MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                    FILED
this Memorandum Decision shall not be                          Dec 05 2016, 8:35 am

regarded as precedent or cited before any                           CLERK
                                                                Indiana Supreme Court
court except for the purpose of                                    Court of Appeals
                                                                     and Tax Court
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mark K. Leeman                                          Gregory F. Zoeller
Leeman Law Offices                                      Attorney General of Indiana
Logansport, Indiana
                                                        Robert J. Henke
                                                        James D. Boyer
                                                        Deputy Attorneys General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of:                                       December 5, 2016
K.S. (Minor Child)                                      Court of Appeals Case No.
       Child in Need of Services                        09A04-1604-JC-872
and                                                     Appeal from the Cass Circuit
                                                        Court
C.S. (Father),
                                                        The Honorable Leo T. Burns, Jr.,
Appellant-Respondent,                                   Judge

        v.                                              Juvenile Court Cause No.
                                                        09C01-1601-JC-4

The Indiana Department of
Child Services,
Appellee-Petitioner.




Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 09A04-1604-JC-872 | December 5, 2016   Page 1 of 11
                                Case Summary and Issue
[1]   C.S. (“Father”) appeals the juvenile court’s adjudication of his child, K.S., as a

      child in need of services (“CHINS”). He raises two issues for our review, one

      of which we find dispositive: whether Father was deprived of due process.

      Concluding Father was deprived of due process, we reverse and remand with

      instructions.



                            Facts and Procedural History
[2]   In April 2013, C.H. (“Mother”) gave birth to twins, M.H. and B.H (“Twins”).

      Father is not the Twins’ legal father, but Father began acting in a custodial

      capacity around August 2013 when he and Mother began dating. Mother and

      Father then had a child, K.S., in July 2014. In November 2015, Father and

      Mother ended their relationship and the Twins and K.S. moved in with Father.


[3]   On December 23, 2015, Cass County Family Case Manager Josh Bault

      received a report Father and Mother neglected the children. Specifically, the

      report alleged instances of domestic violence, physical abuse of the children,

      drug use in the home, and drug use in the presence of the children. Bault then

      visited Father’s home. Father acknowledged he sometimes used a ruler to

      discipline his children, but Bault did not observe any signs of physical abuse to

      the children. In addition, Father admitted to periodically smoking marijuana.

      Bault also spoke with Mother by phone and Mother admitted to smoking

      marijuana. Father refused to submit to a drug screen and neither Mother nor

      Father gave Bault permission to screen the children for drugs. Ultimately,
      Court of Appeals of Indiana | Memorandum Decision 09A04-1604-JC-872 | December 5, 2016   Page 2 of 11
      Bault did not deem removal necessary and scheduled a meeting with Mother on

      January 5, 2016.


[4]   On January 5, 2016, Bault met with Father, Mother, and the children at

      Father’s home. Mother arrived smelling of alcohol and admitted to having a

      few beers prior to the meeting. Mother and the children submitted to an oral

      swab drug screening; Father declined. Although not clear from the record, it

      appears Department of Child Services (“DCS”) alleged the results of the drug

      screens indicated Mother and the children tested positive for

      tetrahydrocannabinol (“THC”), a metabolite of marijuana. All three children

      were immediately removed and DCS placed K.S. in foster care.


[5]   On January 8, 2016, DCS filed a petition alleging K.S. was a CHINS. Under a

      separate cause number, DCS also filed a petition alleging the Twins were

      CHINS. The juvenile court first held a fact-finding hearing with regard to the

      Twins and only Mother attended. Nothing pertaining to the Twins’ CHINS

      proceedings is included in the current record on appeal,1 but the record does

      note Mother admitted the Twins and K.S. were CHINS at the Twins’ fact-

      finding hearing.




      1
        Although not clear from the record, it appears DCS admitted evidence at this fact-finding hearing with
      regard to the results of Mother’s and the children’s drug screens. In addition, it further appears Bault testified
      as to some potential contamination of the children’s drug screens. Again, this evidence has not been
      included as a part of the current record on appeal.

      Court of Appeals of Indiana | Memorandum Decision 09A04-1604-JC-872 | December 5, 2016               Page 3 of 11
[6]   On February 17, 2016, the juvenile court held a fact-finding hearing regarding

      K.S., which both Mother and Father attended. At the beginning of the hearing,

      the juvenile court stated its intention to incorporate the records from the Twins’

      fact-finding hearing, namely to show Mother admitted K.S. is a CHINS:


                 [Juvenile Court:] With regard to [Mother], any objection if I
                 incorporated the records from [the Twins’ CHINS proceeding]
                 showing her admission . . . with regard to [K.S.]?
                 [Mother’s Counsel:] No, that would be fine, Judge.
                 [Juvenile Court:] [Father’s counsel], what does [Father] intend
                 to do with regard to the fact-finding with regard to [K.S.]?
                 [Father’s Counsel:] [Father] is in kind of an awkward place, he’s
                 not the custodial parent, there’s been never a judicial
                 determination of paternity, . . . he thinks the child is perfectly fine
                 with him, and wants her back, but I am not sure what his
                 standing is. He, he denies [K.S.] is in need of services still,
                 because he is perfectly able to do it. I’ve explained to him that
                 the DCS may not be able to place her there though because he’s
                 not the custodial parent nor has the judicial determination been
                 made that he is a parent.


      Transcript at 23-24. The juvenile court believed the testimony could establish

      paternity and proceeded with the fact-finding hearing.2


[7]   Father testified first and admitted to occasionally smoking marijuana. The

      following colloquy then occurred:


                 [DCS:] You don’t know how [the children] tested positive for
                 drugs?



      2
          The juvenile court concluded Father is K.S.’s legal father. The State does not challenge this conclusion.

      Court of Appeals of Indiana | Memorandum Decision 09A04-1604-JC-872 | December 5, 2016              Page 4 of 11
              [Father:] Yeah, I know how they tested positive.
              [DCS:] And how is that?
              [Father:] [Mother] touched the samples.
              [DCS:] And she had enough saliva on her hand for one of the
              drug screens?
              [Father:] Sweat, body fluids.
              [DCS:] And what about those screens she didn’t touch?
              [Father:] She touched every one of them.


      Id. at 27. At this point in the fact-finding hearing, no evidence regarding the

      drug screens had been admitted into evidence and no other discussions with

      Father regarding the drug screens occurred.


[8]   DCS then called Bault to testify as to his administration of the drug screens:

              [DCS:] [D]id you ask everyone present to submit to the drug
              screens?
              [Bault:] I did, and [Mother] stated she would. [Father] stated he
              would not, and [Mother] gave permission for the children to be
              screened as well.
              ***
              [DCS:] And what were the results of [Mother’s] drug screen?
              [Bault:] [Mother’s] drug screen was positive for THC, which is a
              metabolite of marijuana.
              [DCS:] And who, do you recall whose drug screen you
              administered next?
              [Bault:] Honestly, I don’t know. There were three children that
              we decided that we were going to administer to, huh, and
              children do take assistance, that is not abnormal, and it’s not also
              abnormal for children to fight the process because they don’t
              want a cotton swab stuck in their mouth. So none of those . . . I
              know we talked about [the administration of the tests] in the last
              hearing, but nothing abnormal happened other than the two
              things that were suggested . . . that one of the swabs did drop to
              the floor at one point during the process and one swab had to be
      Court of Appeals of Indiana | Memorandum Decision 09A04-1604-JC-872 | December 5, 2016   Page 5 of 11
              taken out of the mouth by the mother and placed into the test
              tube.
              [DCS:] And how many drug screens have [you] administered, if
              you, approximate?
              [Father’s Counsel:] Judge that in [sic] interesting, but I don’t
              think it is relevant, what’s relevant is what happened here; we’ve
              been over that ground several times already. I object to the
              repetitive testimony.
              ***
              [Juvenile Court:] Yeah, my, my inclination would be to overrule
              the objection, I think it could come in, my ultimate concern is I
              incorporated the records from [the Twins’ hearing], I did that
              because I was ahead of myself because I thought [Father] was in,
              I thought we were lining up for an admission, so to the extent
              that I’ve heard that testimony, unless there was a stipulation by
              the parties, the practice here in the court is . . . to at least have the
              testing agency testify, so if the ultimate goal is to get the results of
              the children in, I am tipping my hand, I am not going to rely on
              that evidence.


      Id. at 37-41. Bault never testified whether the children tested positive for drugs.

      In addition, it does not appear the parties stipulated to the admission of the

      results of the drug screens nor did a representative of the testing agency testify

      as to the results of the drug screens.


[9]   On February 18, 2016, the juvenile court adjudicated K.S. a CHINS.

      Specifically, the court made four findings in support of its conclusion: (1)

      Mother was under the influence of alcohol when she met with Bault, (2)

      Mother and children submitted to oral drug screens, (3) Father refused to

      submit to a drug screen but admitted to using marijuana, and (4) Mother and

      the children tested positive for THC. Following a dispositional hearing, the


      Court of Appeals of Indiana | Memorandum Decision 09A04-1604-JC-872 | December 5, 2016   Page 6 of 11
       juvenile court ordered Father to participate in services and further ordered

       K.S.’s continued placement in foster care. This appeal ensued.



                                  Discussion and Decision
                                             I. Due Process
[10]   Due process protections bar state action that deprives a person of life, liberty, or

       property without a fair proceeding. In re G.P., 4 N.E.3d 1158, 1165 (Ind. 2014).

       Due process protections at all stages of CHINS proceedings are “vital” because

       every CHINS proceeding has the potential to interfere with the rights of parents

       in the upbringing of their children. Id. Therefore, both CHINS proceedings

       and termination of parental rights proceedings “are deeply and obviously

       intertwined to the extent that an error in the former may flow into and infect

       the latter . . . .” Id. In determining whether a due process violation occurred in

       a CHINS proceeding, we balance the three factors laid out in Mathews v.

       Eldridge, 424 U.S. 319 (1976): “(1) the private interests affected by the

       proceeding; (2) the risk of error created by the State’s chosen procedure; and (3)

       the countervailing governmental interest supporting use of the challenged

       procedure.” Id. at 1165-66 (citations omitted). Ultimately, the resulting

       balance of these factors must provide parents in a CHINS proceeding “the

       opportunity to be heard at a meaningful time and in a meaningful manner.” Id.

       at 1166 (quoting Mathews, 424 U.S. at 333).




       Court of Appeals of Indiana | Memorandum Decision 09A04-1604-JC-872 | December 5, 2016   Page 7 of 11
                                             II. Drug Screens
[11]   Father argues he was deprived of due process when the juvenile court

       considered the results of the drug screens in adjudicating K.S. a CHINS.

       Specifically, Father claims the juvenile court did so after stating it would not

       consider those results and without giving Father a meaningful opportunity to

       contest the results.3 We agree.


[12]   Consistent with Mathews, we first acknowledge Father’s rights as a parent are

       clearly affected by the juvenile court’s adjudication of K.S. as a CHINS and her

       continued placement in foster care. See In re G.P., 4 N.E.3d at 1165 (“[E]very

       CHINS proceeding has the potential to interfere with the rights of parents in the

       upbringing of their children.”) (citation and internal quotation marks omitted).

       In addition, the State has a compelling interest in protecting the welfare of the

       children. In the Matter of E.M., 581 N.E.2d 948, 952 (Ind. Ct. App. 1991), trans.

       denied.


[13]   As to the risk of error, we note a parent must be permitted to view the evidence

       used to support the adjudication of his or her child as a CHINS and must be

       given an opportunity to respond to that evidence. In re Termination of Parent-

       Child Relationship of S.F., 883 N.E.2d 830, 836 (Ind. Ct. App. 2008); see also Ind.

       Code § 31-32-2-3(b) (entitling parents in CHINS proceedings to cross-examine




       3
        The State argues Father has waived his claims for failure to present a cogent argument pursuant to Indiana
       Appellate Rule 46(A)(8). We disagree and address the merits of Father’s claims.

       Court of Appeals of Indiana | Memorandum Decision 09A04-1604-JC-872 | December 5, 2016          Page 8 of 11
       witnesses, obtain evidence by compulsory process, and introduce evidence).

       Here, we take issue with the juvenile court’s procedure, not an improper action

       by the State. The juvenile court specifically stated it would not consider the

       results of the drug screens unless the parties stipulated to the admission of such

       evidence or a representative of the testing agency testified, neither of which

       occurred. Despite this, the juvenile court still considered the results of the drug

       screens in adjudicating K.S. a CHINS. We therefore conclude the juvenile

       court deprived Father of the opportunity to cross-examine Bault in regard to the

       drug screens or to offer his own evidence contradicting the results of the drug

       screens.


[14]   The State argues the juvenile court’s error was harmless because Father’s own

       testimony establishes the children tested positive for THC. We disagree. The

       State specifically asked Father whether he had knowledge of how the children

       tested positive for drugs, despite there being no evidence at that point in the

       proceeding showing the children had tested positive for drugs. Father

       acknowledged he knew how the children tested positive, claiming Mother had

       touched the samples and contaminated the cotton swabs. In addition, Father

       never acknowledged what drug the children may have tested positive for.

       Therefore, Father only stated he knew how the children tested positive for drugs

       and there is no evidence in the record showing the children did, in fact, test




       Court of Appeals of Indiana | Memorandum Decision 09A04-1604-JC-872 | December 5, 2016   Page 9 of 11
       positive for marijuana.4 As a result, we are not persuaded the juvenile court’s

       error is harmless.


[15]   In sum, the juvenile court explicitly stated it would not rely on the results of the

       drug screens and denied Father a meaningful opportunity to contest the results.

       We conclude Father was deprived of due process when the juvenile court then

       considered the results of the drug screens in adjudicating K.S. a CHINS.


                           III. Contested Fact-Finding Hearing
[16]   Father also argues he was deprived of due process when the juvenile court

       allegedly denied his right to a contested fact-finding hearing in regard to the

       Twins. Specifically, he contends he acted in a custodial capacity with regard to

       the Twins and therefore he was entitled to a fact-finding hearing as to the

       Twins. Father’s argument fails. It is clear from the record DCS filed separate

       petitions under separate cause numbers alleging the Twins and K.S. were

       CHINS and adjudicated the Twins as CHINS following a separate fact-finding

       hearing. Father now only appeals the juvenile court’s adjudication of K.S. as a




       4
         The State further contends evidence of the drug screen results is part of the record because the juvenile court
       incorporated the records from the Twins’ fact-finding hearing, which Father did not object to and failed to
       include as a part of this record. It is not clear the juvenile court incorporated any evidence pertaining to the
       drug screens because the court only incorporated the records for the purpose of showing Mother’s admission.
       Therefore, Father only failed to object to the incorporation of Mother’s admission. However, even assuming
       Father has waived this claim, we conclude the juvenile court’s error amounts to fundamental error. “In order
       for this court to reverse based on fundamental error, the error must have been a clearly blatant violation of
       basic and elementary principles, and the harm or potential for harm therefrom must be substantial and appear
       clearly and prospectively.” In re Involuntary Termination of Parent–Child Relationship of B.R., 875 N.E.2d 369,
       375 (Ind. Ct. App. 2007), trans. denied. Here, not only did the juvenile court consider the results of the drug
       screens after specifically stating it would not, it did so without giving Father the opportunity to respond. We
       conclude this is fundamental error.

       Court of Appeals of Indiana | Memorandum Decision 09A04-1604-JC-872 | December 5, 2016             Page 10 of 11
       CHINS. Therefore, we have nothing in the record to guide us in addressing

       Father’s argument with respect to the Twins’ CHINS proceeding and his

       argument would be best addressed in a direct appeal of the juvenile court’s

       order adjudicating the Twins as CHINS.



                                               Conclusion
[17]   The juvenile court considered the results of drug screens not admitted into

       evidence after specifically stating it would not consider such evidence. This

       procedure denied Father a meaningful opportunity to respond to the allegation

       K.S. tested positive for THC, and thereby denied him due process.

       Accordingly, we reverse the juvenile court’s adjudication and remand this cause

       for a new fact-finding hearing.


[18]   Reversed and remanded.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 09A04-1604-JC-872 | December 5, 2016   Page 11 of 11
