MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                    Mar 15 2019, 10:37 am
regarded as precedent or cited before any
court except for the purpose of establishing                                     CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Luisa M. White                                           Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General

                                                         Abigail R. Recker
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Matter of Lu.G. and                            March 15, 2019
Li.G. (Minor Children),                                  Court of Appeals Case No.
Children in Need of Services,                            18A-JC-1760
and                                                      Appeal from the Howard Circuit
                                                         Court
A.G. (Mother),
                                                         The Honorable Lynn Murray,
Appellant-Respondent,                                    Judge

        v.                                               Trial Court Cause Nos.
                                                         34C01-1803-JC-109, -110

Indiana Department of Child
Services,
Appellee-Petitioner



Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-1760 | March 15, 2019                     Page 1 of 11
                                                  Case Summary
[1]   A.G. (“Mother”) appeals the trial court’s determination that her minor

      children, Li.G. and Lu.G. (“the Children”), are children in need of services

      (“CHINS”). Mother contends that the trial court abused its discretion in

      admitting evidence and that the evidence is insufficient to support the CHINS

      adjudication. Finding no reversible error in the admission of evidence and that

      sufficient evidence supports the CHINS adjudication, we affirm.


                                      Facts and Procedural History
[2]   The Children were born on February 13, 2018.1 The following day, the Indiana

      Department of Child Services (“DCS”) received a report that the Children had

      been born premature at thirty-three weeks; their umbilical cord blood tests were

      positive for amphetamine and methamphetamine; and Mother had tested

      positive for methamphetamine on January 25 and February 13. In response,

      DCS family case manager Jana Caudill performed a preliminary assessment.

      During Caudill’s interview of Mother on February 15, Mother stated that she

      used drugs in the early stages of pregnancy but stopped using at twelve weeks

      when she learned that she was pregnant. Mother explained that she had been

      using drugs because she was depressed and suicidal after her mother died in

      May 2017. Mother had begun therapy through Howard Community Health




      1
          All dates are in 2018 unless otherwise indicated.


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-1760 | March 15, 2019   Page 2 of 11
      Network. Mother was unemployed, did not have stable housing, and was

      looking for a place to live.


[3]   On March 19, DCS filed a CHINS petition, alleging that since the Children’s

      birth, Mother had three negative drug screens but tested positive for

      methamphetamine on March 9 and 13; Mother denied using any substance that

      would result in her testing positive for methamphetamine; and Mother was still

      looking for housing because she could not remain at her current location for

      more than fourteen days. The CHINS petition also alleged that Mother’s

      husband (“Father”) was incarcerated at Pendleton Correctional Facility until

      June 2019. The trial court conducted an initial hearing that day and authorized

      the Children’s removal from Mother’s care.


[4]   On May 7, the trial court held a factfinding hearing. Father stipulated that the

      Children were CHINS. Caudill testified. During her testimony, DCS

      introduced Exhibits 1 and 2, the records from the Children’s umbilical cord

      drug screens. Mother objected to the exhibits based on lack of foundation,

      arguing that Caudill had mischaracterized the drug screens as tests of the

      Children themselves, but the tests were done on blood from the umbilical cords.

      Tr. Vol. 2 at 6-8. The trial court observed that the exhibits were accompanied

      by an affidavit from the custodian of the testing lab that indicated that the drug

      screens were conducted on umbilical cord blood. Id. at 7-8. The trial court

      concluded that the exhibits were self-authenticating and admitted them over

      Mother’s objection. Id. at 8. DCS’s counsel asked Caudill what the results of

      the Children’s drug screens at birth had been, and Caudill testified that the

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-1760 | March 15, 2019   Page 3 of 11
      umbilical cord blood drug screens for both children were positive for

      methamphetamine. Id. at 8. Mother did not object.


[5]   Mother also testified at the factfinding hearing. DCS’s counsel asked her

      whether the Children tested positive for “illegal drugs” at their birth, and

      Mother answered that their “[umbilical] cord blood was but they were never

      tested.” Id. at 13. Mother testified that she did not use illegal drugs when she

      was pregnant; she did not consider herself an addict; and she did not think she

      needed help regarding drug use. Id. She admitted that she had testified positive

      for illegal drugs twice after the Children were born but explained that since

      those two positive tests, she had been tested twice-weekly for drugs and had not

      tested positive. Id. at 13, 16. Mother stated that she had not had suicidal

      ideations since May 2017 when her mother passed away. She testified that she

      continued to see the therapist she had been seeing before the Children’s removal

      and explained that the therapist was like a “patient advocate” who assists with

      parenting, substance abuse, or whatever she needs help with. Id. at 16. She

      also testified that she visited the Children three times a week for three hours

      each time, was employed, lived in a two-bedroom trailer, and had all necessary

      childcare supplies.


[6]   At the conclusion of the factfinding hearing, the trial court found that based on

      the evidence submitted, DCS had met its burden of proof to show that each

      child was a CHINS. Citing Indiana Code Section 31-34-1-10, the trial court

      found it was uncontroverted that the Children were born with a controlled

      substance in their bodies, which includes umbilical cord tissue under the statute,

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-1760 | March 15, 2019   Page 4 of 11
      and that each child required care, treatment, and rehabilitation that is unlikely

      to be provided or accepted without coercive intervention of the court. On that

      point, the trial court stated,


              Nearly a month after the children were born, and they were born
              premature, they did require further medical care and
              hospitalization, their mother did test positive for
              methamphetamine twice. She’s indicated in fact, in response to
              her counsel’s questions, that she doesn’t believe that she requires
              any treatment, doesn’t believe that she requires any help from the
              department, would appear that unless it’s going to be ordered,
              that she would not be willing to accept that.


      Id. at 18-19. The trial court also observed that Mother “ha[s] made some strides

      on her own. Sounds like she does have a place that’s appropriate for the

      children. She’s able to test clean, consistently clean. We can get her started on

      services to make sure that that’s going to be a continuing thing.” Id. at 19.


[7]   On May 14, the trial court issued its order adjudicating the Children as CHINS.

      On June 13, following a hearing, the court issued its dispositional order. This

      appeal ensued.


                                     Discussion and Decision
[8]   The trial court here entered sua sponte findings of fact and conclusions thereon,

      even though such findings and conclusions are not statutorily required for

      CHINS adjudications. In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). As to the

      issues covered by the findings, we first consider whether the evidence supports

      the findings, and then whether the findings support the judgment. Id. We

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-1760 | March 15, 2019   Page 5 of 11
       review the remaining issues under the general judgment standard and will

       affirm the judgment “if it can be sustained on any legal theory supported by the

       evidence.” Id. (quoting Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997)).

       Additionally, in family law matters, Indiana appellate courts have a well-

       established preference for granting latitude and deference to our trial courts.

       Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016). This deference recognizes

       the trial court’s unique ability to see the witnesses, observe their demeanor, and

       scrutinize their testimony, in contrast to the appellate court’s review of a cold

       transcript. Id. When performing appellate review of a CHINS determination,

       “[w]e neither reweigh the evidence nor judge the credibility of the witnesses.”

       In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012). Instead, “[w]e consider only the

       evidence that supports the trial court’s decision and reasonable inferences

       drawn therefrom.” Id.


[9]    “[T]he purpose of a CHINS adjudication is to protect children, not punish

       parents.” In re N.E., 919 N.E.2d 102, 106 (Ind. 2010). “[A] CHINS

       adjudication is not a determination of parental fault but is simply a

       determination that a child is in need of services and is unlikely to receive those

       services without the court’s intervention.” In re L.C., 23 N.E.3d 37, 39 (Ind. Ct.

       App. 2015), trans. denied. Because a CHINS adjudication is civil in nature,

       DCS “must prove by a preponderance of the evidence that a child is a CHINS

       as defined by the juvenile code.” Id.


[10]   Here, DCS alleged that the Children were CHINS pursuant to Indiana Code

       Section 31-34-1-10, which provides,

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1760 | March 15, 2019   Page 6 of 11
               Except as provided in sections 12 and 13 of this chapter, a child
               is a child in need of services if:


               (1) the child is born with:


                        (A) fetal alcohol syndrome;


                        (B) neonatal abstinence syndrome; or


                        (C) any amount, including a trace amount, of a controlled
                        substance, a legend drug, or a metabolite of a controlled
                        substance or legend drug in the child’s body, including the
                        child’s blood, urine, umbilical cord tissue, or meconium;
                        and


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


                        (A) the child is not receiving; or


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


[11]   Mother challenges the sufficiency of the evidence as to paragraphs 1(C) and

       2(B). As to paragraph 1(C), Mother contends that there was insufficient

       evidence to show that the Children were born with a controlled substance in

       their umbilical cord tissue. On that point, Mother argues that the trial court

       erred in admitting Exhibits 1 and 2. “We review a trial court’s admission of

       evidence for an abuse of discretion.” In re Paternity of H.R.M., 864 N.E.2d 442,

       445 (Ind. Ct. App. 2007). However, the “fact that evidence was erroneously

       admitted does not automatically require reversal, and we will reverse only if we
       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1760 | March 15, 2019   Page 7 of 11
       conclude the admission affected a party’s substantial rights.” Id. at 445-46. “In

       general, the admission of evidence that is merely cumulative of other evidence

       amounts to harmless error as such admission does not affect a party’s

       substantial rights.” Id. at 450-51.


[12]   Exhibits 1 and 2 consisted of the lab reports indicating positive tests for the

       presence of methamphetamine in the Children’s umbilical cord tissue.

       Regardless of the admissibility of these lab results, there is testimony in the

       record that the Children’s umbilical cord blood tests were positive for a

       controlled substance at birth. Caudill testified without objection that the

       umbilical cord test results were positive for methamphetamine. Tr. Vol. 2 at 8.

       In addition, Mother testified that the Children’s umbilical cord blood tested

       positive for illegal drugs. Id. at 13. Therefore, any error in the admission of

       Exhibits 1 and 2 was harmless, and we need not address the merits of Mother’s

       argument concerning their admissibility. In addition, given Mother’s

       testimony, the evidence that there was a controlled substance present in the

       umbilical cord tissue of both the Children was uncontroverted. We conclude

       that there was sufficient evidence to establish paragraph 1(C).2




       2
          Mother argues that a CHINS finding pursuant to Section 31-34-1-10 requires evidence of endangerment,
       citing In re S.M., 45 N.E.3d 1252 (Ind. Ct. App. 2015), and Ad.M. v. Indiana Department of Child Services, 103
       N.E.3d 709, 713 (Ind. Ct. App. 2018). However, in both cases the discussion of endangerment related to a
       CHINS finding under Indiana Code Section 31-34-1-1, which specifically requires a showing of impairment
       or endangerment. Section 31-34-1-10 has no such requirement.

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1760 | March 15, 2019                     Page 8 of 11
[13]   As for paragraph 2(B), Mother asserts that there is insufficient evidence that the

       Children need care, treatment, or rehabilitation unlikely to be provided or

       accepted without the coercive intervention of the court. “The element of

       whether coercive intervention is necessary ‘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.’” Matter of D.P., 72 N.E.3d 976, 985 (Ind.

       Ct. App. 2017) (quoting S.D., 2 N.E.3d at 1290). A CHINS finding “should

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

       it is heard.” Matter of N.C., 72 N.E.3d 519, 524 (Ind. Ct. App. 2017) (quoting

       S.D., 2 N.E.3d at 1290).3


[14]   Mother contends that the trial court erred in failing to consider her situation at

       the time of the factfinding hearing and that, by that time, she had rectified the

       reasons that led to the Children’s removal: “Mother had stable housing, had all

       the necessary supplies to care for her children, had clean drug screens for 7

       weeks, had employment, was attending therapy and addressing her substance

       abuse issues.” Appellant’s Br. at 23. Mother challenges the trial court’s finding

       that reads, “At this time Mother does not have stable housing for herself and

       the children: She has fourteen (14) days to leave her current residence and

       currently has no where [sic] else to go.” Appellant’s App. Vol. 2 at 23. While

       Mother concedes that this was true on March 19, she asserts that it was no



       3
           Likewise, at future hearings, the trial court should consider Mother’s current situation.


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1760 | March 15, 2019                  Page 9 of 11
       longer true on May 7. We agree that at the factfinding hearing, DCS presented

       no evidence that Mother was currently homeless, and Mother testified that she

       had found a place to live. Therefore, the finding regarding Mother’s lack of

       housing is clearly erroneous, but Mother does not challenge any other written

       findings.


[15]   In addition to the written findings, the trial court explained its ruling at the

       conclusion of the factfinding hearing. Upon review, it is apparent that the trial

       court considered Mother’s current condition.4 The trial court noted that

       Mother “had made some strides on her own,” had “a place that’s appropriate

       for the children,” and had been “able to test clean, consistently clean.” Tr. Vol.

       2 at 19. However, the trial court also noted that Mother had tested positive

       twice for methamphetamine but testified that she did not believe that she

       requires any treatment or help from DCS. Mother does not dispute that

       testimony but asserts that she is already engaged in services and therefore does

       not need DCS services. Presumably, Mother is referring to the therapy she

       receives from the “patient advocate.” Id. at 16. We conclude that Mother’s

       testimony that she did not believe that she needed treatment for drug abuse

       supports the trial court’s conclusion that Mother would not accept drug abuse

       treatment unless it was court ordered. Id. Mother’s argument is merely a




       4
         Mother contends that the trial court erred in not allowing testimony on her condition at the time of the
       factfinding hearing. Although DCS objected to Mother’s testimony regarding her possession of childcare
       supplies, the trial court did not sustain the objection and allowed Mother to continuing testifying about her
       current condition, including for example, whether she had employment, whether she had tested positive for
       drugs since March, and whether she was seeing a therapist. Tr. Vol. 2 at 16-17.

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1760 | March 15, 2019                   Page 10 of 11
       request to reweigh the evidence, which we must decline. We conclude that the

       evidence is sufficient to establish that the Children need care, treatment, or

       rehabilitation that is unlikely to be provided or accepted without the coercive

       intervention of the court.


[16]   Based on the foregoing, we conclude that sufficient evidence supports the

       CHINS adjudication and affirm.5


[17]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       5
         Because we have concluded that the evidence supports the CHINS adjudication pursuant to Section 31-34-
       1-10, we need not address Mother’s argument that the trial court also erred in finding that the Children were
       CHINS under Section 31-34-1-1. However, we would have no difficulty in concluding that the evidence was
       sufficient to show that Mother’s drug use seriously endangered the Children’s physical or mental condition as
       required by paragraph 1 of that section.

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1760 | March 15, 2019                 Page 11 of 11
