father had recently broken a

       window and kicked a door at the home. Father reported that Mother punched

       him in the face and broke his nose, and he further asserted that Mother had

       been violent toward him on multiple occasions in the past. Even if we accept

       Parents’ assertions that Children never directly witnessed the violence, Children

       were nevertheless placed at risk due to the pattern of violence and volatility in

       Parents’ relationship. Accordingly, the trial court’s finding that Children were

       seriously endangered as a result of domestic violence is supported by the




       Court of Appeals of Indiana | Memorandum Decision 07A04-1510-JC-1611 | April 20, 2016   Page 9 of 10
       evidence. Based on the foregoing, we conclude that the trial court properly

       found Children to be CHINS.


[20]   Judgment affirmed.


[21]   Bailey, J. and Bradford, J., concur.




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