MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             Aug 09 2018, 9:32 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Roberta Renbarger                                         Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana
                                                          Abigail R. Recker
                                                          Robert J. Henke
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of:                                         August 9, 2018

D.K.M. and A.M. (Minor                                    Court of Appeals Case No.
                                                          18A-JC-672
Children)
                                                          Appeal from the Allen Superior
                                                          Court
A.D.M. (Mother),                                          The Honorable Charles F. Pratt,
Appellant-Respondent,                                     Judge
                                                          The Honorable Sherry A. Hartzler,
        v.                                                Magistrate
                                                          Trial Court Cause No.
The Indiana Department of                                 02D08-1706-JC-465
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 18A-JC-672 | August 9, 2018                  Page 1 of 9
      Riley, Judge.


                                STATEMENT OF THE CASE
[1]   Appellant-Respondent, A.D.M. (Mother) appeals the trial court’s determination

      that her minor child, A.M. (Child), is a Child in Need of Services (CHINS).


[2]   We affirm.


                                                    ISSUE
[3]   Mother presents one issue on appeal, which we restate as: Whether the trial

      court’s order, adjudicating Child as a CHINS, is clearly erroneous.


                      FACTS AND PROCEDURAL HISTORY
[4]   Around June 8, 2017, the Indiana Department of Child Services (DCS)

      received a report that Child, who was then three-years-old, had “crawled out

      the broken second story window and was on top of the porch.” (Transcript p.

      10). The following day, Child got out on the roof again, where he was found by

      law enforcement. At all times during these proceedings, Father was

      incarcerated.


[5]   On June 12, 2017, DCS Family Case Manager, Deborah McClintock (FCM

      McClintock), conducted a family assessment. Mother informed her that Child

      was “very hyperactive” and “almost impossible” to “supervise a hundred

      percent of the time.” (Tr. p. 29). She also admitted that Child “had been up on

      the roof unsupervised.” (Tr. p. 29). FCM McClintock observed the home to

      have sustained water damage and was concerned about the disorganization of

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-672 | August 9, 2018   Page 2 of 9
      the residence and the “really large number of cats present” but the home “did

      meet minimum stand[ards] for cleanliness and it did have ample food and all

      working utilities.” (Tr. p. 30). Mother refused to take a drug screen and stated

      “very adamantly that she felt she would not benefit from” DCS’s services or

      any home-based services. (Tr. p. 30). When FCM McClintock returned to the

      home a couple of days later, Mother had fixed the broken window.


[6]   On June 19, 2017, DCS filed its petition alleging Child to be a CHINS. 1 At the

      end of June 2017, Family Case Manager Ashley Johnson (FCM Johnson) met

      with Mother during a child and family team meeting to discuss services and to

      schedule a home visit. At the end of the meeting, Mother submitted a drug

      screen which returned positive for heroin metabolite and morphine. Mother

      was “very alarmed” at the result. (Tr. p. 34). “She said she had no clue how

      she could test positive for something such as heroin[.]” (Tr. p. 34). Mother was

      screened seven days later and again tested positive. Because of the positive

      screens, DCS removed the Child on July 19, 2017. DCS referred Mother for a

      diagnostic assessment and a substance abuse assessment. Mother completed

      the diagnostic assessment and she was recommended to participate in ongoing

      psychiatric medication and pain management, but Mother declined any further

      assistance for substance abuse.




      1
       Initially, the CHINS petition was filed for both A.M. and his older brother, D.K.M. However, the court
      did not adjudicate D.K.M as a CHINS as he was seventeen years old.

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-672 | August 9, 2018                  Page 3 of 9
[7]   FCM Johnson continued to test Mother for another eight screens and “each one

      has been positive for heroin and other substances[,]” such as fentanyl,

      hydrocodone, suboxone, and oxycodone. (Tr. p. 35). Mother testified that she

      has been using Percocet and hydrocodone for chronic pain as a result of

      degenerative disc disease, as well as muscle relaxers and anti-inflammatories.

      Mother explained that in May or June of 2017, she had visited a holistic healer

      who provided her with a “supplement” based on herbs to help with pain

      management and which she takes four to six times daily. (Tr. p. 14). She

      clarified that she was unaware that the supplement contained heroin until she

      tested positive during DCS’s screens. However, since becoming aware of the

      heroin component, Mother has continued to use the supplement and although

      she tried to stop “cold turkey,” she became ill and exhibited withdrawal

      symptoms. (Tr. p. 16). Mother has been taking suboxone to get clean but also

      takes heroin when she does not have suboxone available. She admitted that she

      participated in a suboxone treatment program at Clean Slate in Fort Wayne,

      Indiana, but has not signed a release for DCS to obtain information from the

      program. DCS is unaware of Mother’s participation in services other than the

      suboxone program.


[8]   On December 7, 2017, the trial court conducted a fact-finding hearing. FCM

      Johnson testified that she remained concerned about the lack of supervision of

      the Child due to Mother’s heroin use. She stated that “the substance use can

      impede on her ability to properly supervise [Child] especially with her

      expressing that he is very active and motivated[.] . . . [Child] is very


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-672 | August 9, 2018   Page 4 of 9
       aggressive. Like I’ve gone to a visit and he’s been aggressive, difficult to control

       with words, telling him no, . . . He’s very vocal and needs a lot of redirection.”

       (Tr. p. 44).


[9]    On December 11, 2017, the trial court issued its order adjudicating Child as a

       CHINS. On February 18, 2018, after a dispositional hearing, the trial court

       entered its dispositional decree, ordering Mother to participate in services,

       substance abuse counseling, homebased services, and participate in a

       medication management service.


[10]   Mother now appeals. Additional facts will be provided if necessary.


                               DISCUSSION AND DECISION
[11]   Mother argues that the trial court’s CHINS determination is not supported by

       the evidence. When determining whether sufficient evidence exists in support

       of a CHINS determination, we consider only the evidence most favorable to the

       judgment and the reasonable inferences therefrom. In re S.D., 2 N.E.3d 1283,

       1287 (Ind. 2014). This court will not reweigh the evidence or reassess the

       credibility of the witnesses. Id. at 1286. When a juvenile court’s order contains

       specific findings of fact and conclusions thereon, we engage in a two-tiered

       review. In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014). First, we determine

       whether the evidence supports the findings, and then, we determine whether the

       findings support the judgment. Id. Findings are clearly erroneous when there

       are no facts or inferences drawn therefrom that support them. Id. A judgment



       Court of Appeals of Indiana | Memorandum Decision 18A-JC-672 | August 9, 2018   Page 5 of 9
       is clearly erroneous if the findings do not support the juvenile court’s

       conclusions or the conclusions do not support the resulting judgment. Id.


[12]   CHINS proceedings are civil actions, and therefore, “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.E., 919 N.E.2d 102, 105 (Ind. 2010). On review, we

       neither reweigh the evidence nor judge the credibility of the witnesses. Id. We

       consider only the evidence that supports the juvenile court’s decision and

       reasonable inferences drawn therefrom. Id. We reverse only upon a showing

       that the decision of the juvenile court was clearly erroneous. Id.


[13]   To meet its burden of establishing CHINS status, DCS must prove that the

       child is under eighteen 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.


       Ind. Code § 31-34-1-1. Although the acts or omissions of one or both parents

       can cause a condition that creates the need for court intervention, the CHINS

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       designation focuses on the condition of the child rather than on an act or

       omission of the parents. In re N.E., 919 N.E.2d at 105. “[T]he purpose of a

       CHINS adjudication is to protect children, not punish parents.” N.L. v. Ind.

       Dep’t of Child Servs, 919 N.E.2d 102, 106 (Ind. 2010).


[14]   While not disputing the trial court’s facts in its Order, Mother claims that the

       conditions which gave rise to the DCS investigation and involvement were fully

       resolved prior to the fact-finding hearing. She fixed the broken window and

       “she personally secured treatment in a suboxone program.” (Mother’s Br. p.

       12). Accordingly, she denies that the coercive intervention of the court is

       needed as she “firmly believes that she has always provided for her children

       emotionally, physically, psychologically, and medically for the past twenty-two

       years.” (Mother’s Br. p. 13). Mother claims that “although there may be issues

       in her life, they are not issues that she requires assistance to address, but are

       issues she has and can address herself.” (Mother’s Br. p. 13).


[15]   While we agree with Mother that the initial reason of DCS’s involvement with

       the family was very quickly remedied by fixing the window, the Child’s CHINS

       determination was solely based on Mother’s drug use and inability to supply

       him with the necessary supervision. Since DCS became involved with the

       family and instigated drug screens, Mother tested positive for heroin eight

       times, with the most recent drug screen of September 11, 2017 showing the

       highest levels of all previous screens. Mother admitted to using heroin in lieu of

       medically prescribed pain medication. She also conceded that she used this

       supplement four to six times daily while caring for Child and continued to

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-672 | August 9, 2018   Page 7 of 9
       ingest it after being made aware of the supplement’s heroin component. At

       times, Mother not only tested positive for heroin but also for suboxone, which

       she was supposed to use to get clean, and fentanyl. During these proceedings,

       Mother not only adamantly refused DCS’s help but also “doesn’t think she

       needs a substance abuse treatment.” (Tr. p. 9).


[16]   Assessing the evidence as a whole, we note that “[p]arents who make positive

       changes in their lives should be applauded, rather than being subjected to the

       coercion of a CHINS finding.” Matter of E.K., 83 N.E.3d 1256, 1261 (Ind. Ct.

       App. 2017). As such, a CHINS finding should consider the family’s condition

       not just when the case was filed, but also when it is heard. In re S.D., 2 N.E.3d

       1283, 1290 (Ind. 2014). Here, the record demonstrates that Mother did not

       make even a modicum of effort to alleviate DCS’s concerns for the safety and

       supervision of the Child. Rather, Mother’s drug screens were invariably

       positive and reflected increasing levels of substance abuse. While we empathize

       with Mother’s situation, and despite DCS’s urging and help, Mother never

       enrolled in a pain management program but rather chose to self-medicate in an

       unsafe manner. Accordingly, we agree with the trial court that the Child needs

       supervision that he is unlikely to receive without coercive intervention by the

       State.


                                             CONCLUSION
[17]   Based on the foregoing, we hold that the trial court’s order, adjudicating Child

       as a CHINS, is not clearly erroneous.


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-672 | August 9, 2018   Page 8 of 9
[18]   Affirmed.


[19]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-672 | August 9, 2018   Page 9 of 9
