                                                                        FILED
                                                                   Jul 15 2020, 8:46 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Mark E. Small                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                       Attorney General of Indiana
                                                            Robert J. Henke
                                                            Abigail Recker
                                                            Deputy Attorneys General
                                                            Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

In the Matter of:                                           July 15, 2020

D.S. (Minor Child),                                         Court of Appeals Case No.
                                                            20A-JC-777
And
                                                            Appeal from the Greene Circuit
A.P. (Mother),                                              Court
Appellant-Respondent,                                       The Honorable Erik C. Allen,
                                                            Judge
         v.                                                 Trial Court Cause No.
                                                            28C01-2001-JC-9
Indiana Department of Child
Services,
Appellee-Petitioner.



Riley, Judge.




Court of Appeals of Indiana | Opinion 20A-JC-777 | July 15, 2020                            Page 1 of 8
                                 STATEMENT OF THE CASE
[1]   Appellant-Respondent, A.P. (Mother), appeals the trial court’s adjudication of

      her minor child, D.S. (Child), as a Child in Need of Services (CHINS).


[2]   We reverse.


                                                       ISSUE
[3]   Mother presents this court with one issue on appeal, which we restate as

      follows: Whether the trial court erred by adjudicating Child to be a CHINS.


                       FACTS AND PROCEDURAL HISTORY
[4]   Mother is the biological parent to Child, born on September 1, 2015. On

      November 22, 2016, the trial court adjudicated Child to be a CHINS in a prior

      CHINS proceeding due to Mother testing positive for amphetamine and

      methamphetamine and her admission to having a substance abuse problem.

      This wardship was eventually dismissed.


[5]   In February 2019, the Department of Child Services (DCS) received a report

      alleging that Mother was using and selling marijuana in her home, as well as

      her residence being in “dirty home conditions.” (Transcript p. 15). On April

      23, 2019, DCS and Mother entered into an Informal Adjustment. 1 Between

      April 2019 and August 2019, Mother failed to submit to 14 out of 22 drug



      111
          An Informal Adjustment is a negotiated agreement between a family and DCS whereby the family agrees
      to participate in various services in an effort to prevent the child or children from being formally deemed
      CHINS. See Ind. Code § 31-34-8 et seq.

      Court of Appeals of Indiana | Opinion 20A-JC-777 | July 15, 2020                                Page 2 of 8
      screens despite different formats of drug testing being used. Although the

      Informal Adjustment period was extended, Mother failed to comply with the

      minimal requirements: random drug screens and substance abuse services.

      Mother admitted to using marijuana on several occasions and emphasized that

      she abuses marijuana when she feels “stressed or overwhelmed.” (Tr. p. 18).

      However, Mother claimed to only use marijuana when the Child is not in her

      care. Mother has never appeared to be under the influence to DCS.


[6]   On January 16, 2020, DCS filed a petition requesting Child to be adjudicated a

      CHINS due to Mother’s use of illegal substances endangering the Child and

      requiring coercive intervention to compel Mother’s compliance with the terms

      of the Informal Adjustment. On February 27, 2020, the trial court conducted a

      factfinding hearing. During the hearing, DCS’s Family Case Manager (FCM)

      testified that the Child was neglected because Mother “tested positive for

      marijuana on several occasions so marijuana use is still an issue” and Mother

      “has not been able to obtain employment as of yet” to financially support the

      family. (Tr. p. 22). The FCM clarified that a safety plan was in place in which

      Mother is supposed to have Maternal Grandmother care for the Child should

      Mother use drugs. FCM was unsure that Mother was a “sober caregiver at all

      times.” (Tr. p. 22). While the basic needs of the Child were being met, the

      FCM opined that Mother required more time to address her marijuana abuse

      and to obtain stable employment. She advised that “court intervention is

      needed due to the lack of engagement and participation throughout the entire

      Informal Adjustment and Informal Adjustment extension, we just not have had


      Court of Appeals of Indiana | Opinion 20A-JC-777 | July 15, 2020         Page 3 of 8
      the participation and engagement that was needed for the Informal

      Adjustment.” (Tr. p. 23). DCS proposed to maintain the Child in Mother’s

      care in the home, which was in appropriate condition at the time of the hearing.

      On February 27, 2020, the trial court adjudicated Child to be a CHINS. On

      March 17, 2020, after a dispositional hearing, the trial court ordered Mother to

      participate in services.


[7]   Mother now appeals. Additional facts will be provided if necessary.


                               DISCUSSION AND DECISION
[8]   Mother contends that the trial court abused its discretion in finding Child to be

      a CHINS. In order to adjudicate a child as a CHINS, DCS must prove by a

      preponderance of the evidence that:


               (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 . . . to supply the child with
                   necessary food, clothing, shelter, medical care, education, or
                   supervision:


                        (A) When the parent, guardian, or custodian is financially
                        able to do so; or


                        (B) Due to the failure, refusal, or inability of the parent,
                            guardian, or custodian to seek financial or other
                            reasonable means to do so; and


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


                        (A) The child is not receiving; and
      Court of Appeals of Indiana | Opinion 20A-JC-777 | July 15, 2020                 Page 4 of 8
                        (B) Is unlikely to be provided or accepted without the
                            coercive intervention of the court.


      I.C. § 31-34-1-1 (2019). In making its determination, the trial court should

      consider the family’s condition not just when the case was filed, but also when

      it was heard. In re S.D., 2 N.E.3d 1283, 1290 (Ind. 2014). A CHINS

      adjudication cannot be based solely on conditions that have ceased to exist. In

      re S.A., 15 N.E.3d 602, 611 (Ind. Ct. App. 2014), trans. denied. The adjudication

      must be based on the evidence presented in court and not on the allegations in

      the pleadings. Maybaum v. Putnam Co. O.F.C., 723 N.E.2d 951, 954 (Ind. Ct.

      App. 2000). In reviewing a CHINS determination, we do not reweigh evidence

      or assess witness credibility. Matter of N.C., 72 N.E.3d 519, 523 (Ind. Ct. App.

      2017). We consider only the evidence in favor of the trial court’s judgment,

      along with any reasonable inferences arising therefrom. Id.


[9]   Mother maintains that the trial court erred in adjudicating Child a CHINS

      because there was no evidence Child was in any danger, or that her needs

      would go unmet in the absence of the coercive intervention of the trial court.

      The purpose of a CHINS inquiry is to determine whether a child’s

      circumstances require services that are unlikely to be provided without the

      intervention of the court, and thus, the focus of a CHINS adjudication is on the

      condition of the child alone, not on the culpability of one or both parents. In re

      N.E., 919 N.E.2d 102, 105-06 (Ind. 2010). Nonetheless, “[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.” In re S.D., 2

      Court of Appeals of Indiana | Opinion 20A-JC-777 | July 15, 2020            Page 5 of 8
       N.E.3d at 1287. Rather, a CHINS adjudication under Indiana code section 31-

       34-1-1 requires proof of three basic elements: the parent’s actions or inactions

       have seriously endangered the child; the child’s needs are unmet; and “perhaps

       most critically,” those needs are unlikely to be met unless the State intervenes.

       Id. It is the last element that guards against unwarranted State interference in

       family life. Id. State intrusion is warranted only when parents lack the ability

       to provide for their children. Id. In other words, the focus is on the best

       interests of the child and whether the child needs help that the parent will not be

       willing or able to provide. Id. Despite a “certain implication of parental fault in

       many CHINS adjudications, the truth of the matter is that a CHINS

       adjudication is simply that—a determination that a child is in need of services.”

       In re N.E. 919 N.E.2d at 105.


[10]   The evidence reflects that Mother admitted to having a substance abuse

       problem, especially when she felt stressed or overwhelmed. Although Mother

       agreed to participate in services through an Informal Adjustment—which was

       extended once—she failed to submit consistently to drug screens and conceded

       to using marijuana on several occasions. FCM became concerned about

       Mother’s drug use as it was uncertain that Child had a “sober and appropriate

       caregiver” at all times despite Mother’s denial to ever using marijuana while the

       Child was in her care. (Tr. p. 22).


[11]   In Perrin v. Marion County Officer of Child Services, 866 N.E.2d 269, 271 (Ind. Ct.

       App. 2007), mother was arrested as part of a routine probation sweep which

       located paraphernalia commonly used for methamphetamine consumption in

       Court of Appeals of Indiana | Opinion 20A-JC-777 | July 15, 2020            Page 6 of 8
       the bedroom of a houseguest. Mother admitted to using methamphetamine a

       few days prior to the probation sweep. Id. at 272. As a result of her arrest,

       DCS filed a petition alleging her daughter to be a CHINS based on mother’s

       failure to provide her child with a safe and stable home, free from drugs and

       neglect. Id. The trial court granted DCS’s petition. Id. at 273. In reviewing

       the evidence, we noted that the evidence did not support a finding that mother

       used methamphetamine in front of the child. Id. at 276. We reversed the trial

       court’s determination on appeal, finding that a “single admitted use of

       methamphetamine outside of the presence of the child and without more, is

       insufficient to support a CHINS determination.” Id. at 277.


[12]   Likewise, in Ad.M v. Indiana Department of Child Services, 103 N.E.3d 709, 713-14

       (Ind. Ct. App. 2018), we reversed a CHINS determination because “evidence of

       one parent’s use of marijuana and evidence that marijuana ha[d] been found in

       the family home, without more, does not demonstrate that a child has been

       seriously endangered for purposes of Indiana Code [s]ection 31-34-1-1.” We

       noted that DCS did not present any evidence that either mother’s drug use or

       the presence of marijuana in the home seriously endangered the children. Id. at

       714. Rather, the permanency case manager admitted that she “really [couldn’t]

       see the way” mother’s marijuana use impacted the children. Id. Further, DCS

       did not present any evidence that mother used drugs while the children were

       present in the home or while she had care of the children. Id. Relying on our

       jurisprudence, we concluded that the children cannot be adjudicated as CHINS

       despite mother’s history of marijuana use because there was no evidence that, at

       Court of Appeals of Indiana | Opinion 20A-JC-777 | July 15, 2020          Page 7 of 8
       any point in time, any of the children were endangered, that the parents had

       ever used drugs in the presence of the children, or that there was ever an

       occasion in which the parents were impaired by substance abuse while the

       children were in their care. Id.


[13]   Similarly, here, despite Mother’s admitted drug use, DCS did not present any

       evidence that Mother used marijuana while the Child was in the home or that

       DCS had ever perceived Mother to be under the influence of drugs. The FCM

       conceded that “the basic needs of the [Child] are being met” and a safety plan

       was in effect that placed the Child with Maternal Grandmother if Mother felt

       overwhelmed and in need of marijuana. (Tr. p. 23). The FCM’s concern,

       without more, that “[i]llegal substance use impairs your thinking, your

       response, . . . your normal thought processes and action” is not sufficient to

       support a CHINS determination. As DCS did not carry its burden that

       Mother’s actions or inactions have seriously endangered the Child, we conclude

       that the trial court erred when it adjudicated Child to be a CHINS.


                                               CONCLUSION
[14]   Based on the foregoing, we hold that the trial court erred in adjudicating Child

       to be CHINS.


[15]   Reversed.


[16]   Mathias, J. and Tavitas, J. concur




       Court of Appeals of Indiana | Opinion 20A-JC-777 | July 15, 2020          Page 8 of 8
