                                                                              Nov 30 2015, 8:15 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Danielle L. Gregory                                       Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Robert J. Henke
                                                          Abigail R. Recker
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of: S.M., J.M.,                             November 30, 2015
A.M., and H.G., Children in                               Court of Appeals Case No.
Need of Services,                                         49A02-1505-JC-377
A.M. (Mother),                                            Appeal from the Marion Superior
                                                          Court
Appellant-Respondent,
                                                          The Honorable Marilyn A.
        v.                                                Moores, Judge
                                                          The Honorable Danielle P.
                                                          Gaughan, Magistrate
The Indiana Department of
Child Services,                                           Trial Court Cause No.
                                                          49D09-1412-JC-3106
Appellee-Petitioner                                       49D09-1412-JC-3107
                                                          49D09-1412-JC-3108
                                                          49D09-1412-JC-3109




Court of Appeals of Indiana | Opinion 49A02-1505-JC-377 | November 30, 2015                     Page 1 of 11
      Baker, Judge.


[1]   Far too often, our public resources and agencies are called upon to intercede to

      protect the most vulnerable in our society—our children. The General

      Assembly has established a statutory procedure for determining when children

      are in need of the State’s services and has specified the type of evidence

      required. In this case, however, the juvenile court found four children to be in

      need of services when the record is devoid of evidence supporting such a

      finding.


[2]   A.M. (Mother) appeals the juvenile court’s order declaring her four children to

      be Children in Need of Services (CHINS). She argues that the evidence is

      insufficient to support the CHINS finding. We find the evidence wholly lacking

      and reverse.


                                                          Facts
[3]   Mother is the mother of four children: S.M., born in 2008; J.M., born in 2009;

      A.M., born in 2010; and H.G., born in 2014. Father M is the father of S.M.,

      J.M., and A.M., and Father G is the father of H.G.1 In 2008, the Department

      of Child Services (DCS) substantiated allegations regarding domestic violence

      between Mother and Father M. In 2009, DCS substantiated allegations that




      1
          Neither Father M nor Father G is participating in this appeal.


      Court of Appeals of Indiana | Opinion 49A02-1505-JC-377 | November 30, 2015   Page 2 of 11
      Mother had smoked marijuana while pregnant. In 2010, DCS substantiated

      allegations regarding domestic violence between Mother and Father G.


[4]   On December 12, 2014, DCS filed a petition alleging that all of the children

      were CHINS after H.G.’s meconium tested positive for marijuana at the time of

      his birth. Mother tested negative for marijuana at the time of H.G.’s birth.


[5]   A factfinding hearing was held on April 10, 2015. DCS stipulated that Mother

      began completing random drug screens in January 2015. She completed a

      screen approximately every two weeks. All of her screens, from beginning to

      end, were negative.


[6]   Mother had also been participating in home-based therapy, with no evidence in

      the record that her participation was reluctant or unsuccessful. She had also

      completed a substance abuse assessment. She was cooperative with the

      assessor, reporting that she has used marijuana sporadically since she was a

      teenager. The assessor testified that Mother was “insightful” when she

      identified her marijuana use as a crutch. Tr. p. 17. Following the assessment,

      the assessor did not recommend that Mother participate in substance abuse

      treatment.


[7]   Mother admitted that she used marijuana on one occasion while she was

      pregnant, but before she knew that she was pregnant. As soon as she learned

      that she was pregnant, she stopped smoking marijuana and did not use again

      during the duration of the CHINS case.



      Court of Appeals of Indiana | Opinion 49A02-1505-JC-377 | November 30, 2015   Page 3 of 11
[8]    Mother was unemployed but had a second job interview scheduled at the time

       of the factfinding hearing. Father G helped Mother financially, and Mother

       also received food stamps. The children have always had a home, sufficient

       food, and sufficient clothing.


[9]    Father G has ongoing substance abuse issues. He also has an open CHINS case

       involving another child (Mother was not a part of that CHINS case) and was

       receiving services, including substance abuse treatment, through the other

       CHINS case. Mother and the children were living with Father G in his home.

       When his substance abuse became a problem, he voluntarily moved out of the

       home so that the children were not exposed to drug use. There is no evidence

       that Mother or Father G ever used drugs in the presence of the children or

       during a time in which the children were in their care. Father G paid the rent

       and utilities for the home; Mother’s name was not on the lease. She testified

       that if Father G asked her to move out, she and the children would move to a

       shelter until she found a permanent residence. She testified that she could find

       and maintain housing and stability without DCS in her life.


[10]   Following the factfinding hearing, the juvenile court found all of the children to

       be CHINS. In pertinent part, the adjudication was based on the following

       reasoning:


               Mother has a history of substance abuse. [Father G] has had
               recent positive screens and has not completed [substance abuse
               treatment]. The home that Mother is living in with the children
               is [Father G’s] home and Mother is not able to maintain that
               home without the assistance of [Father G]. [Father M] cannot

       Court of Appeals of Indiana | Opinion 49A02-1505-JC-377 | November 30, 2015   Page 4 of 11
               ensure the safety of his children while they are in the custody and
               care of Mother.


       Appellant’s App. p. 124. The juvenile court held a dispositional hearing on

       May 1, 2014, ordering Mother to participate in home-based therapy, home-

       based case management, and random drug screens. Mother now appeals.


                                     Discussion and Decision
                                       I. Standard of Review
[11]   Mother argues that there is insufficient evidence supporting the CHINS

       adjudications. Our Supreme Court has explained the nature of a CHINS

       proceeding and appellate review of a CHINS finding as follows:

               A CHINS proceeding is a civil action; thus, “the State must
               prove by a preponderance of the evidence that a child is a
               CHINS as defined by the juvenile code.” In re N.R., 919 N.E.2d
               102, 105 (Ind.2010). We neither reweigh the evidence nor judge
               the credibility of the witnesses. Egly v. Blackford County Dep’t of
               Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We consider
               only the evidence that supports the trial court’s decision and
               reasonable inferences drawn therefrom. Id. We reverse only
               upon a showing that the decision of the trial court was clearly
               erroneous. Id.


               There are three elements DCS must prove for a juvenile court to
               adjudicate a child a CHINS. DCS must first prove the child is
               under the age of eighteen; DCS must prove one of eleven
               different statutory circumstances exist that would make the child
               a CHINS; and finally, in all cases, DCS must prove the child
               needs care, treatment, or rehabilitation that he or she is not
               receiving and that he or she is unlikely to be provided or accepted

       Court of Appeals of Indiana | Opinion 49A02-1505-JC-377 | November 30, 2015   Page 5 of 11
               without the coercive intervention of the court. In re N.E., 919
               N.E.2d at 105.


       In re K.D., 962 N.E.2d 1249, 1253–54 (Ind. 2012) (footnote omitted).


[12]   Our Supreme Court has cautioned that “[n]ot every endangered child is a child

       in need of services, permitting the State's parens patriae intrusion into the

       ordinarily private sphere of the family.” In re S.D., 2 N.E.3d 1283, 1287 (Ind.

       2014). Here, DCS alleged that the children were CHINS pursuant to Indiana

       Code section 31–34–1–1, which provides as follows:

               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.


[13]   Our Supreme Court has interpreted this provision to require “three basic

       elements: that the parent’s actions or inactions have seriously endangered the


       Court of Appeals of Indiana | Opinion 49A02-1505-JC-377 | November 30, 2015    Page 6 of 11
       child, that the child’s needs are unmet, and (perhaps most critically) that those

       needs are unlikely to be met without State coercion.” In re S.D., 2 N.E.3d at

       1287.


[14]   Additionally, DCS alleged that the children2 were CHINS pursuant to Indiana

       Code section 31-34-1-10, which provides as follows:

               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; or


                        (B)      any amount, including a trace amount, of a
                                 controlled substance or a legend drug in the child's
                                 body; 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.




       2
         Although this statute arguably applies only to H.G., for unknown reasons, DCS alleged all of the children
       to be CHINS under this statute as well.

       Court of Appeals of Indiana | Opinion 49A02-1505-JC-377 | November 30, 2015                      Page 7 of 11
[15]   Mother stipulated at the factfinding hearing that H.G.’s meconium tested

       positive for marijuana at the time of his birth.


                                              II. Sufficiency
[16]   First, we will consider whether the adjudication is proper under Indiana Code

       section 31-34-1-1. As noted above, it is DCS’s burden to prove that the parent’s

       actions or inactions have seriously endangered the child, that the child’s needs

       are unmet, and that those needs are unlikely to be met without State coercion.

       We find the evidence in this record wholly insufficient to support a single one of

       these elements.


[17]   First, there is no evidence in the record that at any point in time, any of the

       children were endangered. It could be argued that H.G. was endangered when

       he was born with marijuana-positive meconium, but there is no evidence in the

       record showing how, specifically, marijuana-positive meconium endangered the

       child. There is no evidence that the parents have ever used drugs in the

       presence of the children, or that there was ever an occasion in which they were

       impaired by substance abuse while the children were in their care.


[18]   Second, there is no evidence that the children have ever lacked food, shelter, or

       love and care. In other words, there is no evidence of a single occasion when

       their needs were unmet. Although there was concern about a possible future

       occasion in which Mother and the children would be asked to move out of

       Father G’s home, at the time of the factfinding, that had not happened. And



       Court of Appeals of Indiana | Opinion 49A02-1505-JC-377 | November 30, 2015   Page 8 of 11
       even if it were to happen, Mother had a contingency plan and was confident

       she could continue to meet their needs.


[19]   The mere fact of an unemployed parent does not make a CHINS. The mere

       fact of a family on food stamps does not make a CHINS. Even the mere fact of

       a family living in a shelter while seeking stable housing does not make a

       CHINS. Here, those mere facts are the only facts (and one of them was merely

       a future concern rather than a present fact). The record is wholly devoid of a

       single example of the children’s needs going unmet.


[20]   Finally, there is no evidence in the record that their needs would not be met

       without State coercion. As already noted, their needs were being met—without

       State coercion. Mother was confident that she could handle life’s twists and

       turns on her own, and there is no evidence in the record to undercut that

       confidence.


[21]   Yes, Mother has a history of sporadic marijuana use. Yes, she has had prior

       DCS substantiations. But every single drug screen she provided during the

       CHINS case was clean. And her substance abuse assessment did not even

       recommend substance abuse treatment. There is no evidence in the record

       undercutting the testimony of Mother and Father G that she did not know she

       was pregnant with H.G. when she used marijuana or that she stopped using it

       as soon as she realized she was pregnant. A prior history—of substance abuse,

       or DCS contacts, or even crimes—in and of itself is not remotely sufficient to




       Court of Appeals of Indiana | Opinion 49A02-1505-JC-377 | November 30, 2015   Page 9 of 11
       uphold a CHINS.3 Here, that is essentially the primary reason for these CHINS

       adjudications.


[22]   The evidence in the record here is woefully insufficient to support these CHINS

       adjudications. DCS failed to prove that the children’s physical or mental

       condition were seriously endangered, that the parents were unable or unwilling

       to provide the children with the necessaries of life, that the children needed care

       or treatment that they were not receiving, or that the coercive intervention of

       the court was necessary. The juvenile court erred in finding the children to be

       CHINS under this statute.


[23]   Turning next to Indiana Code section 31-34-1-10, as noted above, Mother

       stipulated that H.G.’s meconium was positive for marijuana at birth.

       Therefore, the first prong of this statute was met. The second prong, however,

       requires DCS to prove that H.G. needs care, treatment, or rehabilitation that he

       was not receiving or that would be unlikely to be provided without the coercive

       intervention of the court. As noted above, the record is devoid of evidence that

       H.G. needed any care, treatment, or rehabilitation that he was not receiving.

       There is simply no evidence, anywhere, that this infant’s needs were not being




       3
         Father G admittedly has ongoing substance abuse issues. However, he is already receiving substance abuse
       services through another CHINS case, and will continue to receive those services so long as that case remains
       open. We note that when his substance abuse became a more significant issue, he voluntarily moved out of
       his own home to refrain from exposing the children to substance abuse.

       Court of Appeals of Indiana | Opinion 49A02-1505-JC-377 | November 30, 2015                    Page 10 of 11
       met in every way. Therefore, we likewise find insufficient evidence supporting

       the adjudication under this statute.


[24]   We are well aware that DCS and the courts are overwhelmed with the growing

       numbers of CHINS cases statewide. All would be better served if the system

       focused its time, efforts, and resources on the families who really need them.

       This one did not.


[25]   The judgment of the juvenile court is reversed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1505-JC-377 | November 30, 2015   Page 11 of 11
