MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Nov 15 2018, 10:21 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
Daniel G. Foote                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Katherine A. Cornelius
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Matter of K.J. and J.J.,                       November 15, 2018
Minor Children, and J.J.,                                Court of Appeals Case No.
Mother,                                                  18A-JC-699
Appellant-Respondent,                                    Appeal from the Marion Superior
                                                         Court
        v.                                               The Honorable Marilyn A.
                                                         Moores, Judge
The Indiana Department of                                The Honorable Heather Welch,
Child Services,                                          Special Judge
Appellee-Petitioner.                                     Trial Court Cause Nos.
                                                         49D09-1707-JC-2391
                                                         49D09-1707-JC-2392



Brown, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018                Page 1 of 23
[1]   J.J. (“Mother”) appeals the trial court’s order determining that K.J. and J.J. (the

      “Children”) are children in need of services (“CHINS”). Mother raises two

      issues which we consolidate and restate as whether the evidence is sufficient to

      support the court’s determination that the Children are CHINS. We affirm.


                                         Facts and Procedural History

[2]   On June 12, 2016, Mother gave birth to K.J. On June 29, 2017, this Court

      issued an opinion reversing the CHINS adjudication of K.J. See In re Matter of

      K.S., 78 N.E.3d 740, 742 (Ind. Ct. App. 2017).1 We stated:


               Mother specifically contends that DCS failed to prove by a
               preponderance of the evidence that [K.J.’s] physical or mental
               condition was seriously impaired or seriously endangered as a
               result of Mother’s inability, refusal, or neglect to supply [K.J.]
               with necessary food, clothing, shelter, medical care, education, or
               supervision. We agree.

               As set forth in the relevant CHINS statute, it is DCS’s burden to
               prove that a parent’s actions or inactions have seriously
               endangered her child and that the child’s specific needs have not
               been met. The trial court adjudicated [K.J.] to be a CHINS after
               concluding that Mother used marijuana and did not have stable
               housing. As to the first finding, Mother admitted that she had
               used marijuana two months before [K.J.’s] birth to increase her
               appetite during pregnancy. However, there is no evidence
               showing how, specifically, Mother’s use of marijuana two
               months prior to giving birth seriously impaired or seriously
               endangered [K.J.]. DCS presented no evidence that he tested
               positive for marijuana, or, even if he did, how a positive


      1
        In In re Matter of K.S., K.J. was referred to as K.S. On August 16, 2017, this Court’s opinion in In re Matter
      of K.S., 78 N.E.3d 740, was certified.

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018                     Page 2 of 23
              marijuana test would have or did endanger him. See In the Matter
              of S.M., 45 N.E.3d 1252, 1255-56 (Ind. Ct. App. 2015)
              (concluding that there was no evidence presented that infant
              H.G. was endangered when he was born with marijuana-positive
              meconium). In fact, testimony at the hearing revealed that
              during his first days of life, [K.J.] was “feeding well” and that
              there was nothing other to note. (Tr. 25). During supervised
              visits with [K.J.] shortly after his birth, Mother was engaged and
              loving and “did everything you expected a mother to do.” (Tr.
              53). At the time of the fact-finding hearing, [K.J.’s] foster mother
              testified that he was developing well and meeting his milestones.

              As to the second finding, DCS presented absolutely no evidence
              that Mother did not have stable housing. Rather, our review of
              the evidence reveals that within twenty-four hours of [K.J.’s]
              birth, Mother told FCM Johnson that she and her son planned to
              live with her cousin when they were discharged from the
              hospital. Mother’s testimony at the fact-finding hearing
              confirmed that Mother had moved in with her cousin and had
              lived there for several months. Mother’s statement to Case
              Manager Simpson that she felt that she “wasn’t really wanted” at
              her cousin’s house does not support the juvenile court’s finding
              that Mother did not have stable housing. (Tr. 48). Although the
              trial court may have been concerned that at some point, Mother
              and [K.J.] would be asked to move out of Mother’s cousin’s
              house, at the time of the fact-finding hearing, this had not
              happened. See S.M. (explaining that future concerns rather than
              present facts are not enough to support a CHINS adjudication).
              Based upon the totality of this evidence, there is insufficient
              evidence to support the CHINS adjudication.


      Id. at 745.


[3]   On July 13, 2017, Mother gave birth to J.J. On July 24, 2017, the Indiana

      Department of Child Services (“DCS”) filed a petition alleging that the


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018   Page 3 of 23
      Children were CHINS based in part upon Mother’s failure to provide them

      with a safe and appropriate living environment free from substance abuse. That

      same day, the court held an initial hearing and ordered the continued removal

      of K.J. from Mother’s care, and placement of J.J. with Mother in home

      contingent upon her participation in a substance abuse assessment, home based

      case management, home based therapy, and random screens and following all

      recommendations. The court ordered that Mother have no less than six hours

      per week of supervised parenting time with K.J.


[4]   On September 6, 2017, the trial court held a pretrial conference, scheduled an

      adjudication hearing for November 6, 2017, and ordered Mother to submit to a

      drug screen within forty-eight hours. On September 8, 2017, Mother filed a

      Motion to Dismiss or, in the Alternative, Motion for Immediate Temporary

      Trial In-Home Visitation or Relative Care. She argued that the case should be

      dismissed based upon this Court’s previous opinion reversing the CHINS

      adjudication of K.J., res judicata, and the allegations in DCS’s petition. In the

      alternative, she requested that the court order immediate temporary trial in-

      home visitation with K.J. That same day, the court entered an order indicating

      that it would take the motion under advisement until the September 19, 2017

      hearing. On September 15, 2017, DCS filed a request for removal of J.J. from

      in-home placement with Mother, objected to Mother’s request for dismissal,

      and objected to immediate placement of K.J. in home with Mother.


[5]   On September 19, 2017, the court held a hearing and entered an Order of

      Detention with respect to J.J. finding that it was in the best interests of the child

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018   Page 4 of 23
      to be removed from the home environment, and that remaining in the home

      would be contrary to the child’s welfare because of: an inability, refusal or

      neglect to provide shelter, care, and/or supervision; the child needing

      protection that cannot be provided in the home; Mother’s continued use of

      marijuana prior to and following this child’s birth; Mother’s instability of

      housing; Mother’s lack of knowledge as to where [J.J.] is physically at this time;

      Mother’s failure to participate in court ordered services designed to assure the

      child’s safety; and Mother’s lack of communication with DCS, the guardian ad

      litem, and service providers. The court ordered Mother to relinquish J.J. to

      DCS custody and also denied her motion to dismiss. It ordered her to

      participate in random drug screens, a substance abuse assessment, home based

      case management, home based therapy, and supervised parenting time.


[6]   On November 6, the court held a hearing. Family Case Manager Dermita

      Johnson (“FCM Johnson”) testified that she came into contact with Mother on

      July 14, 2017, at Community Hospital when J.J. was one or two days old.

      FCM Johnson later went to Mother’s home where Mother informed her that

      she knowingly, while pregnant, smoked marijuana every other day. She

      testified that she attended a child and family team meeting on July 31, 2017,

      which was a date confirmed by Mother, but Mother did not attend.


[7]   Carol Cliff, a visit supervisor and parent aid, testified that she received a referral

      in July for supervised visits between K.J. and Mother. She testified that it was

      initially “a little hard” to contact Mother, but eventually developed a schedule

      with Mother’s participation. Transcript Volume II at 54. She testified that the

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018   Page 5 of 23
      schedule did not work out well because Mother had a difficult time with

      transportation and that the only visit Mother had was when she provided

      transportation for her. For the following visit, Mother had stated that she had

      transportation to the visit, but she did not show up. For the next scheduled

      visit, Mother texted Cliff about a half hour before the visit to cancel it due to

      “her being exhausted from being up with the new baby.” Id. at 56. Cliff

      subsequently attempted to make contact with Mother by calling and texting but

      was unable to do so to proceed with other visits.


[8]   Bethany Crismore, a therapist, testified that she received a referral on August

      15, 2017, and was assigned to perform an intake with Mother to begin services.

      Crismore made eight phone calls and went to Mother’s apartment to attempt to

      meet her face to face, but Mother did not answer the door. Crismore testified

      that she connected with Mother on four phone calls, but Mother twice told her

      she was busy and asked if she could call her back, one time said she had a

      kidney infection and that she would call her back, and another time Mother did

      not “actually say anything” to her. Id. at 65. Crismore stated that Mother did

      not call her back, Mother did not complete an intake, and the referral was sent

      back on August 30, 2017.


[9]   Latrice Smith (“Smith”), a home based case manager, testified that she received

      a referral for Mother at the end of September for case management and

      supervised visits. She testified that she spoke with Mother in “maybe mid-

      September to schedule a visit,” but “[t]hat did not happen.” Id. at 69. She

      stated that she supervised eight visits between Mother and K.J. and J.J.

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018   Page 6 of 23
       beginning on September 19th. When asked about the visits, Smith testified that

       they never had any major incidents, there was “some lack in parenting” in

       being able to manage both children at the same time, and that K.J. walked off a

       couple of times in the parking lot because Mother struggled with the “logistics

       of getting both kids to the car.” Id. at 70-71. She also testified that K.J.

       wandered off in the visit area, and that she had to ask Mother to go get K.J.

       “maybe at least four times.” Id. at 72.


[10]   Smith also testified that she provided transportation to Mother and picked her

       up “from a couple of motels and from a house – apartment.” Id. at 74. Mother

       told her that she was having issues paying for the motel and asked to borrow

       some money. She testified that she made a plan to meet Mother two times per

       week regarding employment, housing, and parenting skills, but she met with

       her only once in six weeks because Mother cancelled a number of meetings due

       to job interviews “or something like that.” Id. at 78. Smith testified that there

       were some “no call, no shows” with respect to visits with the Children and that

       one visit ended early so that Mother could make sure she entered the home

       where she was staying. Id. at 78. On cross-examination by the guardian ad

       litem’s counsel, Smith stated that she reduced the available visits from six hours

       to three hours because Mother was having issues making it both days for six

       hours.


[11]   Brittany Smith (“Brittany”), a home based case management service provider,

       testified that she received a referral for Mother on October 13, 2017, contacted

       Mother, and scheduled an intake for October 18th. She stated that she

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018   Page 7 of 23
       informed Mother that she could meet her at Mother’s home, Mother told her

       that was not possible, and they scheduled to meet at a local library. Brittany

       went to the library and called Mother and Mother stated that she “wasn’t going

       to be able to get there right away because her ride had something wrong with

       her car and had to get it fixed.” Id. at 108. They rescheduled for October 23rd,

       but Mother sent Brittany a text message that morning saying that she could not

       obtain a ride. Brittany offered to meet Mother where she was, but Mother said

       “that wasn’t possible.” Id. They rescheduled for the next day, but Mother

       again said she “didn’t have a ride to be able to meet,” Brittany told her that she

       could meet Mother where she was, and Mother said she was at her cousin’s

       home and her cousin did not have furniture yet. Brittany told her that was fine,

       but Mother declined to meet with her. Brittany scheduled a meeting for

       October 27th and told Mother she would have to close out the referral if Mother

       cancelled, Mother expressed understanding, and Brittany was unable to reach

       Mother on the day of the appointment.


[12]   Taylor Yeskie, a home based caseworker and visitation facilitator, testified that

       she was assigned to Mother in March 2017 and provided transportation for

       prenatal doctor appointments and trips to the pharmacy, work, and court. She

       testified that Mother told her that she would screen positive for marijuana and

       that she used marijuana in order to have an appetite. Yeskie stated that when

       Mother picked out chips and a drink at a gas station, Yeskie told her that she

       could get peanut butter and bread that would last her longer than just that

       evening because Mother was complaining that she was not making enough


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018   Page 8 of 23
       money to eat. Mother twice “no showed on” Yeskie, and Yeskie subsequently

       “basically just did the transportation to and from wherever [Mother] needed.”

       Id. at 119.


[13]   Randi Turner, a home based caseworker, testified that he was Mother’s

       caseworker from June until August 2017, and that he saw Mother once a week

       in the beginning but “it just kind of died off.” Id. at 128. He stated that he

       made efforts to contact Mother but would receive no response and closed the

       referral.


[14]   On November 9, 2017, the court continued with the hearing. Cindy

       Strietelmeier, an employee of Families First who processed referrals from DCS

       and initiated the first appointments for all clients, testified that she received a

       referral from DCS for Mother for a substance abuse assessment and contacted

       her on June 29, 2017. Strietelmeier informed Mother that assessments can

       occur anytime between 10:00 a.m. and 3:00 p.m. on Mondays and Thursdays.

       Mother agreed that she would do a walk in on one of those days but never

       showed up.


[15]   Guardian ad litem Greg Huff (“GAL Huff”) testified that he was assigned to

       the Children on July 24, 2017. He stated that he met with Mother on August 2,

       2017, at the Beech Hollow address,2 that Mother admitted she tested positive

       for marijuana at the initial hearing, that she stated she was “possibly interested



       2
           At some points in the transcript, Beech Hollow is spelled Beech Hallow.


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018   Page 9 of 23
       in leaving [K.J.] where he was in the foster home because she hadn’t seen him

       in so long . . . as long as she could keep [J.J.] with her,” and that she was in her

       apartment “for a while but she wasn’t going to be there indefinitely.”

       Transcript Volume III at 17. GAL Huff testified that he was somewhat

       concerned with J.J. remaining in the home and that he attempted to contact

       Mother to see J.J. but was unsuccessful in reaching her at Beech Hollow or

       elsewhere. He stated his agreement that Mother complete services related to

       her stability and substance abuse “[b]ecause it’s necessary for the children” and

       “[t]hey need the stability of a home and a mother that is going to be able to be

       there that does not have a history of homelessness and concerns regarding

       substance abuse.” Id. at 28. When asked why it was important that Mother

       verify her sobriety, he answered: “Because if she’s – if she can do that, that’s a

       positive. But in this situation, I don’t see that that’s happening at this time

       because of the usage of the marijuana that she had been doing quite a bit of.”

       Id. at 34-35. He testified that he did not believe the Children would be safe with

       Mother due to her homelessness and marijuana usage. He also testified that

       Mother’s inconsistent pattern of visitation with the Children was a concern.


[16]   Mother testified that she was living at the same Beech Hollow address and that

       she gave an address on Byrum Avenue in K.J.’s case because that was where

       she was staying when K.J. came home from the hospital. She testified that her

       case manager picked her up at different hotels because her friend was staying

       there. She testified that she used marijuana when she was pregnant with K.J.

       and J.J., and that she used marijuana a couple of months after J.J. was born to


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018   Page 10 of 23
       calm her nerves. When asked if J.J. was with someone else for a day or part of

       a day, she answered: “She didn’t never go with nobody.” Id. at 63. When

       asked “[e]xcept for the day you came to court,” Mother answered affirmatively.

       Id. When asked “[a]nd she was with her father,” Mother answered: “Yeah, but

       the only reason I did that was because I had to take the bus.” Id. at 64. She

       testified that she would not leave her child in the care of someone who uses

       marijuana because she “wouldn’t leave my child with nobody.” Id. The

       following exchange then occurred:


               Q. Okay, but why wouldn’t you want – would you want
               somebody who’s high on marijuana taking care of your kids?

               A. What do you mean? I don’t be around nobody that smokes.
               My roommate don’t smoke.

               Q. My question is, would you – if you knew the caregiver, if you
               knew who you were going to have babysitting your child, if you
               knew they were using marijuana, would you allow them to watch
               your child?

               A. Yeah, there’s nothing wrong with marijuana. They prescribe
               it in California. It’s free, like there’s nothing wrong with
               marijuana. You’re not going to hurt a child off of smoking
               marijuana. I’m sorry. I could see if it was heroin or all them
               other drugs, then no – hell no. I’m not stupid.


       Id.


[17]   Mother testified that she did not have a job, that she receives food stamps and

       TANF, she does not pay rent, and that she pays for only “lights.” Id. at 76.

       When asked why she frequently missed visits with the Children, she stated:


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018   Page 11 of 23
       “Well, a couple of times I had interviews. A couple of times it was because of

       the caseworker – because of the caseworker but (indiscernible).” Id. at 77.

       When discussing marijuana, the guardian ad litem’s attorney asked mother,

       “And [J.J.] was in your care when you used?” Id. at 80. Mother answered:

       “Yes.” Id. She testified that she obtains her marijuana “from people,” that she

       does not buy marijuana, and that people who are not her friends give it to her.

       Id. She stated that when she goes out to obtain the marijuana she leaves J.J.

       with her roommate. She testified that J.J.’s father was Isaiah but she did not

       remember his last name and that she did not know K.J.’s father. She stated that

       she was in a relationship with a person who she considers her boyfriend but she

       did not know his name, where he lived, whether he had a job, or the names of

       his children. Mother denied having sex in exchange for money, marijuana, or

       housing.


[18]   On November 16, 2017, the court continued with the hearing. Angela Snyder,

       a registered nurse, testified that she discussed Mother’s substance abuse history

       with her and that Mother said she had smoked marijuana but not in a long

       time. She testified that Mother did not want to talk to the case worker at the

       hospital or anyone in DCS and was “very upset.” Transcript Volume IV at 37.


[19]   Smith, the home based case manager, testified that a visitation was scheduled at

       noon on November 10th, she picked up the children and arrived at the office,

       but Mother did not show. She testified that she texted Mother but did not

       receive a timely response.



       Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018   Page 12 of 23
[20]   Family Case Manager Nokwakhe Fuyana (“FCM Fuyana”) testified that she

       was assigned to work with K.J. in December 2016. Between then and March

       2017, FCM Fuyana attempted to communicate with Mother but Mother would

       not respond to any of her emails. After FCM Fuyana eventually received

       Mother’s phone number, Mother said that she had no reason to speak with

       DCS and later stated that she was busy and could not talk to her on the phone.

       Mother also did not respond to text messages. FCM Fuyana testified that she

       discussed drug screens with Mother in March 2017 and that Mother refused to

       take a drug screen. She testified that she attended the June 8, 2017 hearing, that

       she had a discussion with Mother on that date about services and asked Mother

       to screen before and after the hearing, and Mother refused. She also testified

       that Mother refused to screen after the July 25th hearing. She stated that

       Mother participated in choosing a date for a team meeting, the meeting was

       scheduled for July 31st, she called Mother prior to the meeting but Mother

       would not answer her phone, she texted Mother, and Mother told her that she

       was babysitting and trying to make some income and she would not make it to

       the meeting. Mother also failed to attend a subsequent team meeting and did

       not respond to FCM Fuyana’s calls or text messages. She testified that Mother

       refused to perform a screen after the November 9th hearing. FCM Fuyana

       recommended continued placement of K.J. and J.J. with the current foster

       parents and that services continue for Mother including home based therapy,

       home based casework, substance use assessment, and supervised visitation.




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018   Page 13 of 23
[21]   FCM Fuyana testified that she had a BSA in psychology and sociology, a BSA

       Honors in social development, and went through Core Training from June 2015

       until October 2015. She testified that drug use by a parent is a safety concern

       and “[t]here is more concern if the child is very young because the child cannot

       make decisions – safety decisions on their own.” Id. at 88. She also testified

       that she was recommending home based case management because it assists

       clients with maintaining stability in housing. When asked what caused her to

       request that J.J. be removed from Mother in September, she stated:


               At that time I had made numerous attempts – um – to see [J.J.]
               at the home. And one of my duties as a family case manager is
               to have face to face contact with the child in the home – uh – to
               determine if the child is safe in the home. Is the child in a secure
               environment. If the child is [in] a stable environment. If the
               environment has all the needed utilities. And with [J.J.] I was
               not able to do that. Um – with [J.J.] I was not able to also
               establish if the child was in a drug free environment.


       Id. at 94. She indicated that she was concerned for J.J.’s safety at the time she

       recommended her removal from Mother’s care. When asked why, she

       answered:


               Because . . . we had established – um – [Mother’s] substance
               abuse – continued substance use. And we have not found a
               home where [Mother] was currently living with the child. And I
               made repeated attempts – um – to get to see the child in the home
               or let alone just to see the child. Um – even at the date of
               removal I was not able to see the child at the day of removal. It
               had to be another DCS worker because [Mother] would not avail
               the child. So, it’s a cause of safety concern for DCS not to be
               able to have access to the child as in – as in when needed.
       Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018   Page 14 of 23
       Id. at 97.


[22]   On February 8, 2018, the court entered a nineteen-page order adjudicating the

       Children as CHINS. The court found that Mother had used marijuana, had

       unstable housing, was not able to meet her own basic needs or those of the

       Children, and lacked the parenting skills necessary to keep the Children safe.

       The court also found that Mother’s inconsistency with visits was harmful to her

       relationship with the Children, that Mother would not participate in services

       without the coercive intervention of the court, that Mother failed to comply

       with court orders, that her continued drug use was detrimental to the health and

       well-being of her children, and that Mother’s lack of employment causes

       concern about her ability to provide food, clothing, and shelter for the Children.

       The court concluded that the Children were both CHINS “because they are

       victims of neglect as pursuant to I.C. § 31-34-1-1 as evidence[d] by Mother’s

       unstable housing, ongoing substance abuse during pregnancy and after, and

       failure to engage in the services designed to allow the children to remain in her

       care.” Appellant’s Appendix Volume II at 202. The court also stated: “It was

       clear from Mother’s demeanor during the three-day hearing that she did not

       take this hearing seriously and did not take parenting small children seriously.

       She would roll her eyes at the testimony of witnesses she did not like, make

       other inappropriate faces, and have outbursts during the trial.” Id. at 203-204.




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018   Page 15 of 23
[23]   On March 1, 2018, the court held a dispositional hearing at which Mother was

       not present and her substitute counsel did not know where she was.3 FCM

       Fuyana testified that she requested random drug screens and a substance abuse

       assessment because Mother had admitted to drug use before, during, and after

       pregnancies of K.J. and J.J. She testified that Mother had shown instability in

       terms of housing, that “nobody has actually made any contact with her in the

       said address that she gave us,” that Mother has “been known to move from

       hotel to hotel,” that she has shown “instability for transportation issues,” has

       issues with her financial situation, and has shown that she is not able to manage

       herself. Transcript Volume V at 15. She also testified that Mother had not

       voluntarily participated in any services. She indicated that Mother had not

       made any progress in alleviating her concerns with Mother’s housing since the

       November 16, 2017 hearing. On cross-examination by Mother’s counsel, she

       testified that Mother told her where she was living and that she went to the

       address only to find a person who kept insisting that Mother does not reside

       there. On redirect, FCM Fuyana testified that Mother has missed and has

       refused to take drug screens.


[24]   Mother’s counsel requested that the court bifurcate the hearing so that Mother

       could be present. Counsel for the guardian ad litem and DCS objected. The

       court called Mother’s cell phone and then FCM Fuyana called Mother’s cell




       3
        Rachel Johnson stated at the beginning of the hearing that she was filling in for Mother’s counsel that
       morning.

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018                 Page 16 of 23
       phone, but there was no answer. The court clarified that FCM Fuyana

       reminded Mother of the date of the hearing, and Mother’s substitute counsel

       indicated that she knew Mother’s counsel and Mother had been in contact

       about the hearing. The court stated in part:


               [Mother] just has this history of – um – not appearing and then
               kind of like today, I anticipated she wasn’t gonna answer. Cause
               they then do the same thing, right, Ms. – and you then call her
               and try to say hey, we – we wanna give you a ride. We wanna
               make this happen, we wanna help you. And so – uh – she’s just
               elected not to participate.


       Id. at 42-43.


[25]   The court also stated: “I watched [Mother] very closely because she – she had

       several outbursts when other people were on the witness stand. Um – when she

       was on [the] witness stand her demeanor I found to be – uh . . . I didn’t believe

       everything she was telling the Court and so I had concerns.” Id. at 53. The

       court also stated:


               [Mother] admitted that when she was staying for a short time at
               the Beech [Hollow] address that the lady – uh – who she was
               staying with – she let the lady hold her baby. She went out and
               she – uh – smoked marijuana and she came back and cared for
               the baby. And this is within – um – August or September. The
               baby was born in July. The baby was little. Um – and she quite
               frankly and I think she – she was very honest with the Court.
               She didn’t see why that’s a problem. She thought it was okay to
               use controlled substances or alcohol and then care for a baby.
               She didn’t think it was an issue. She can’t understand why the
               Court would find that to be an issue.


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018   Page 17 of 23
       Id. at 55.


[26]   On March 7, 2018, the court entered a dispositional order, incorporated its

       February 2018 order, found that Mother does not have stable housing or

       employment, uses marijuana on a regular basis and has done so while pregnant

       with both children and while caring for J.J., demonstrated erratic and unusual

       behavior, refused to take drug screens, and elected to not appear in court,

       cooperate with DCS, or exercise regular parenting time.


                                                   Discussion

[27]   The issue is whether sufficient evidence supports the trial court’s determination

       of the Children’s status as CHINS. 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. “We will reverse a CHINS determination only if it was

       clearly erroneous.” In re D.J. v. Indiana Dep’t of Child Servs., 68 N.E.3d 574, 578

       (Ind. 2017). 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. Id.


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018   Page 18 of 23
[28]   Ind. Code § 31-34-1-1 provides:


               A child is a child in need of services if before the child becomes
               eighteen (18) years of age:

               (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.


[29]   The CHINS statute, however, does not require that a court wait until a tragedy

       occurs to intervene. In re A.H., 913 N.E.2d 303, 306 (Ind. Ct. App. 2009).

       Rather, a child is a CHINS when he or she is endangered by parental action or

       inaction. Id. The purpose of a CHINS adjudication is not to punish the

       parents, but to protect the child. Id.


[30]   Mother argues that the trial court’s findings regarding her use of marijuana are

       insufficient to support the CHINS determination. She argues that she testified

       that she never used marijuana around the Children and points out that

       possession of small amounts of marijuana is only a class B misdemeanor in

       Indiana, and other states have laws legalizing marijuana in some form. Mother

       asserts that the court’s findings regarding her housing are insufficient to support

       the CHINS determination because she testified she had never been homeless.

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018   Page 19 of 23
       She argues that the court’s findings regarding her employment, financial

       situation, supervision, parenting skills, demeanor, and compliance with services

       are not supported by the evidence and are insufficient to support the CHINS

       determination.


[31]   With respect to Mother’s marijuana use, the record reveals that FCM Johnson

       testified that Mother informed her that she smoked marijuana every other day

       and that caseworker Yeskie testified that Mother told her that she would screen

       positive for marijuana. GAL Huff testified that Mother admitted she tested

       positive for marijuana. GAL Huff also indicated that it was important that a

       parent ensure sobriety before he recommends placement of the child back into

       the home and that this is especially true when a baby is involved. He testified

       that he did not believe the Children would be safe with Mother at this point

       “[b]ecause I think that the situation of the fact that [what I] call homelessness

       and the fact of the intense use of marijuana . . . .” Transcript Volume III at 36.

       FCM Fuyana testified that drug use by a parent is a safety concern, especially

       for a baby. Mother testified that she used marijuana, and the guardian ad

       litem’s counsel asked Mother, “And [J.J.] was in your care when you used?”

       Id. at 80. Mother answered: “Yes.” Id. She also testified that she goes out and

       meets people to obtain marijuana and leaves J.J. with her roommate.


[32]   To the extent Mother challenges the court’s findings and conclusion regarding

       her housing instability, the record reveals that Indianapolis Metropolitan Police

       Officer Ivan Ivanov testified that he was dispatched to Motel Super 8 on May

       27, 2016, and came into contact with Mother who was staying there and was a

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018   Page 20 of 23
victim of a robbery. Case manager Smith testified that she provided

transportation to Mother and picked her up “from a couple of motels and from

a house – apartment.” Transcript Volume II at 74. Brittany, a home based case

management service provider, testified that Mother told her that meeting at

Mother’s home was not possible, Mother said she did not have transportation,

and Mother could not meet her at her cousin’s home where she was because her

cousin did not have furniture yet and thereafter declined to meet with Brittany.

GAL Huff testified that he became concerned that Mother was no longer living

at the Beech Hollow address with J.J., attempted to contact Mother to see J.J.,

was unsuccessful in reaching Mother, went back to Beech Hollow on

September 15th, and did not see Mother at the Beech Hollow address. He

testified that he tried to make phone calls and determine Mother’s location but

was unable to make contact with her. When asked why he agreed with the

court’s order that Mother complete certain services, GAL Huff answered:


        Because I had a concern about what I would consider the
        homelessness and the substance abuse regarding the children.
        That has been one issue because the thing is, I had not been able
        to get a hold of [Mother]. It seems like she’s been somewhat
        evasive regarding from the beginning of this case and that is a
        concern because my child – my children that I deal with, need
        stability. That is one of the main reasons.


Id. at 33. While Mother testified that she was living at the same Beech Hollow

address, GAL Huff testified that he was confident that Mother was not living at

the Beech Hollow address when he left that address on September 15th and



Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018   Page 21 of 23
       FCM Fuyana testified that she made three attempts to visit Mother at the Beech

       Hollow address in September 2017.


[33]   As for Mother’s employment and financial situation, Mother testified that she

       did not have a job at the moment. Smith testified that Mother told her that she

       was having issues paying for the motel and asked to borrow some money.


[34]   With respect to her supervision and parenting skills, Smith, the home based

       case manager, testified that there was “some lack in parenting” being able to

       manage both children at the same time, that K.J. walked off a couple of times

       in the parking lot because Mother struggles with the “logistics of getting both

       kids to the car,” and that she had to ask Mother “maybe at least four times” to

       “go grab [K.J.] and see where he’s at.” Transcript Volume II at 70-72.


[35]   We note that Mother does not challenge the court’s findings relating to her

       failure to comply with services. Rather, Mother asserts that it is not surprising

       that she showed little willingness to work with service providers given the

       history of her initial encounter “and the ongoing knowledge that any disclosure

       she makes to [DCS] or its contractors may be used against her and in support of

       removal of her children.” Appellant’s Brief at 38.


                                                   Conclusion

[36]   Based upon the evidence and testimony presented at the fact-finding hearing

       and in light of the unchallenged findings, we cannot say that the trial court’s

       findings of fact, conclusions, and judgment are clearly erroneous. The evidence

       supports the conclusion that the Children are CHINS.

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018   Page 22 of 23
[37]   For the foregoing reasons, we affirm the trial court’s conclusion that the

       Children are CHINS.


[38]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018   Page 23 of 23
