MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
                                                                          Jun 05 2020, 8:25 am
regarded as precedent or cited before any
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 K.C.                               ATTORNEYS FOR APPELLEE
Sybil T. Sharvelle                                        Robert J. Henke
Truitt Ray Law                                            Monika Prekopa Talbot
Lafayette, Indiana                                        Deputy Attorneys General
                                                          Indianapolis, Indiana
ATTORNEY FOR APPELLANT R.C.
Benjamin J. Church
Church Law Office
Monticello, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of A.C. and P.C.,                           June 5, 2020
Children in Need of Services,                             Court of Appeals Case No.
                                                          19A-JC-2706
K.C. and R.C. (Parents),
                                                          Appeal from the
Appellants-Respondents,                                   White Circuit Court
        v.                                                The Honorable
                                                          Jason A. Thompson, Judge
Indiana Department of Child                               Trial Court Cause Nos.
Services,                                                 91C01-1907-JC-20
                                                          91C01-1907-JC-21
Appellee-Petitioner.



Court of Appeals of Indiana | Memorandum Decision 19A-JC-2706 | June 5, 2020                      Page 1 of 16
      Kirsch, Judge.


[1]   K.C. (“Mother”) and R.C. (“Father”) appeal the trial court’s determination that

      A.C and P.C. were children in need of services (“CHINS”). Mother and Father

      (“Parents”) raise two issues, but we address only one, which we restate as

      whether the juvenile court committed clear error in ruling that A.C. and P.C

      were CHINS.1


[2]   We affirm.


                                    Facts and Procedural History
[3]   Mother and Father married in 2013. Tr. Vol. II at 119. They live with their

      children, A.C., born in February of 2008, and P.C., born in May of 2017.

      Appellants’ App. Vol. II at 21-23. Mother is the biological parent of both A.C.

      and P.C. (collectively, “Children”), and Father is the biological parent of P.C.,

      and A.C. is his stepson. Tr. Vol. II at 117, 158.


[4]   Beginning in August 2017, DCS received multiple reports that there was

      physical abuse, domestic violence, and drug use in the home. Id. at 8. On




      1
        In Parents’ other issue, they contend the evidence does not support Finding #10, in which the juvenile court
      found: “Mother and Father both have a defensive attitude, blaming others, and [are] not taking responsibility or
      action to correct the problems.” Appellants’ App. Vol. II at 67 (emphasis added). Parents claim their efforts to
      remedy their problems show that Finding #10 is clearly erroneous, and the Department of Child Services
      agrees. Because this point is not disputed and also bears no impact on our resolution of this appeal, we focus
      only on the question of whether the CHINS determination, in light of the other findings and evidence, was
      clearly erroneous.

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2706 | June 5, 2020                       Page 2 of 16
      September 27, 2018, DCS received a report that there was methamphetamine

      use in the household. Id. In October 2018, DCS received a report that Parents

      used drugs and that Father was “belligerent at the school.” Id. On March 8,

      2019, DCS received a report that Parents had used methamphetamine and were

      involved in domestic violence. Id. On March 8, 2019, Family Case Manager

      (“FCM”) Blake Denton (“FCM Denton”) assessed the family and spoke with

      Father. Id. at 35.


[5]   On June 8, 2019, FCM Melissa Barrett (“FCM Barrett”) received a report about

      domestic violence and substance abuse at Parents’ home. Id. at 8. The report

      alleged that Mother had left the residence with Children. Id. FCM Barrett

      called Mother, and the two arranged to meet the following day, on June 9,

      2020. Id. at 11. At the meeting, Mother told FCM Barrett that she and Father

      had fought, so she and Children left home while Father was in the shower. Id.

      at 12. Mother also said that, three weeks earlier, she and Father had argued

      and Father grabbed her by the neck, shoved her against the wall, and choked

      her. Id. Mother said that she fought back and scratched Father’s face. Id.

      Mother said that Father’s “temper would get bad enough to where it would lead

      to physical violence.” Id. at 12-13.


[6]   FCM Barrett noticed that Mother’s physical appearance was consistent with

      drug use. Id. at 15. Mother had round, healed sores all over her arms, chest,

      and face. Id. She also had an open sore on her left chin. Id. Based on her

      training and experience, FCM Barrett concluded that these sores might indicate

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2706 | June 5, 2020   Page 3 of 16
      methamphetamine use by Mother. Id. Mother’s unkempt appearance also

      aroused FCM Barrett’s suspicions that Mother was using drugs, so FCM

      Barrett asked Mother if she was using illegal drugs. Id. Mother denied using

      drugs but refused to take a drug screen to corroborate her denial. Id.


[7]   Later that same day, Mother texted FCM Barrett that Father had locked

      himself inside the house with P.C. Id. at 16. FCM Barrett called 911 and met

      Parents and the police at the home. Id. at 17. Father appeared agitated. Id.

      Mother said that when she had earlier arrived at the home, she and Father

      argued, and Father called her names. Id. The police arrested Father because he

      had open warrants on unrelated matters. Id. at 17-18, 22-23. The domestic

      violence incidents raised FCM Barrett’s concern for the safety of Children. Id.

      at 18.


[8]   On June 10, 2019, FCM Denton was assigned to the case. Id. at 32-33. FCM

      Denton learned that there was a no-contact order protecting Mother, Children,

      and Maternal Great-Grandfather from Father. Id. at 17, 39. FCM Denton then

      contacted Mother and asked her to take a drug screen, but Mother refused. Id.

      at 33. FCM Denton and Mother exchanged text messages in June and

      arranged a meeting for late June, but Mother cancelled the meeting at the last

      minute, allegedly because of her work schedule. Id. at 34-35, 37. FCM Denton

      was finally able to meet with Mother on July 5, 2019, and he learned that

      Father was back in the home. Tr. Vol. II at 37.



      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2706 | June 5, 2020   Page 4 of 16
[9]    On July 8, 2019, the Indiana Department of Child Services (“DCS”) filed a

       verified petition alleging Children to be CHINS. Appellants’ App. Vol. II at 21-

       23. The primary allegations in the petition pertained to drug use and domestic

       violence. Id. The same day, DCS filed a verified petition to remove Father

       from the residence. Id. at 25-26. After holding an initial hearing on July 9,

       2019, the juvenile court ordered Father to be removed from the home. Id. at 40.


[10]   The next day, FCM Janie Erzinger (“FCM Erzinger”) met the family. Tr. Vol.

       II at 52. By that time, the protective order was back in place through the

       CHINS case, and Father had been removed from the home.2 Id. FCM

       Erzinger offered to facilitate supervised visits between Father and Children. Id.

       During the first visitation, on July 9, 2018, Father cried and made inappropriate

       and sarcastic comments to A.C. about DCS. Id. at 53. Among other things,

       Father said: “DCS doesn’t need to be involved. This case is nothing but lies.”

       Id. at 54. FCM Erzinger spent forty-five minutes of the one-hour visit with

       Father, away from Children, trying to calm him down. Id. at 53. FCM

       Erzinger then visited Mother, who admitted to having used illegal drugs, and

       then they, with help from Maternal Great-Grandfather, created a safety plan

       that if Mother used illegal drugs again, she would tell Maternal Great-




       2
           The protective order has since been lifted. Tr. Vol. II at 122.


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2706 | June 5, 2020   Page 5 of 16
       Grandfather, who would then take care of Children. Id. at 55-56. Around this

       time, child P.C. tested positive for methamphetamine. Id. at 55.


[11]   Afterwards, FCM Erzinger often tried to contact Parents, but “there was a lot

       of evasiveness.” Id. at 57. When FCM Erzinger went to the house, no one

       answered the door. Id. Father never communicated with FCM Erzinger, and

       Mother’s communication with FCM Erzinger was sporadic. Id.


[12]   On July 30, 2019, Parents participated in a family team meeting. Id. Father

       was agitated and belligerent, and he kept leaving the room. Id. at 58. Father

       accused DCS of “setting him up” with the drug testing because he had smoked

       THC in the past and believed that DCS would hold it against him if the test

       came up positive. Id. Father repeatedly claimed that the family had no

       problems, including domestic violence, and did not need services. Id. at 59.

       The next day, the home-based case manager told FCM Erzinger that Father

       said his drug test would be positive for methamphetamine “because the person

       he stayed with was actively using.” Id. at 59-60.


[13]   Communication with Parents continued to be sporadic. Id. at 61. Whenever

       FCM Erzinger stopped by the house, there was no answer. Id. at 60. Mother

       cancelled appointments at the last minute, and Father did not communicate

       with FCM Erzinger. Id. DCS was concerned about Father being in the home

       because there had been a report about Father going there to shower and do

       laundry. Id. at 61. Therefore, DCS filed a petition to remove Children from the


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2706 | June 5, 2020   Page 6 of 16
       home due to concerns that Parents violated the no-contact order and used

       illegal drugs. Id. at 61, 63. When FCM Erzinger went to the residence to

       remove Children, Father was there. Id. at 65. DCS placed Children with

       Father’s mother (“Paternal Grandmother”). Id. at 66.


[14]   At the fact-finding hearing, FCM Erzinger acknowledged that Parents had

       participated in assessments and random drug screens. Id. at 81-82. However,

       she described both Mother’s and Father’s participation in drug screens as

       “sporadic.” Id. at 81. The juvenile court took judicial notice of the protective

       order under cause number 91C01-1906-PO-85, and Father testified that the

       allegations that formed the basis of the petition for the no-contact order related

       to domestic violence. Id. at 128. Father testified that he and Mother were in

       marital counseling and that the counseling improved their communication. Id.

       at 119. Father also testified that he was participating in a character restoration

       program and that he found the program helpful and planned to finish it. Id. at

       121, 135, 138-39. FCM Erzinger testified that Father has recently started

       working two jobs, and Mother has full-time employment. Id. at 89, 95, 134,

       159. Father told FCM Erzinger that he needed to work two jobs because he

       was behind on his bills. Id. at 89, 95.


[15]   FCM Erzinger testified that she was concerned that Parents would not comply

       with the services if the CHINS cases were dismissed. Id. at 70-71, 89. FCM

       Erzinger believed that Children were CHINS. Id. at 71. In Court Appointed

       Special Advocate (“CASA”) Connie Cripe’s opinion, Children were well-

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2706 | June 5, 2020   Page 7 of 16
       adjusted at Paternal Grandmother’s home. Id. at 110. CASA Cripe added that

       Children’s safety was first, and if there were drugs and domestic violence in the

       home, then the home was not safe for them. Id. at 110-11.


[16]   In its order issued on September 5, 2019, the juvenile court stated:


               The Court now adjudicates [Children] a Child in Need of
               Services as defined by IC 31-34-1-1.


               In Support for this conclusion of law, the following findings of
               fact are found:


               1. Domestic Violence in the presence of [Child A.C.].


               2. Mother's admission of drug use and possession of drugs to
               FCM Erzinger during the Safety Plan meeting.


               3. FCM Barrett’s observation of wounds and scabs on Mother,
               based on her training is conducive to methamphetamine use.


               4. Filing of Protection Order for Domestic Violence by Mother
               against Father in Cause No. 91C01-1906-PO-000085.


               5. Multiple inappropriate and/or derogatory statements to child
               about DCS.


               6. Pattern of behavior in previous assessments and interactions
               with DCS in March of 2016, October of 2018, and March of
               2019.



       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2706 | June 5, 2020   Page 8 of 16
        7. That there is a lack of immunizations for [Child P.C.].


        8. Father has a sporadic work history.


        9. Mother has a sporadic work history.


        10. Mother and Father both have a defensive attitude, blaming
        others, and not taking responsibility or action to correct the
        problems.


        11. CASA, based on conversations and interactions with
        children, believe[s] it is in the best interest of the children to not
        be with the parents at this time.


        The children, [A.C.] and [P.C.], have been removed and are
        currently in relative placement.


        The Court finds that it is in the best interests of the children to be
        removed from the home environment and remaining in the home
        would be contrary to the welfare of the children because of the
        inability, refusal or neglect to provide shelter, care, and/or
        supervision at the present time, and the children need protection
        that cannot be provided in the home.


        The Court finds that reasonable efforts to prevent or eliminate
        removal have been met.


        The Court finds responsibility for the placement and care of the
        child is ordered or continues to be ordered to the DCS.


Appellants’ App. Vol. II at 66-67.


Court of Appeals of Indiana | Memorandum Decision 19A-JC-2706 | June 5, 2020     Page 9 of 16
[17]   On October 21, 2019, the juvenile court issued a dispositional order, continuing

       Children’s placement outside the home. Id. at 97-100; 107-10. The juvenile

       court ordered Parents to participate in home-based case management, parenting

       assessment, substance abuse assessment, mental health evaluations, random

       drug screens, substance abuse treatment, therapy, and supervised visitations.

       Id. at 98. Mother and Father initiated separate appeals, but we later

       consolidated the appeals.


                                      Discussion and Decision
[18]   When a juvenile court makes findings in a CHINS case, our review is governed

       by Indiana Trial Rule 52, which states that “the court on appeal shall not set

       aside the findings or judgment unless clearly erroneous, and due regard shall be

       given to the opportunity of the trial court to judge the credibility of the

       witnesses.” Ind. Trial Rule 52(A); In re T.S., 906 N.E.2d 801, 804 (Ind. 2009).

       As to the issues covered by findings, we apply a two-tiered analysis, considering

       first whether the evidence supports the findings and then whether the findings

       support the judgment. T.R. 52(A); In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014).

       Findings are clearly erroneous when there are no facts or inferences drawn

       therefrom that support them. In re T.S., 906 N.E.2d at 804. A judgment

       is clearly erroneous if the findings do not support the juvenile court’s

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

       do not reweigh the evidence or judge the credibility of witnesses but view the



       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2706 | June 5, 2020   Page 10 of 16
       evidence and its reasonable inferences most favorably to the judgment. In re

       K.D., 962 N.E.2d 1249, 1253 (Ind. 2012).


[19]   As to issues that a juvenile court’s findings do not address, we apply a general

       judgment standard, which requires us to affirm a judgment “if it can be

       sustained on any legal theory supported by the evidence.” In re S.D., 2 N.E.3d

       at 1287. Under this standard, we may look both to other findings and beyond

       the findings to determine if the result is against the facts and circumstances

       before the juvenile court. C.B. v. B.W., 985 N.E.2d 340, 344 (Ind. Ct. App.

       2013), trans. denied.


[20]   A CHINS proceeding is civil in nature, so DCS 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. 2017). Indiana Code section 31-34-1-1

       provides that a child is a CHINS if, before the child becomes 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:


               ....


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



       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2706 | June 5, 2020   Page 11 of 16
               (A) the child is not receiving; and


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


[21]   When determining CHINS status under section 31-34-1-1, particularly the

       “coercive intervention” element, courts should consider the family’s situation

       not just when the case was filed but also when it is heard. In re A.R., 110

       N.E.3d 387, 401 (Ind. Ct. App. 2018). This approach avoids punishing parents

       for past mistakes when they have already corrected them. Id. “While we

       acknowledge a certain implication of parental fault in many CHINS

       adjudications, the truth of the matter is that a CHINS adjudication is simply

       that -- a determination that a child is in need of services.” In re N.E., 919

       N.E.2d at 105.


[22]   Parents argue that the evidence does not support the CHINS determination

       because even though DCS presented evidence of domestic violence and

       substance abuse, this evidence did not show by a preponderance of the evidence

       that Children were endangered and that continued coercive intervention of the

       juvenile court was necessary. Parents allege that Mother had used

       methamphetamine only once, and they correctly observe that a single, isolated

       use of methamphetamine is insufficient to support a CHINS adjudication. See

       In re L.P., 6 N.E.3d 1019, 1021 (Ind. Ct. App. 2014). Parents appear to

       acknowledge that the record contains evidence of other drug use but contend

       that evidence is too vague to support a CHINS adjudication They claim “the
       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2706 | June 5, 2020   Page 12 of 16
       State failed to prove [any other] drug use by either parent with specificity. This

       lack of clarity cannot sustain a CHINS adjudication as to the findings dealing

       with drug use.” Appellants’ Br. at 11. Thus, Parents argue that the coercive

       intervention of the juvenile court is not necessary to address concerns about

       drug use.


[23]   As to domestic violence, Parents correctly observe that in Finding #1, the

       juvenile court found that there was only one incident of domestic violence that

       occurred in the presence of a child, A.C. Appellants’ App. Vol. II at 66. Even so,

       Parents acknowledge that even just one occurrence of domestic violence in a

       child’s presence is sufficient to support a CHINS determination. See In re D.P.,

       72 N.E.3d 976, 984 (Ind. Ct. App. 2017) (“[A] single incident of domestic

       violence in a child’s presence may support a CHINS finding, and it need not

       necessarily be repetitive.”). Furthermore, Parents admit the record contains

       evidence of other instances of domestic violence. However, Parents argue that

       since they are addressing domestic violence and marital toil through counseling

       and other services, coercive intervention by the juvenile court is not necessary.

       Tr. Vol. II at 121, 135, 138-39.


[24]   We disagree that DCS failed to show by a preponderance of the evidence that

       Children were endangered by drug use. Most notably, one child, P.C., had

       tested positive for methamphetamine. Id. at 55. Furthermore, while Parents

       are correct that DCS proved only one specific instance of drug use, the record

       shows that Mother used drugs more than once and that Father also used illegal

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2706 | June 5, 2020   Page 13 of 16
       drugs. This evidence includes Mother’s refusal to take drug tests at least twice.

       Id. at 15, 33. The evidence also includes Mother’s physical appearance, that she

       had round, healed sores on her arms, chest, and face, and an open sore on her

       left chin, all tell-tale signs of methamphetamine use. Id. Mother admitted to

       FCM Erzinger that she had abused methamphetamine and prescription

       medications, and a safety plan had been put in place to address Mother’s drug

       use. Id. at 55. Father also used methamphetamine and other drugs. Id. at 58-

       60. Thus, the most reasonable inference is that Mother and Father were more

       than occasional drug users and that this drug use endangered Children.


[25]   We also reject Parents’ argument that Children were not endangered by

       domestic violence. A sampling of Mother and Father’s physical confrontations

       illustrate that Mother and Father cannot, for now, provide a safe environment

       for Children: 1) Mother told FCM Barrett that during one of her arguments

       with Father, he grabbed her neck, shoved her against the wall, and choked her.

       Id. at 12; and 2) Father’s “temper would get bad enough to where it would lead

       to physical violence.” Id. at 13. Even a single incident of domestic violence in

       a child’s presence may support a CHINS determination; the violence need not

       be repetitive. In re D.P., 72 N.E.3d at 984. Here, Parents admitted to at least

       one incident, and this was sufficient to support the CHINS determination. Tr.

       Vol. II at 12-13, 128, 148, 160-61. However, a reasonable inference from the

       foregoing evidence is that there were multiple incidents of domestic violence,

       including two reports of domestic violence dating back to 2017. Id. at 8. These


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2706 | June 5, 2020   Page 14 of 16
       same facts regarding drug use and domestic violence also support the juvenile

       court’s conclusion that its coercive intervention was necessary to meet the needs

       of Children. Cf. A.J.L. v. D.A.L., 912 N.E.2d 866, 874 (Ind. Ct. App. 2009)

       (“The same evidence, that Aunt and Uncle had been the primary caretakers of

       the Children for at least the past year, also supports the trial court’s finding as to

       Mother’s voluntary relinquishment of the minor children.”) (internal quotation

       marks omitted).


[26]   We commend Parents’ efforts to provide a safer environment for Children

       through marriage counseling, Father’s participation in a character restoration

       program, and other services. Nonetheless, the evidence leads us to conclude

       that the juvenile court was not clearly erroneous in determining that its coercive

       intervention was necessary for the best interests of Children. CASA Cripe

       testified that Children’s safety should be the first consideration and if there were

       drugs and domestic violence in the home, then the home was not safe for them.

       Tr. Vol. II at 110-11. FCM Erzinger was concerned that Parents would not

       comply with the services if the trial court dismissed the case. Id. at 70-71, 89.

       She testified, “I do believe that if there was no court intervention, they would

       not continue said services. . . . . [and] . . . they would still continue with their

       problems and they would probably likely escalate.” Id. at 89. FCM Erzinger

       was understandably concerned because during this case, Parents were “evasive”

       whenever FCM Erzinger tried to communicate with Parents. Id. at 57.

       Father’s sarcastic attitude toward DCS also justified her concern that he would


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2706 | June 5, 2020   Page 15 of 16
       not continue using services if the case had been dismissed. Id. at 53. Even

       more concerning was Parents’ sporadic compliance with the requirement to

       submit to drug testing. Id. at 81. These reasons convince us that the juvenile

       court did not commit clear error in determining that its coercive intervention

       was still necessary to ensure that Children were not endangered by Parents’

       drug use, Father’s propensity toward domestic violence, and Parents’ turbulent

       marriage.


[27]   Affirmed.


       Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2706 | June 5, 2020   Page 16 of 16
