MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jul 30 2020, 9:25 am
court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Ryan D. Bower                                             Curtis T. Hill, Jr.
Bower Law Office, LLC                                     Attorney General of Indiana
Salem, Indiana
                                                          Katherine A. Cornelius
                                                          Robert J. Henke
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In re the Matter of V.R. (Minor                           July 30, 2020
Child),                                                   Court of Appeals Case No.
                                                          20A-JC-450
R.C. (Mother),
                                                          Appeal from the Orange Circuit
Appellant-Respondent,                                     Court
        v.                                                The Honorable Steven L. Owen,
                                                          Judge
Indiana Department of Child                               Trial Court Cause No.
Services,                                                 59C01-1911-JC-246

Appellee-Petitioner.



Mathias, Judge.



Court of Appeals of Indiana | Memorandum Decision 20A-JC-450 | July 30, 2020                   Page 1 of 11
[1]   R.C. (“Mother”) appeals the Orange Circuit Court’s order adjudicating her

      minor child a Child In Need of Services (“CHINS”). Mother raises three issues,

      which we restate as the following two:


          I. Whether the trial court abused its discretion when it allowed a
             toxicologist’s telephonic testimony; and,

          II. Whether the Department of Child Services (“DCS”) proved that V.R. was
              a CHINS by a preponderance of the evidence.

[2]   We affirm.


                                       Facts and Procedural History
[3]   Mother has one child, V.R., who was born on August 10, 2008. 1 V.R. suffers

      from a heart condition. V.R.’s maternal grandmother provides medical care to

      her.


[4]   On November 25, 2019, the DCS received a report that Mother was using

      illegal substances and not maintaining her mental health. Two family case

      managers went to Mother’s home to investigate. They spoke to Mother and her

      roommate. V.R. was at her grandmother's house.


[5]   Mother initially agreed to submit to a drug screen and admitted that the screen

      would be positive for methamphetamine. Tr. p. 64. Mother told family case

      manager (“FCM”) Rebecca Nail (“Nail”) that she sprayed hairspray on

      methamphetamine “to oxidize it or to remove the chemicals so she could sleep



      1
          The child’s father, H.R., is incarcerated, and his release date is May 24, 2023. Tr. p. 48.


      Court of Appeals of Indiana | Memorandum Decision 20A-JC-450 | July 30, 2020                      Page 2 of 11
      at night.” Tr. p. 17; see also Tr. p. 62. Mother admitted that she heard voices in

      her head. Tr. pp. 18, 65. She was agitated and could not speak in clear and

      concise sentences.


[6]   Dalton Nigg (“Nigg”), the second family case manager, learned that V.R. was

      safe at her grandmother’s home but was expected to return to Mother’s home

      the next day. Nigg returned to Mother’s home on November 26, 2019. When

      he arrived at approximately 11:40 a.m., Mother was still in bed. Mother was

      agitated and “somewhat scattered.” Tr. p. 12. Mother’s roommate reported that

      Mother was hearing voices and made statements about “sacrificing” V.R. or her

      roommate. Tr. p. 13. Mother denied making the statements. V.R. was removed

      from Mother’s home and placed in relative care.


[7]   The same day, DCS filed a petition alleging that V.R. was a CHINS pursuant to

      Indiana Code section 31-34-1-1. DCS alleged that V.R. was a victim of neglect

      due to Mother’s methamphetamine use and her untreated mental illness.

      Mother was no longer taking her prescribed medications for her mental illness

      and was not participating in therapy. In 2016, V.R. had previously been

      adjudicated a CHINS because of Mother’s methamphetamine use and mental

      instability.


[8]   After an initial hearing held on November 27, 2019, the trial court ordered V.R.

      to be placed with relatives. At a family team meeting on December 17, 2019,

      Mother admitted to using methamphetamine. Tr. p. 102. FCM Nigg

      recommended a substance abuse evaluation. He recommended that V.R.


      Court of Appeals of Indiana | Memorandum Decision 20A-JC-450 | July 30, 2020   Page 3 of 11
       should not be returned to Mother’s care until she completed substance abuse

       treatment. Tr. p. 103. Mother was also hospitalized for her mental illness for

       approximately two weeks in December 2019, after V.R. was removed from her

       care. After her release from the hospital, she continued to participate in

       treatment once a month with a psychiatrist and a counselor. Tr. p. 54. Mother

       is also taking prescribed medications to treat her mental health issues.


[9]    On January 15, 2020, the trial court held the CHINS fact-finding hearing.

       Mother testified that she suffers from schizophrenia. Tr. p. 53. When DCS

       began to question Mother about her substance abuse issues, Mother responded,

       “if we are going to focus on mental illness we can focus on that. Substance use

       is not an issue with me, nor has it been and if we need to, to not talk about that

       then I’m not going to answer.” Tr. p. 56.


[10]   FCM Nail testified that DCS received a report concerning Mother’s substance

       abuse, and that Mother had stood over her roommate and V.R. while holding a

       knife stating “the voices were telling her to do bad things.” Tr. p. 61. Nail

       testified that Mother appeared to be “[m]entally unstable” during Nail’s

       November 25, 2019, visit to Mother’s home. Tr. p. 62. Mother told Nail that

       people thought she “was crazy because she dressed up and carried a butcher

       knife around the house[.]” Tr. p. 63. Nail did not believe that V.R. should be

       returned to Mother’s care. Nail felt that Mother’s mental health was unstable,

       and that she needed to address her substance abuse issues. Tr. p. 66.




       Court of Appeals of Indiana | Memorandum Decision 20A-JC-450 | July 30, 2020   Page 4 of 11
[11]   The trial court allowed toxicologist, Dr. Donna Coy, to testify telephonically

       over Mother’s objection. Dr. Coy testified that Mother’s drug screens submitted

       on November 26, 2019, and December 11, 2019, were both positive for

       amphetamine and methamphetamine. Tr. p. 93.


[12]   After considering Mother’s mental health issues and substance abuse, the trial

       court concluded that V.R. was CHINS. Tr. pp. 127–29. Two weeks later, the

       trial court held the disposition hearing and issued its dispositional order.

       Mother was ordered to participate in visitation with V.R., maintain contact

       with DCS, participate in services recommended by DCS, complete a parenting

       assessment and a psychological evaluation, take all prescribed medications,

       submit to random drug screens, and complete a substance abuse assessment.

       Mother now appeals the CHINS adjudication.


                                            I. Telephonic Testimony

[13]   Mother argues that the trial court abused its discretion when it allowed a

       toxicology witness, Dr. Coy, to testify telephonically at the fact-finding hearing.

       DCS contends that, if the testimony was admitted in error, the error was

       harmless.


[14]   The admission of evidence is entrusted to the sound discretion of the trial court.

       In re B.H., 989 N.E.2d 355, 360 (Ind. Ct. App. 2013). We will find an abuse of

       discretion only where the trial court’s decision is against the logic and effect of

       the facts and circumstances before the court. Id. But not all error is reversible.

       Id. The improper admission of evidence is harmless error when the judgment is


       Court of Appeals of Indiana | Memorandum Decision 20A-JC-450 | July 30, 2020   Page 5 of 11
       supported by substantial independent evidence to satisfy the reviewing court

       that there is no substantial likelihood that the questioned evidence contributed

       to the judgment. Id.


[15]   Administrative Rule 14(B) provides guidelines for the admission of telephonic

       testimony in a CHINS fact-finding hearing. A motion for telephonic testimony

       must be served not less than thirty days before the date specified for the fact-

       finding hearing. Admin. R. 14(B). DCS admits that its motion was filed only

       twenty-six days before the scheduled fact-finding hearing. Appellee’s Br. at 22.

       The trial court’s order granting DCS’s motion to present telephonic testimony

       also did not include specific findings as required by Administrative Rule 14(B).


[16]   Therefore, the trial court abused its discretion when it admitted Dr. Coy’s

       telephonic testimony without meeting the requirements of Administrative Rule

       14(B). DCS argues that the error is harmless because Dr. Coy’s testimony

       concerning the test results of Mother’s drug screens was cumulative of other

       properly admitted testimony.


[17]   Dr. Coy testified that Mother’s November 26 and December 11, 2019, drug

       screens were positive for amphetamine and methamphetamine. Tr. p. 93. FCM

       Nail testified Mother admitted to methamphetamine use during the initial

       investigation in November 2019. Tr. pp. 62, 68. Mother told the case manager

       that she would test positive for methamphetamine. She also told Nail that she

       sprayed hairspray on methamphetamine before ingesting it. Tr. p. 62. She

       indicated that her methamphetamine use did affect her ability to parent V.R.


       Court of Appeals of Indiana | Memorandum Decision 20A-JC-450 | July 30, 2020   Page 6 of 11
       Tr. p. 62. At a team meeting on December 17, 2019, Mother told FCM Nigg

       that she had used methamphetamine recently. Tr. p. 102.


[18]   Error in the admission of evidence is harmless “if the erroneously admitted

       evidence was cumulative of other evidence appropriately admitted.” In re S.W.,

       920 N.E.2d 783, 788 (Ind. Ct. App. 2010). Dr. Coy’s testimony concerning

       Mother’s drug screen results was cumulative of Mother’s admissions to the

       family case managers that she used methamphetamine in November and

       December 2019. For this reason, the trial court did not commit reversible error

       when it allowed Dr. Coy’s telephonic testimony.


                                             II. Sufficient Evidence

[19]   Mother argues that DCS failed to prove that V.R. was endangered or that the

       coercive intervention of the court was necessary. It is well-settled that


               [i]n all CHINS proceedings, the State must prove by a
               preponderance of the evidence that a child is a CHINS as defined
               by the juvenile code. When reviewing a CHINS adjudication, we
               do not reweigh evidence or judge witness credibility and will
               reverse a determination only if the decision was clearly
               erroneous. A decision is clearly erroneous if the record facts do
               not support the findings or if it applies the wrong legal standard
               to properly found facts.


       V.B. v. Ind. Dep’t of Child Servs., 124 N.E.3d 1201, 1208 (Ind. 2019) (citations

       and quotation marks omitted).




       Court of Appeals of Indiana | Memorandum Decision 20A-JC-450 | July 30, 2020   Page 7 of 11
[20]   DCS alleged that V.R. was a CHINS pursuant to Indiana Code section 31-34-1-

       1, which provides that a child under the age of eighteen is a CHINS under the

       following circumstances:


               (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;

                    (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

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


[21]   “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 difficulty in meeting a child’s

       needs.’” J.B. v. Ind. Dep’t of Child Servs., 2 N.E.3d 1283, 1287 (Ind. 2014)

       (quoting Lake Cty. Div. of Fam. & Child. Servs. v. Charlton, 631 N.E.2d 526, 528

       (Ind. Ct. App. 1994)). When considering this requirement, “courts should

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

       it is heard.” Gr.J. v. Ind. Dep’t of Child Servs., 68 N.E.3d 574, 580 (Ind. 2017)

       Court of Appeals of Indiana | Memorandum Decision 20A-JC-450 | July 30, 2020    Page 8 of 11
       (quotations omitted). “Doing so avoids punishing parents for past mistakes

       when they have already corrected them.” Id. at 581.


[22]   Mother argues that V.R. was never endangered because she “was not present

       during the [M]other’s mental situations or substance abuse.” Appellant’s Br. at

       6. Mother claims that case manager Nail “made a number of uncorroborated

       fantastical statements about her initial interview with” Mother.2 Id. at 7. Mother

       admits her struggles with mental illness but notes that she participated in mental

       health treatment in December 2019 after V.R. was removed from her care.


[23]   After reviewing the testimony of the family case managers and Mother’s

       testimony, the trial court was not convinced that Mother’s mental health

       condition was stable. The trial court acknowledged that V.R. was with her

       grandmother on November 25, 2019, when DCS investigated the initial report

       concerning Mother’s mental health and drug use. But the court was concerned

       that returning V.R. to Mother’s home would endanger V.R. because Mother

       required hospitalization for her mental illness in December 2019, and Mother

       refused to address her substance abuse issues. The trial court stated, “I do not

       feel comfortable in [] letting somebody who is using methamphetamine and




       2
         Contrary to Mother’s claim, family case manager Nail’s testimony related Mother’s statements to her
       during DCS’s initial November 25, 2019, investigation. With her own testimony, Mother attempted to argue
       that her statements to Nail concerning dressing up like a clown and carrying a butcher knife were
       misconstrued. It was within the trial court’s discretion to weigh Nail’s recollection of their initial
       conversation against Mother’s explanation. See In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012).

       Court of Appeals of Indiana | Memorandum Decision 20A-JC-450 | July 30, 2020                 Page 9 of 11
       suffering from mental illness making decisions” about when it is safe for V.R. to

       be in Mother’s home. Tr. p. 128.


[24]   The trial court also found that Mother was resistant to services, and therefore, it

       “is necessary for the department to intervene and to get services to the family

       unit so that we can reunite the family[.]” Id. Given the evidence that Mother

       hears voices and made statements about sacrificing V.R. or her roommate, see

       Tr. p. 13, the court was concerned for V.R.’s safety if she was returned to

       Mother’s home. Tr. p. 129 (“The Court’s not going to wait around for

       something bad to happen when I get something like this[.]”); see also, In re R.P.,

       949 N.E.2d 395, 401 (Ind. Ct. App. 2011) (holding that the CHINS statute does

       not require the juvenile court and DCS to wait until a child is physically or

       emotionally harmed to intervene; rather, a child may be determined to be a

       CHINS if his or her physical or mental condition is endangered).


[25]   It was also reasonable for the trial court to infer that Mother used

       methamphetamine more than once.3 Mother admitted to using

       methamphetamine to case manger Nail on November 25, 2019. On December

       17, 2019, at a family team meeting, Mother again admitted that she used




       3
        For this reason, we are not persuaded by Mother’s citation to Perrine v. Marion County Office of Child Services,
       866 N.E.2d 269, 277 (Ind. Ct. App. 2007). In Perrine, our court held that a “single admitted use of
       methamphetamine, outside the presence of the child and without more, is insufficient to support a CHINS
       determination.” Id.

       Court of Appeals of Indiana | Memorandum Decision 20A-JC-450 | July 30, 2020                        Page 10 of 11
       methamphetamine. But at the fact-finding hearing, Mother denied

       methamphetamine use and refused to discuss her substance abuse issues.


[26]   Mother cites to her own her testimony to support her argument that V.R. is not

       a CHINS. But it is not our role to reweigh the evidence and the credibility of

       the witnesses. See In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012); see also Steele-

       Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (explaining that appellate courts

       grant latitude and deference to trial courts in family law matters). The trial

       court was understandably concerned that Mother’s refusal to acknowledge and

       receive treatment for her substance abuse issues, combined with Mother’s

       failure to consistently treat her mental illness, seriously endangers V.R.’s well-

       being.


[27]   For all of these reasons, we conclude that DCS proved by a preponderance of

       the evidence that V.R. is a CHINS pursuant to Indiana Code section 31-34-1-1.


                                                  Conclusion
[28]   The trial court’s error in admitting Dr. Coy’s telephonic testimony was

       harmless. And DCS proved by a preponderance of the evidence that V.R. is a

       CHINS. We therefore affirm the trial court’s order adjudicating V.R. a CHINS.


[29]   Affirmed.


       Bradford, C.J., and Najam, J, concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JC-450 | July 30, 2020   Page 11 of 11
