MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Apr 04 2019, 6:39 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
Danielle Sheff                                            Curtis T. Hill, Jr.
Sheff Law Office                                          Attorney General of Indiana
Indianapolis, Indiana
                                                          Frances Barrow
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of: J.H. (Child                             April 4, 2019
Alleged to be in Need of                                  Court of Appeals Case No.
Services) and D.H. (Mother);                              18A-JC-2417
D.H. (Mother),                                            Appeal from the Marion Superior
                                                          Court
Appellant-Respondent,
                                                          The Honorable Marilyn Moores,
        v.                                                Judge
                                                          The Honorable Jennifer Hubartt,
                                                          Magistrate
Indiana Department of Child
                                                          Trial Court Cause No.
Services,
                                                          49D09-1804-JC-1007
Appellee-Petitioner

and




Court of Appeals of Indiana | Memorandum Decision 18A-JC-2417 | April 4, 2019                  Page 1 of 13
      Child Advocates, Inc.,
      Appellee-Guardian ad Litem




      May, Judge.


[1]   D.H. (“Mother”) appeals the adjudication of her child, J.H. (“Child”) as a

      Child in Need of Services (“CHINS”). She challenges several of the trial

      court’s findings in its order adjudicating Child as a CHINS. She also contends

      the trial court improperly relied upon evidence of Mother’s behavior during the

      Informal Adjustment to adjudicate Child as a CHINS. We affirm.



                             Facts and Procedural History
[2]   Mother gave birth to Child on September 14, 2017. Child tested positive for

      marijuana at birth and, based thereon, Mother entered into an Informal

      Adjustment Agreement (“IA”) with DCS shortly after Child’s birth. The IA

      allowed Mother to voluntarily participate in DCS services in an effort to avoid

      the adjudication of Child as a CHINS.


[3]   On April 9, 2018, DCS filed a petition to adjudicate Child as a CHINS based

      on Mother’s non-compliance during the IA. Specifically, DCS alleged Mother

      “ha[d] not participated in the recommended drug treatment, and she has not

      maintained contact with the Family Case Manager (FCM) and home based




      Court of Appeals of Indiana | Memorandum Decision 18A-JC-2417 | April 4, 2019   Page 2 of 13
      case worker.” (App. Vol. II at 19.) DCS also alleged Mother “tested positive

      for both cocaine and marijuana during the IA.” (Id.)


[4]   The trial court held the initial hearing on DCS’s CHINS petition on April 9,

      2018, and placed Child in relative care. The trial court ordered Mother to

      participate in random drug screens and engage in supervised visitation with

      Child. On August 1, 2018, the trial court held a fact-finding hearing on the

      petition to adjudicate Child a CHINS. On August 21, 2018, the trial court

      adjudicated Child a CHINS. The trial court found:


              5. DCS offered mother an Informal Adjustment following the
              birth of the child. Mother agreed to the same and agreed to
              voluntarily complete services offered by DCS.


              6. Mother admits that she did not complete the services which
              she voluntarily agreed to complete in the Informal Adjustment.


              7. Mother admits that she used "weed" during the Informal
              Adjustment.


                                                    *****


              10. FCM McCammack provided mother with services, including
              a substance abuse assessment and random drug screens, during
              the Informal Adjustment. Mother failed to cooperate with all
              services or follow through with the recommendations of the
              assessment.


              11. FCM McCammack provided mother with safe sleep
              education during the Informal Adjustment because she was co-
              sleeping with the infant on an adult sized mattress on the floor.

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-2417 | April 4, 2019   Page 3 of 13
        12. Mother has a history of unstable housing and has lived in at
        least 5 different homes since October, 2017.


        13. Mother told FCM McCammack on 7/30/18 that she was
        living in her prior residence and that she would move in with her
        Aunt when [Child] was returned to her care. Mother later told
        Mr. McCammack on 7/30/18 that she was, in fact, currently
        living with her Aunt.


        14. Mother testified at the factfinding hearing held 8/1/l8 that
        she was currently living with her Aunt.


        15. Mother changed her testimony at the factfinding hearing held
        8/1/18 and then testified that she was not yet living with her
        Aunt, but would begin living with her Aunt when [Child] was
        returned to her care.


        16. Mother’s testimony regarding her current housing and the
        stability of her housing for a very young child was not credible
        during the factfinding hearing held 8/1/18.


        17. Since this action was filed, mother has been provided with
        random drug screens, parenting time, and home based case
        management.


        18. Mother was offered home based case management because
        she lacked income and housing for the child at the
        commencement of the case.


        19. Mother has supervised parenting time with her child.


        20. Mother is employed at a print shop.



Court of Appeals of Indiana | Memorandum Decision 18A-JC-2417 | April 4, 2019   Page 4 of 13
        21. Mother does not have a clearly developed child care plan for
        [Child] while she is working.


        22. Mother admits that she is benefitting from the services offered
        by DCS to help her get a job and become stable.


        23. Mother does not believe that she continues to need the
        services offered by DCS.


        24. Mother is a 20 year old single parent with limited income and
        resources to care for the Child.


        25. Mother has not taken the initiative to independently access
        community based resources to secure housing, child care, or
        other concrete needs of the child.


        26. Mother failed to voluntarily participate in services offered by
        DCS which could assist her securing housing, child care, and
        other concrete needs of the child during the Informal
        Adjustment, thereby necessitating the coercive intervention of the
        Court.


        27. Mother minimizes the risks to [Child’s] safety and well-being
        which are created by a lack of stable housing, child care, age
        appropriate bedding, and other concrete necessities needed by the
        child.


(App. Vol. II at 105-7) (errors in original). Based thereon, the trial court

concluded:


        2. The child’s physical or mental condition is seriously impaired
        or endangered as a result of his mother’s inability, refusal, and


Court of Appeals of Indiana | Memorandum Decision 18A-JC-2417 | April 4, 2019   Page 5 of 13
              neglect to provide the child with a safe, stable home
              environment.


              3. The child needs a safe and stable home environment, parental
              care, and parental supervision which he is unlikely to receive
              without the coercive intervention of the Court.


      (Id. at 107.)


[5]   The trial court held a dispositional hearing on August 29, 2018, and on

      September 12, 2018, the trial court entered a dispositional order requiring

      Mother to participate in services, including random home based visits and

      random drug screens.



                                 Discussion and Decision
[6]   Mother asserts DCS did not present sufficient evidence Child was a CHINS. 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. 2010). The CHINS petition was filed pursuant to

      Ind. Code § 31-34-1-1, which states:


              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,


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-2417 | April 4, 2019   Page 6 of 13
                       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.


[7]   A CHINS adjudication “focuses on the condition of the child,” and not the

      culpability of the parent. In re N.E., 919 N.E.2d at 105. The purpose of finding

      a child to be a CHINS is to provide proper services for the benefit of the child,

      not to punish the parent. Id. at 106.


                                       Trial Court’s Findings
[8]   Mother challenges a number of the trial court’s findings and their nexus to the

      trial court’s decision to adjudicate Child a CHINS. When a juvenile court

      enters findings of fact and conclusions of law in a CHINS decision, we apply a

      two-tiered standard of review. In re Des. B., 2 N.E.3d 828, 836 (Ind. Ct. App.

      2014). We first consider whether the evidence supports the findings and then

      whether the findings support the judgment. Id. We may not set aside the

      findings or judgment unless they are clearly erroneous. Id. Findings are clearly

      erroneous when the record contains no facts to support them either directly or

      by inference, and a judgment is clearly erroneous if it relies on an incorrect legal

      standard. Id. We give due regard to the juvenile court’s ability to assess

      witness credibility and do not reweigh the evidence; we instead consider the
      Court of Appeals of Indiana | Memorandum Decision 18A-JC-2417 | April 4, 2019   Page 7 of 13
       evidence most favorable to the judgment with all reasonable inferences drawn

       in favor of the judgment. Id. We defer substantially to findings of fact, but not

       to conclusions of law. Id. Unchallenged findings “must be accepted as

       correct.” Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1991).


[9]    Mother first challenges Finding 16, wherein the trial court found: “Mother’s

       testimony regarding her current housing and the stability of her housing for a

       very young child was not credible during the factfinding hearing held 8/1/18.”

       (App. Vol. II at 106.) Mother argues at the August 1, 2018, hearing she testified

       she was living with her aunt and two other witnesses testified her housing was

       appropriate, and thus the trial court’s finding is not supported by the evidence.

       However, Mother initially testified she had been living with her aunt for about a

       month, but later testimony from Mother and the home-based counselor

       provided conflicting information regarding the details of that housing, who

       lived in the house, and how long Mother intended to live there. Mother’s

       argument is a request for us to reweigh the evidence and judge the credibility of

       witnesses, which we cannot do. In re Des. B., 2 N.E.3d at 836 (appellate court

       cannot reweigh evidence or judge the credibility of witnesses).


[10]   Mother next challenges Finding 22, which states: “Mother admits that she is

       benefitting from the services offered by DCS to help her get a job and become

       stable.” (App. Vol. II at 106.) Mother contends the finding “misstates the

       evidence to indicate that [Mother] testified that she will continue to benefit

       from DCS services in the future.” (Br. of Appellant at 19.) However, Mother

       testified she believed she needed the services provided as part of her IA “cause

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2417 | April 4, 2019   Page 8 of 13
       [they] got [her] further than where [she] was.” (Tr. Vol. II at 11) (errors in

       original). Mother’s argument is a request for us to reweigh the evidence and

       judge the credibility of witnesses, which we cannot do. See In re Des. B., 2

       N.E.3d at 836 (appellate court cannot reweigh evidence or judge the credibility

       of witnesses).


[11]   Finally, Mother challenges Findings 25, 26, and 27, which state:


               25. Mother has not taken the initiative to independently access
               community based resources to secure housing, child care, or
               other concrete needs of the child.


               26. Mother failed to voluntarily participate in services offered by
               DCS which could assist her securing housing, child care, and
               other concrete needs of the child during the Informal
               Adjustment, thereby necessitating the coercive intervention of the
               Court.


               27. Mother minimizes the risks to [Child’s] safety and well-being
               which are created by a lack of stable housing, child care, age
               appropriate bedding, and other concrete necessities needed by the
               child.


       (App. Vol. II at 106-7.) Mother argues the record is devoid of evidence Mother

       had not taken the initiative to access services on her own, that she had

       participated in services and drug screens during the IA, and that Mother had

       minimized the risks to Child of her current living and working situations.


[12]   However, the record indicates Mother did not complete substance abuse

       treatment during the IA and did not think she needed substance abuse

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2417 | April 4, 2019   Page 9 of 13
       treatment despite multiple positive drug screens during the IA. In addition,

       Mother testified she lived with her aunt for a month, though the trial court

       doubted the veracity of that statement. Mother also testified that she intended

       to look for her own apartment. DCS presented evidence that the family case

       manager observed Mother co-sleeping with Child on a mattress on the floor,

       prompting the family case manager to provide Mother with safe-sleeping

       education. There is no evidence Mother had taken into consideration that

       education and provided an appropriate sleeping environment for Child at the

       time of the fact-finding hearing; thus, Mother was not taking advantage of

       services without coercive intervention.


[13]   Finally, Mother had maintained employment for a month and did not have a

       clearly developed childcare plan for Child once he was returned to her care.

       She indicated at the fact finding hearing that she expected her aunt to watch

       Child, and at the end of the fact finding hearing, the trial court ordered Mother

       to create “some concrete plans” for childcare. (Tr. Vol. II at 40.) Despite that

       request, a report submitted two weeks later indicated Mother had yet to devise

       such a plan. Mother’s arguments are requests for us to reweigh the evidence

       and judge the credibility of witnesses, which we cannot do. See In re Des. B., 2

       N.E.3d at 836 (appellate court cannot reweigh evidence or judge the credibility

       of witnesses).


                  Reliance on Evidence from Informal Adjustment
[14]   Mother contends it was inappropriate for the trial court to rely on evidence of

       Mother’s drug use and noncompliance with services during the IA, and she
       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2417 | April 4, 2019   Page 10 of 13
       argues we instead should focus on the fact she had been sober since the

       petitions for CHINS adjudication was filed. The facts of this case are similar to

       those in K.B. v. Indiana Dept. of Child Services, 24 N.E.3d 997 (Ind. Ct. App.

       2015).


[15]   In K.B., the father appealed a CHINS adjudication, arguing the behavior that

       prompted and occurred during the IA, specifically domestic violence between

       father and his girlfriend, had not occurred in the time since the CHINS petition

       was filed, and thus children were not CHINS. Like in the case before us, father

       consented to an IA with DCS, which required him to complete certain services

       and submit to random drug screens. Father’s participation in the IA was

       “sporadic.” Id. at 1001.


[16]   The trial court’s order adjudicating father’s children as CHINS noted the

       incidents of domestic violence between father and his girlfriend before and

       during the informal adjustment. Father argued the reliance on that past

       behavior was an error because there had not been an incident of domestic

       violence since DCS filed the CHINS petition. We disagreed, holding:


                Even if no other evidence of violence exists, we reiterate that the
                CHINS statute does not require the juvenile court and the DCS
                to wait until a child is physically or emotionally harmed to
                intervene. See In re R.P., 949 N.E.2d [395, 401 (Ind. Ct. App.
                2011)]. In addition, we note that although there were no further
                reported cases of violence when the trial court issued its CHINS
                finding, this by no means proves that Father’s and Girlfriend’s
                domestic violence problems had been resolved. Particularly, in
                light of the fact that Father and Girlfriend disregarded the
                provisions of their Informal Adjustment to participate in
       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2417 | April 4, 2019   Page 11 of 13
               domestic violence counseling, there is no surety that the violence
               will not recur. Under these facts and circumstances, we conclude
               that the trial court’s decision that the Children’s physical or
               mental health was seriously endangered due to their exposure to
               the violence was not erroneous.


       Id. at 1003-4.


[17]   The same is true here. While Mother had not used drugs since DCS filed the

       CHINS petition, she tested positive for cocaine, marijuana, and amphetamines

       during the IA. In addition, she did not maintain regular contact with DCS

       during the IA, and she did not complete substance abuse treatment during the

       IA. As in K.B., we have no surety whether Mother’s substance abuse issues are

       resolved, especially in light of her failure to participate in services during the IA.

       See id. (while additional incidents of domestic violence did not occur after

       CHINS petition filed, father’s failure to participate in services during the IA left

       the court unsure whether the violence would recur, thus requiring the

       intervention of the court). Based thereon, we hold the trial court did not err in

       considering the evidence of Mother’s actions during the IA when determining if

       Child was a CHINS.



                                                Conclusion
[18]   The evidence supported the trial court’s findings, and those findings supported

       the trial court’s conclusion that Child was a CHINS. Additionally, the trial

       court properly relied on evidence of Mother’s pattern of behavior during the IA.

       Accordingly, we affirm.

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2417 | April 4, 2019   Page 12 of 13
[19]   Affirmed.


       Baker, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2417 | April 4, 2019   Page 13 of 13
