MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             FILED
regarded as precedent or cited before any
court except for the purpose of establishing                 May 05 2017, 6:30 am

the defense of res judicata, collateral                           CLERK
                                                              Indiana Supreme Court
estoppel, or the law of the case.                                Court of Appeals
                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
William W. Gooden                                        Curtis T. Hill, Jr.
Mt. Vernon, Indiana                                      Attorney General of Indiana

                                                         James D. Boyer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of:                                        May 5, 2017
M.J., Minor Child,                                       Court of Appeals Case No.
                                                         65A01-1612-JC-2786
and
                                                         Appeal from the Posey Circuit
K.M., Mother,                                            Court
Appellant-Respondent,                                    The Honorable James M.
                                                         Redwine, Judge
        v.                                               Trial Court Cause No.
                                                         65C01-1606-JC-110
The Indiana Department of
Child Services,
Appellee-Petitioner.



Brown, Judge.


Court of Appeals of Indiana | Memorandum Decision 65A01-1612-JC-2786 | May 5, 2017     Page 1 of 12
[1]   K.M. (“Mother”) appeals the trial court’s order determining that M.J. is a child

      in need of services (“CHINS”). Mother raises one issue which we revise and

      restate as whether the evidence is sufficient to support the court’s determination

      that M.J. is a CHINS. We affirm.


                                        Facts and Procedural History

[2]   M.J. was born in March 2004. The Indiana Department of Child Services

      (“DCS”) received a report of abuse or neglect regarding M.J. and conducted an

      assessment in June 2016. Mother submitted to a drug screen which returned

      positive for methamphetamine. On June 22, 2016, DCS filed a petition alleging

      M.J. was a CHINS.1 The petition alleged Mother tested positive for

      methamphetamine on or about June 16, 2016; Mother admitted to the use of

      methamphetamine and use of hydrocodone in an attempt to self-medicate due

      to struggles with prescription medication; Mother reported her struggle to

      obtain services has resulted in the use of methamphetamine as a coping

      mechanism; and the exposure of M.J. to involvement with illegal and impairing

      substances indicates an ongoing lack of appropriate supervision which has not

      been remedied.


[3]   On October 5, 2016, the court held a fact-finding hearing at which it heard

      testimony from Mother and the DCS family case manager assigned to M.J.,

      Lindsey Huffer (“FCM Huffer”). Mother testified that M.J. was twelve years



      1
       DCS’s pre-dispositional report states that the date of removal of M.J. was June 20, 2016, and that M.J. was
      placed in relative foster care.

      Court of Appeals of Indiana | Memorandum Decision 65A01-1612-JC-2786 | May 5, 2017              Page 2 of 12
      old, FCM Huffer and another person made contact with Mother in June 2016

      and asked her to submit to a drug screen, and she submitted to the screen the

      following day. Mother indicated that they asked about her drug use and she

      told them she had recently used methamphetamine. She also stated she was

      using prescription medication, Lortab, for which she did not have a

      prescription at that time and that Lortab is opiate. When asked how long she

      had been using opiates at that point without a prescription, Mother said “I

      don’t know exact amount. A year or two.” Transcript Volume 2 at 8. When

      asked why she did not attempt to obtain a prescription for the medication, she

      replied “I don’t, I can’t answer that, honestly,” and when asked how she

      obtained the medications, she answered “[o]ff of the streets.” Id.


[4]   Mother indicated she is obtaining substance abuse treatment through Raintree

      Counseling, that she obtained “help with the pain pills through [her] pain

      management doctor,” and that she has tested negative on “all of their drug

      tests.” Id. at 9. She stated she had been seeing a doctor at Southwestern

      Indiana Mental Health since she was fifteen years old, she has anxiety and

      depression, she had been receiving counseling every three months for her

      anxiety and depression earlier in the year, and that she was now off medicines.

      When asked about her methamphetamine use, Mother answered “I messed up

      and used that one weekend. [M.J.] was gone and I was trying to numb myself

      from everything going around me.” Id. at 11. She said she smoked

      methamphetamine “[t]hat one time and got caught.” Id. When asked if she

      had ever previously used methamphetamine, Mother responded “[w]ay in the


      Court of Appeals of Indiana | Memorandum Decision 65A01-1612-JC-2786 | May 5, 2017   Page 3 of 12
      past, Um, years” and “I did it in 2011. I did it one other time, maybe 2009.”

      Id. When asked if she felt like she still needed to go to counseling, she

      answered in the negative, and when asked if she believed the drug screens

      helped hold her accountable, she testified “[n]o. It’s this whole lesson learned”

      and “I did it one time and got caught. And now my daughter is paying for it.”

      Id. at 12.


[5]   On cross-examination, Mother indicated that M.J. was not present when she

      used methamphetamine in June, 2016 and had been gone with a friend for that

      weekend. Id. at 13. Mother further testified that she had been prescribed

      Lortab “a year or two prior to being on them, with a prescription.” Id. at 14.

      She stated the last time she had used Lortab without a prescription was when

      she started pain management “[a]bout a month and a half ago.” Id. She

      indicated she never used Lortab in the presence of her child and that her child

      never knew. Mother also testified that she is now thirty-three years old, she is

      no longer in counseling with a doctor due to DCS, and she recently attempted

      to see the doctor but was told she could not obtain their counseling while

      obtaining help with opiates and that DCS had contacted that office.


[6]   Mother stated that M.J. is twelve years old, during her lifetime has never gone

      without food, clothing, shelter, or medical care, has attended school, and has

      never been unsupervised when she should have been supervised. Mother

      indicated she did not know of any care, treatment, or rehabilitation that M.J.

      needs that she was not providing, and that M.J. started talking to a counselor at

      school since she was taken out of the home and it is fair to say that DCS’s

      Court of Appeals of Indiana | Memorandum Decision 65A01-1612-JC-2786 | May 5, 2017   Page 4 of 12
      involvement has created a problem for M.J. She further indicated the DCS

      workers inspected her home and did not indicate it was unsafe for M.J., that

      something needed to be corrected, or that there was some care M.J. needed but

      was not receiving. On redirect examination, when asked if she felt like she

      needed any kind of counseling for her substance abuse issues, Mother replied “I

      don’t feel like I need them but I’m getting them.” Id. at 21.


[7]   FCM Huffer testified that she walked through M.J.’s home, the home was not

      dirty, and there were appropriate beds in the home. She testified that on June

      20, 2016, she discussed with Mother that she had testified positive for

      methamphetamine and needed to discuss the removal of M.J. According to

      FCM Huffer, Mother indicated to her that June 6th was her last use of

      methamphetamine, Mother gave her prescription bottles to FCM Huffer and

      stated that her doctor had taken her off “cold turkey, but she couldn’t stop the

      usage,” and Mother stated that she attempted to obtain help and needs help

      with the opiates but not the methamphetamine. Id. at 27.


[8]   FCM Huffer also testified that on June 27th, 2016 Mother “wanted to talk to me

      about the paperwork that was filed that stated that the methamphetamine was

      not a coping strategy it was recreational usage.” Id. FCM Huffer further

      indicated that, after the CHINS case was filed, DCS offered Mother a drug

      assessment, that Mother asked to begin the drug assessment on August 2nd,

      and Mother officially started with the drug screens on August 23rd. With

      respect to the assessment, FCM Huffer testified “the first time she went she did

      end up walking out so the counselor told me that she couldn’t give me any

      Court of Appeals of Indiana | Memorandum Decision 65A01-1612-JC-2786 | May 5, 2017   Page 5 of 12
       information as far as what she’s recommending,” “we had her come in like a

       week later I believe, and she finished out the assessment,” and “they were

       recommending outpatient intensive services” in a sixteen-week program. Id. at

       29. FCM Huffer stated that Mother believed the outpatient program was too

       intense for her, she was given a couple of different options, and she decided on

       Raintree Counseling. She testified Mother had attended Raintree once and that

       she had not received any recommendations from Raintree as of that day. When

       asked if, since Mother had been screening, “has she been positive,” FCM

       Huffer answered “No. Well, besides the medication she’s currently

       prescribed.” Id. at 31.


[9]    On cross-examination, Mother’s counsel asked if Mother had admitted to any

       other methamphetamine use other than in June 2016 and “other than maybe

       five (5) or six (6) years ago,” and FCM Huffer replied “[n]o.” Id. at 35. When

       asked “what treatment does she need that she is not getting,” FCM Huffer

       answered “[t]he counseling,” and when asked “[w]hat does that have to do with

       [Mother] having tested positive for meth on one (1) occasion? Anything?” she

       replied “[n]ot that I’m aware of.” Id. at 37-38. When asked “How about

       having used Loritab [sic] without a prescription? Is that anxiety connected to

       that?” she answered “[n]ot that I’m aware of.” Id. at 38.


[10]   FCM Huffer testified she was recommending that the family participate in

       services to maintain Mother’s stability, that Mother has not yet completed her

       substance abuse treatment and has been doing drug screens for about a month

       and a half, and DCS has not yet received a recommendation from Raintree.

       Court of Appeals of Indiana | Memorandum Decision 65A01-1612-JC-2786 | May 5, 2017   Page 6 of 12
[11]   The trial court found:


               Mother admitted to one (1) time use of methamphetamine. She
               also admitted to using methamphetamine in the past, in 2011 and
               2009. But more importantly to the Court, she admitted to
               contemporary use of Loritabs [sic] when she had no prescription
               for Loritabs [sic] and indicating she was getting those drugs off of
               the streets. Meaning that every time that she bought a Loritab
               she was committing a felony. So, this is not a case of a single use
               by the Mother. . . . Mother is using Loritabs [sic] on a regular
               basis. The Court finds that it is proven by a preponderance of the
               evidence that the Mother’s ability to provide care and custody of
               the child is impaired or likely to be impaired by her ongoing use
               of prescription medications without a prescription. And that is
               one of the allegations in the Petition. It says child’s Mother
               admitted to use of amphetamine and use of hydrocodone in an
               attempt to self medicate, due to struggle with prescription
               medication. So, [DCS] has proved by a preponderance of the
               evidence that the child is a child in need of services.

       Transcript Volume 2 at 47-48. The court states in its chronological case

       summary entry for the fact-finding hearing that it finds DCS acted reasonably in

       becoming involved in the lives of the family and it would have been

       unreasonable and contrary to the health, safety, and welfare of the child for it to

       not have intervened.


                                                   Discussion

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

       that M.J. is a 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.

       Court of Appeals of Indiana | Memorandum Decision 65A01-1612-JC-2786 | May 5, 2017   Page 7 of 12
       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.


[13]   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.


       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.

       Court of Appeals of Indiana | Memorandum Decision 65A01-1612-JC-2786 | May 5, 2017   Page 8 of 12
[14]   Mother contends there is no evidence “that Mother’s drug usage, minimal as it

       was, caused M.J. to lack food, clothing, shelter, medical care, education, or

       supervision.” Appellant’s Brief at 6. She argues that DCS’s case was based

       solely on her drug usage and that “[t]he evidence supporting this consists in its

       entirety on a positive test for methamphetamine on June 16, 2016, Mother’s

       admission that she had used opiates for which she had no prescription ‘about a

       month and a half ago,’ and her admission that prior to the June 16 positive

       methamphetamine screen she had last used that drug in 2011.” Id. at 7 (citing

       Transcript Volume 2 at 14). She also argues that DCS acknowledged it had no

       evidence that she ever used methamphetamine or opiates when she was caring

       for M.J. and that there was no evidence she was impaired while M.J. was in her

       care.


[15]   DCS maintains that the evidence shows Mother had a pervasive substance

       abuse problem with illegally acquired opiate pain medication for a year or two

       while caring for M.J., and that there is no question that, during the entire time

       Mother was and is using opiates, she had responsibility for M.J.’s care and

       custody. In reply, Mother contends that nothing in the record indicates she had

       custody of M.J. during the one- or two-year period she was using non-

       prescribed drugs. Mother argues that DCS did not address her argument that

       there was no evidence that M.J. was deprived of necessary food, clothing,

       shelter, medical care, education, or supervision and that perhaps the failure of

       the DCS to address the issue is a concession that such evidence was in fact

       lacking.


       Court of Appeals of Indiana | Memorandum Decision 65A01-1612-JC-2786 | May 5, 2017   Page 9 of 12
[16]   The record reveals that Mother tested positive for methamphetamine on or

       about June 16, 2016, and she indicated that she previously used

       methamphetamine in 2009 and 2011. Mother indicated that M.J. was living

       with her when DCS visited her in June 2016 and that at the time she was using

       prescription medication, Lortab, which was an opiate, for which she did not

       have a prescription. She testified that she had been using opiates without a

       prescription for “[a] year or two” and that she obtained the medication “[o]ff of

       the streets.” Transcript Volume 2 at 8. Mother had previously had a

       prescription but could not stop her usage after she no longer had a prescription.

       Although she indicated M.J. was not present when she used the

       methamphetamine or Lortab, when asked if she believed her use of opiate

       medication without a prescription was an issue, Mother answered affirmatively,

       that she had been trying to obtain help, and that she is now obtaining help for

       that. When later asked if she felt like she needed any kind of counseling for her

       substance abuse issues, Mother answered “I don’t feel like I need them but I’m

       getting them.” Id. at 21. FCM Huffer testified that, on June 20, 2016, Mother

       had indicated to her that she needs help with the opiates but not the

       methamphetamine, and that a parent’s drug use would affect the parent’s ability

       to supervise her child. We also note Mother ended up walking out of her first

       substance abuse assessment and, after she later completed the assessment,

       believed the recommended sixteen-week outpatient program was too intense for

       her.




       Court of Appeals of Indiana | Memorandum Decision 65A01-1612-JC-2786 | May 5, 2017   Page 10 of 12
[17]   To the extent Mother characterizes her drug use as minimal, we note the trial

       court expressly found that “this is not a case of a single use by the Mother,” she

       is using illegally-obtained prescription medication “on a regular basis,” and

       Mother’s ability to provide care is impaired or likely to be impaired by her

       ongoing use of prescription medications without a prescription. Transcript

       Volume 2 at 47. The evidence presented at the fact-finding hearing supports the

       court’s determination. The evidence does not establish a mere single or isolated

       instance of proscribed drug use but rather reveals Mother’s use of and struggle

       with prescription medication over a meaningful period of time, which she was

       unable to or did not satisfactorily address prior to DCS’s involvement.2 As

       noted, the CHINS statute does not require that a court wait until a tragedy

       occurs to intervene. See In re A.H., 913 N.E.2d at 306. Based upon the record,

       we conclude that the judgment reached by the trial court is not clearly

       erroneous.




       2
         In support of her argument, Mother cites In re S.M., 45 N.E.3d 1252 (Ind. Ct. App. 2015), and In re S.K., 57
       N.E.3d 878 (Ind. Ct. App. 2016). In finding that the evidence did not support the CHINS determinations,
       the court in those cases, observed that the evidence showed either a prior history of sporadic substance abuse
       or an isolated instance of drug use without more. See In re S.M., 45 N.E.3d at 1256 (noting that the mother
       had a history of sporadic marijuana use but stopped using marijuana as soon as she realized she was pregnant
       and that the substance abuse assessment did not recommend substance abuse treatment); In re S.K., 57
       N.E.3d at 883 (observing that the court’s findings indicate nothing more than an isolated use). Here, the trial
       court found and the evidence supports the conclusion that Mother had used prescription medication without
       a prescription which she obtained off the streets for one or two years prior to DCS’s involvement. Her use of
       prescription drugs without a prescription was not sporadic, not an isolated instance, and had not ended prior
       to DCS’s assessment. We find In re S.M. and In re S.K. to be distinguishable.

       Court of Appeals of Indiana | Memorandum Decision 65A01-1612-JC-2786 | May 5, 2017               Page 11 of 12
                                                   Conclusion

[18]   For the foregoing reasons, we affirm the trial court’s determination that M.J. is

       a CHINS.


[19]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 65A01-1612-JC-2786 | May 5, 2017   Page 12 of 12
