MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             Jun 10 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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Thomas G. Krochta                                        Gregory F. Zoeller
Vanderburgh County Public                                Attorney General of Indiana
Defender’s Office
Evansville, Indiana                                      Robert J. Henke
                                                         Deputy Attorney General

                                                         James D. Boyer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA
IN THE MATTER OF:                                        June 10, 2016
                                                         Court of Appeals Case No.
A.G., N.G., and S.G.,                                    82A01-1511-JC-2068
Children in Need of Services,
                                                         Appeal from the Vanderburgh
C.G.,                                                    Superior Court
Appellant-Respondent,                                    The Honorable Brett J., Niemeier,
                                                         Judge
        v.
                                                         The Honorable Renee A.
                                                         Ferguson, Magistrate
Indiana Department of Child
Services,                                                Trial Court Cause Nos.
                                                         82D04-1506-JC-1014,
Appellee-Petitioner.
                                                         82D04-1506-JC-1015, and
                                                         82D04-1506-JC-1016


Court of Appeals of Indiana | Memorandum Decision 82A01-1511-JC-2068 | June 10, 2016       Page 1 of 9
      Najam, Judge.


                                          Statement of the Case
[1]   C.G. (“Father”) appeals the juvenile court’s determination that his minor

      children, A.G., N.G., and S.G. (“the Children”), are Children in Need of

      Services (“CHINS”). Father presents a single issue for our review, namely,

      whether the court erred when it determined the Children to be CHINS. We

      affirm.


                                    Facts and Procedural History
[2]   On June 9, 2015, the Indiana Department of Child Services (“DCS”) received a

      report of drug use and domestic violence in the Children’s home. As part of its

      ensuing investigation, DCS had Father take a drug test. Father tested positive

      for cocaine and marijuana use. Thereafter, Father gave numerous conflicting

      stories about his drug use.


[3]   Father cared for the Children in the home of R.M., the Children’s mother

      (“Mother”),1 while she worked and, the week before DCS began its

      investigation, Father was at the home “[o]ff and on.” Tr. at 53. In January of

      2015, Mother and Father had an argument in Mother’s home while the

      Children were present. Father was “screaming” and “throwing stuff around,”

      which made Mother feel “[s]cared.” Id. at 32, 59. Mother also had a protective




      1
          Mother did not object to the CHINS proceedings and does not partake in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1511-JC-2068 | June 10, 2016      Page 2 of 9
      order against Father. According to Mother, she obtained the protective order

      “[b]ecause [Father] was harassing me and threatening to come over all the

      time”; Father “would message me or if I didn’t answer the phone he would call

      me and he would tell me he was gonna come to the house and nobody could

      stop him”; Father “said he would come to the house, he would put me in the

      hospital. He said he would just do a whole bunch of stuff. He said he’d break

      everything in the house.” Id. at 55. Mother was scared of Father and believed

      him when he made these threats.


[4]   Following DCS’s intervention, Mother agreed to a safety plan to keep the

      Children safe from Father and to prevent him from entering the home. The

      juvenile court further ordered Father to stay out of Mother’s home. Thereafter,

      Father lived with his grandmother. During DCS’s involvement, DCS offered

      Father supervised visitation with the Children three times a week, but Father

      only attended one visit each week.


[5]   On November 17, the juvenile court held a dispositional hearing, at which

      Mother and Father testified. Mother testified that she believed the coercive

      intervention of the court to be necessary to prevent Father from harassing and

      threatening her. Father testified that Mother and her family, who had become

      more involved in the care of the Children following DCS’s involvement, used

      drugs and neglected the Children.


[6]   Following the dispositional hearing, the court adjudicated the Children to be

      CHINS. Among other things, the court ordered Father to participate in


      Court of Appeals of Indiana | Memorandum Decision 82A01-1511-JC-2068 | June 10, 2016   Page 3 of 9
      domestic violence therapy and substance abuse treatment programs. This

      appeal ensued.


                                     Discussion and Decision
[7]   Father appeals the juvenile court’s determination that the Children are CHINS.

      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

      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 as 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.


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

      preponderance of the evidence that [the Children are] CHINS as defined by the

      juvenile code.” N.L. v. Ind. Dep’t of Child Servs. (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




      Court of Appeals of Indiana | Memorandum Decision 82A01-1511-JC-2068 | June 10, 2016   Page 4 of 9
       and the reasonable inferences flowing therefrom. A.C. v. Hamilton Cty. Dep’t of

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


[9]    To support a CHINS adjudication, DCS must prove three elements by a

       preponderance of the evidence: (1) that the Children are under eighteen years

       of age, (2) that at least one of eleven different statutory circumstances exist that

       would make the Children CHINS,2 and (3) that the Children need care,

       treatment, or rehabilitation that they are not receiving and are unlikely to be

       provided or accepted without the coercive intervention of the court. S.S. v. Ind.

       Dep’t of Child Servs. (In re K.D.), 962 N.E.2d 1249, 1253 (Ind. 2012). Here, the

       juvenile court found the Children to be CHINS pursuant to Indiana Code

       Section 31-34-1-1 (2015), which states that a child is a CHINS if 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 . . . to supply the

       child with necessary food, clothing, shelter, medical care, education or

       supervision”; and the child needs care, treatment, or rehabilitation that the child

       is not receiving and is unlikely to be provided without the coercive intervention

       of the court.


[10]   Father’s arguments on appeal do not clearly delineate between the separate

       statutory requirements. Rather, it appears that Father’s argument on appeal is

       that DCS failed to demonstrate any of the statutory elements for two reasons.




       2
           These circumstances are codified at Indiana Code Sections 31-34-1-1 to -11.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1511-JC-2068 | June 10, 2016   Page 5 of 9
       First, Father asserts that certain findings of the juvenile court in its CHINS

       order are not supported by the evidence. Second, Father asserts that, at best,

       the evidence showed he only used cocaine one time. We address each

       argument in turn.


[11]   We first consider Father’s challenge to four findings of the juvenile court in its

       CHINS order. In particular, Father challenges paragraphs 36, 38, 42, and 43,

       which state as follows:


               36. Although [F]ather repeatedly emphasized his willingness
               to cooperate with DCS during his testimony, [F]ather has
               demonstrated an unwillingness to disclose truthful information,
               evidenced by multiple inconsistent statements, including
               statements about his drug use and residence.


                                                      ***


               38. [F]ather admitted that his cocaine and marijuana use was
               “not appropriate,” but [he] denied that his substance abuse was
               harmful to [the C]hildren, relying on his earlier testimony that he
               was outside of the home for a full week prior to his drug test and
               that he used cocaine only one (1) time, which is contradicted by
               his earlier admissions.


                                                      ***


               42. Assessment FCM [(Family Case Manager)] and On-going
               FCM expressed concern that [F]ather’s drug use, instability, and
               inconsistency in complying with temporary services are harming
               the [C]hildren. The Court finds that [F]ather’s pattern of
               instability negatively affects the [C]hildren’s development and
               emotional health.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1511-JC-2068 | June 10, 2016   Page 6 of 9
               43. Throughout the pendency of the cases, [F]ather has
               engaged in a pattern of behavior which indicates that he is unable
               to provide care for the [C]hildren, provide a safe and stable
               environment, and ensure that the [C]hildren receive appropriate
               supervision. Furthermore, [F]ather’s inconsistent and
               contradictory statements and failure to participate in temporary
               services, despite access to services through DCS, demonstrate
               that less restrictive means have failed to ensure the safety of the
               [C]hildren.


       Appellant’s App. at 30-31. DCS concedes on appeal that, insofar as paragraph

       38 can be read to say that Father contradicted himself with respect to the

       number of times he ingested cocaine, that reading is not supported by the

       evidence.


[12]   We have reviewed the record and affirm those findings. With respect to

       paragraphs 36 and 38, the record is clear that Father repeatedly changed his

       story with respect to his cocaine use. And although Father consistently stated

       that he had used cocaine one time, his contradictions elsewhere with respect to

       that use permitted the juvenile court to find him not credible.


[13]   With respect to paragraph 42, Father asserts that the DCS’s witnesses did not

       testify that Father’s behavior was actively harming the Children. But Father

       misconstrues this finding. The court stated, accurately, that DCS’s witnesses

       “expressed concern” about Father’s behavior. Appellant’s App. at 30; see Tr. at

       73-76. Moreover, the juvenile court is permitted to reach reasonable inferences

       from the evidence and need not wait until a child is actually harmed to




       Court of Appeals of Indiana | Memorandum Decision 82A01-1511-JC-2068 | June 10, 2016   Page 7 of 9
       intervene. E.g., N.P. v. Ind. Dep’t of Child Servs. (In re R.P.), 949 N.E.2d 395, 401

       (Ind. Ct. App. 2011).


[14]   Father also asserts that paragraph 43 is clearly erroneous because he was denied

       the opportunity to provide the Children with appropriate care due to the safety

       plan. But Father ignores the reason the safety plan was put into place. He also

       ignores the ample evidence of his behavior following DCS’s involvement. We

       reject this argument.


[15]   We also briefly consider Father’s argument that his one-time use of cocaine is

       not sufficient to support the CHINS adjudication. Father asserts that his case is

       analogous to the facts in Perrine v. Marion County Office of Child Services, 866

       N.E.2d 269, 277 (Ind. Ct. App. 2007), in which we held that a parent’s one-

       time drug use outside the presence of her child and without more was not

       sufficient to support a CHINS adjudication. But Perrine is inapposite. Father

       used cocaine along with marijuana, and the use of multiple drugs on different

       occasions is not a one-time use. Further, although Father repeatedly changed

       his story as to when he ingested the cocaine that led to the failed drug test,

       according to his testimony at the dispositional hearing it was about three days

       before DCS began its investigation. And Mother testified that, at that time,

       Father was providing care for the Children “[o]ff and on.” Tr. at 53.

       Accordingly, the evidence most favorable to the trial court’s judgment

       reasonably puts Father’s cocaine use at a time in which he was providing care

       for the Children. And, in any event, unlike the facts in Perrine, Father has a



       Court of Appeals of Indiana | Memorandum Decision 82A01-1511-JC-2068 | June 10, 2016   Page 8 of 9
       violent relationship with Mother, and Mother obtained a protective order

       against him.


[16]   In sum, we reject Father’s challenge to the trial court’s findings and his reliance

       on Perrine. Father’s arguments on appeal amount to requests for this court to

       reweigh the evidence, which we cannot do. Moreover, in addition to those

       findings challenged by Father, which we have addressed, the trial court made

       numerous unchallenged findings, which when considered in the aggregate also

       support the CHINS determination. See, e.g., Karma W. v. Marion Cty. Dep’t of

       Child Servs. (In re B.J.), 879 N.E.2d 7, 20 (Ind. Ct. App. 2008) (holding that an

       erroneous finding is “merely harmless surplusage” when unchallenged findings

       “provide ample support for the trial court’s ultimate conclusion”), trans. denied.

       We affirm the juvenile court’s adjudication of the Children as CHINS.


[17]   Affirmed.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1511-JC-2068 | June 10, 2016   Page 9 of 9
