MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                    FILED
regarded as precedent or cited before any                       Mar 09 2017, 7:54 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
Bryan M. Abell                                           Curtis T. Hill, Jr.
Clark County Public Defender                             Attorney General of Indiana
Jeffersonville, Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General

                                                         James D. Boyer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of R.Y. and B.H.                           March 9, 2017
(Minor Children) Children in                             Court of Appeals Case No.
Need of Services,                                        10A01-1608-JC-1851
                                                         Appeal from the Clark Circuit
S.H.,                                                    Court
Appellant-Respondent,                                    The Honorable Vicki L.
                                                         Carmichael, Judge
        v.
                                                         The Honorable Joni L. Grayson,
Indiana Department of Child                              Magistrate
Services,                                                Trial Court Cause Nos.
                                                         10C04-1603-JC-33 and
Appellee-Petitioner.                                     10C04-1603-JC-34




Court of Appeals of Indiana | Memorandum Decision 10A01-1608-JC-1851 | March 9, 2017    Page 1 of 7
      Najam, Judge.


                                             Statement of the Case
[1]   S.H. (“Mother”) appeals the trial court’s adjudication of two of her minor

      children, R.Y. and B.H. (“the Children”),1 as children in need of services

      (“CHINS”). Mother raises four issues for our review, which we consolidate

      and restate as whether the trial court’s judgment is clearly erroneous. We

      affirm.


                                      Facts and Procedural History
[2]   In March of 2017, Mother lived with her boyfriend, C.G.,2 at his residence.

      Mother lived there with three of her children—the Children and infant K.H.—

      as well as a minor child of C.G.’s. On March 17, K.H. died of sudden infant

      death syndrome.


[3]   The Indiana Department of Child Services (“DCS”) began an investigation into

      K.H.’s death. Pursuant to that investigation, Mother submitted to a drug

      screen. She tested positive for amphetamines and methamphetamines.


[4]   Around that same time, Charlestown Police Department Detective Tejuan

      Johnson conducted two controlled drug buys at C.G.’s residence. Detective




      1
          The Children have different fathers, but neither father participates in this appeal.
      2
          C.G. is not the father of either of the Children.


      Court of Appeals of Indiana | Memorandum Decision 10A01-1608-JC-1851 | March 9, 2017       Page 2 of 7
      Johnson then obtained a search warrant for the residence, which he executed

      on March 26 around 11:00 p.m.


[5]   In executing the warrant, Detective Johnson discovered the Children—R.Y.

      was fourteen years old and B.H. was eight years old—alone inside the

      residence. The Children informed the officers that Mother and C.G. had gone

      to the store. Also inside the residence, the officers discovered

      methamphetamine and paraphernalia in the bedroom that Mother and C.G.

      had shared.


[6]   While officers were searching the residence, L.Y., the father of R.Y.,

      approached the residence from across the street. L.Y. told Detective Johnson

      that he was there to decorate Easter eggs. However, Detective Johnson knew

      that C.G. had a “no trespass warning issued” against L.Y. and, as such,

      Detective Johnson arrested L.Y. for violating that order. Tr. Vol. 2 at 8.

      During L.Y.’s encounter with the officers, he “never acknowledged himself as

      the babysitter” for the Children. Id. at 22.


[7]   Officers repeatedly attempted, over several hours, to have Mother take custody

      of the Children, but she “refused” and said she instead was going to get a

      lawyer in light of the apparent allegations of possession of methamphetamine

      and paraphernalia. Id. at 10. C.G. similarly went “on the run.” Id. at 14.

      Officers took custody of the Children and informed DCS. The Children’s

      maternal grandmother eventually picked the Children up from the police station




      Court of Appeals of Indiana | Memorandum Decision 10A01-1608-JC-1851 | March 9, 2017   Page 3 of 7
      around 5:00 a.m. on March 27. Eventually, DCS placed R.Y. in the care of her

      maternal grandmother and B.H. in the care of her father.


[8]   The DCS alleged the Children were CHINS. At an ensuing fact-finding

      hearing, Mother appeared, even though she was incarcerated, 3 and

      acknowledged that she could use substance abuse treatment and relapse

      prevention services. Mother also asserted that she had left the residence with

      C.G. on March 26 to go to the store and that, while she was there, C.G. had left

      the store and she had to go find him, which prevented her from taking custody

      of the Children after police had arrived at the residence. Mother further

      testified that she had left L.Y. at the residence as a babysitter for the Children.

      The trial court expressly found that Mother’s testimony was not credible. The

      court also heard testimony from Detective Johnson, on which the court relied

      when it adjudicated the Children to be CHINS. Subsequently, the court

      entered its dispositional orders with respect to each of the Children. This

      appeal ensued.


                                       Discussion and Decision
[9]   Mother appeals the trial court’s adjudication of the Children as CHINS.

      Indiana Code Section 31-34-1-1 provides that a child is a child in need of

      services if, before the child becomes eighteen years of age: (1) the child’s




      3
        On appeal, Mother says she had been released from incarceration by the time of the later dispositional
      hearing, but the court’s dispositional order says otherwise, and Mother cites no evidence in the record to
      support her statement. See Appellant’s App. Vol. 2 at 39.

      Court of Appeals of Indiana | Memorandum Decision 10A01-1608-JC-1851 | March 9, 2017                Page 4 of 7
       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. DCS has

       the burden in the trial court to prove by a preponderance of the evidence that a

       child is a CHINS. Ind. Code § 31-34-12-3 (2016); Davis v. Marion Cty. Dep’t of

       Child Servs. (In re M.W.), 869 N.E.2d 1267, 1270 (Ind. Ct. App. 2007). When

       reviewing the sufficiency of the evidence to support a CHINS adjudication on

       appeal, we consider only the evidence favorable to the judgment and the

       reasonable inferences raised by that evidence. In re M.W., 869 N.E.2d at 1270.

       This court will not reweigh evidence or judge witnesses’ credibility. Id.


[10]   Moreover, the trial court entered findings of fact and conclusions thereon

       pursuant to Indiana Trial Rule 52(A). We may not set aside the findings or

       judgment unless they are clearly erroneous. Ind. Trial R. 52(A); Menard, Inc. v.

       Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000). In our review, we first

       consider whether the evidence supports the factual findings. Menard, 726

       N.E.2d at 1210. Second, we consider whether the findings support the

       judgment. Id. “Findings are clearly erroneous only when the record contains

       no facts to support them either directly or by inference.” Quillen v. Quillen, 671

       N.E.2d 98, 102 (Ind. 1996).




       Court of Appeals of Indiana | Memorandum Decision 10A01-1608-JC-1851 | March 9, 2017   Page 5 of 7
[11]   On appeal, Mother asserts that her case is “substantially similar” to Perrine v.

       Marion County Office of Child Services, 866 N.E.2d 269 (Ind. Ct. App. 2007). In

       Perrine, mother was arrested as part of a routine probation sweep, which located

       paraphernalia commonly used for methamphetamine consumption in the

       bedroom of a houseguest. Mother admitted to using methamphetamine a few

       days prior to the probation sweep. As a result of her arrest, DCS filed a petition

       alleging her fourteen-year-old daughter was a CHINS based on mother’s failure

       to provide her child with a safe and stable home, free from drug use and

       neglect. The trial court found the child to be a CHINS. In reviewing the

       evidence on appeal, we held that the evidence did not support a finding that

       mother used methamphetamine in front of her daughter. Id. at 276. We

       reversed, stating that a “single admitted use of methamphetamine, outside the

       presence of the child and without more, is insufficient to support a CHINS

       determination.” Id. at 277.


[12]   Perrine is plainly inapposite to the instant facts. Here, the evidence most

       favorable to the trial court’s judgment demonstrates each of the following facts:


            Mother had tested positive for amphetamines and methamphetamines on
             March 18, 2016, one day after K.H.’s death;
            Mother lived at C.G.’s residence with the Children;
            Detective Johnson had conducted two controlled drug buys at that
             residence around the time of K.H.’s death;
            On March 26, around 11:00 p.m., Detective Johnson executed a warrant
             to search the residence and discovered methamphetamine and
             paraphernalia in a bedroom;
            Detective Johnson also discovered the Children home alone;


       Court of Appeals of Indiana | Memorandum Decision 10A01-1608-JC-1851 | March 9, 2017   Page 6 of 7
            Mother refused to take custody of the Children following the execution
             of the search warrant, and the Children remained in the custody of the
             police until about 5:00 a.m. the next day;
            Mother was incarcerated at the time of the fact-finding hearing;
            Mother admitted to the trial court that she needs substance abuse
             treatment and relapse prevention services.

[13]   Thus, unlike in Perrine, the facts here support the trial court’s judgment that the

       Children’s mental or physical conditions were seriously endangered by

       Mother’s inability, refusal, or neglect to supply necessary care, shelter, or

       supervision, and that the Children need care that they are not receiving and that

       is unlikely to be provided without the coercive intervention of the court. See

       I.C. § 31-34-1-1. Indeed, Mother’s arguments to the contrary, and her

       challenges to several facts found by the trial court, simply disregard the

       evidence most favorable to the trial court’s judgment and seek to have this court

       substitute Mother’s preferred version of the facts in place of those most

       favorable to the trial court’s judgment. We will not do so. We reject Mother’s

       arguments on appeal and affirm the court’s adjudication that the Children are

       CHINS.


[14]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 10A01-1608-JC-1851 | March 9, 2017   Page 7 of 7
