MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                FILED
regarded as precedent or cited before any                                        Aug 27 2020, 9:36 am
court except for the purpose of establishing
                                                                                     CLERK
the defense of res judicata, collateral                                          Indiana Supreme Court
                                                                                    Court of Appeals
estoppel, or the law of the case.                                                     and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Leanna Weissmann                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         Monika Prekopa Talbot
                                                         Robert J. Henke
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                                  IN THE
       COURT OF APPEALS OF INDIANA

In re the Matter of A.H. (Minor                          August 27, 2020
Child),                                                  Court of Appeals Case No.
                                                         20A-JC-879
L.H. (Mother),1
                                                         Appeal from the Vigo Circuit
Appellant-Respondent,                                    Court
           v.                                            The Honorable Daniel W. Kelly,
                                                         Magistrate
Indiana Department of Child                              Trial Court Cause No.
Services,                                                84C01-2001-JC-30

Appellee-Petitioner.




1
    Father does not participate in this appeal.


Court of Appeals of Indiana | Memorandum Decision 20A-JC-879 | August 27, 2020         Page 1 of 14
      Mathias, Judge.


[1]   L.H. (“Mother”) appeals the Vigo Circuit Court’s order adjudicating A.H., her

      minor child, a Child In Need of Services (“CHINS”). L.H. argues that the trial

      court’s CHINS adjudication is not supported by sufficient evidence.


[2]   We affirm.


                                  Facts and Procedural History
[3]   In September 2019, Mother, two-year-old A.H.; K.R., who is A.H.’s maternal

      grandmother (“Grandmother”); S.R., who is Grandmother’s ex-husband; and

      sixteen-year-old A.R., Mother’s sister (“Sister”), lived together in a hotel in

      Terre Haute. The family’s home was destroyed by fire, and they were

      temporarily living in motel rooms. On October 1, 2019, the Department of

      Child Services (“DCS”) investigated a report that two-year-old A.H. was

      unsupervised and wandering in a hotel parking lot. A.H. was in Grandmother’s

      care when the incident occurred. Grandmother was asleep and believed that

      Mother had taken A.H. with her to run errands.


[4]   On October 19, 2019, DCS received another report of unsafe conditions in the

      home. One week later, DCS received a report that Grandmother was using

      methamphetamine and was under the influence of methamphetamine in A.H.’s

      presence. Grandmother was also physically violent with Mother while A.H.

      was present. Grandmother was asked to submit to a drug screen, but she

      refused to do so.


      Court of Appeals of Indiana | Memorandum Decision 20A-JC-879 | August 27, 2020   Page 2 of 14
[5]   On November 3, DCS investigated reports that Grandmother continued to use

      methamphetamine. A DCS caseworker observed that Grandmother appeared

      to be under the influence of a narcotic. Mother informed the caseworker that

      she found a glass pipe that belonged to Grandmother. Both Mother and Sister

      informed the case worker that Grandmother had been using methamphetamine

      and that she struggles to control her anger when she is using. Mother told the

      caseworker that she, A.H., and Sister would be moving in with a friend due to

      Grandmother’s drug use.


[6]   On November 27, a caseworker met with Sister, who informed the caseworker

      that Grandmother continued to use methamphetamine and did so in A.H.’s

      presence. Sister reported that Mother and Grandmother were living in a home

      with other adults who abuse illegal substances. The caseworker met with

      Mother and Grandmother in new their home that same day. Grandmother

      refused a drug screen. Mother and Grandmother informed the case worker that

      they were planning to move to the Rodeway Inn Motel.


[7]   On December 2, a caseworker made an unannounced visit to the Rodeway Inn

      Motel. Grandmother refused a drug screen and was angry with the caseworker.

      A.H. was present during this visit.


[8]   On December 28, Grandmother was charged with domestic battery. The next

      day, a caseworker made another unannounced visit to the motel. Sister, who

      was pregnant, reported that when she attempted to intervene in a fight between

      Mother and Grandmother, Grandmother hit her in the stomach, leading to the


      Court of Appeals of Indiana | Memorandum Decision 20A-JC-879 | August 27, 2020   Page 3 of 14
       domestic battery charge. Mother was upset that S.R., Grandmother’s ex-

       husband, allowed the caseworker into their home. S.R. and Mother refused to

       submit to drug screens.


[9]    On December 30, the caseworker returned to the motel and observed that A.H.

       had been left in Grandmother’s care. Sister was also present in the motel room,

       and Grandmother was in violation of a no-contact order Sister obtained after

       Grandmother struck her. Grandmother left the motel room because she feared

       law enforcement officers were coming to the motel. A.H. was left in S.R.’s care.

       That same day, Grandmother was charged with possession of

       methamphetamine, possession of paraphernalia, and invasion of privacy.


[10]   On January 8, 2020, DCS filed a petition alleging that A.H. is a CHINS

       pursuant to Indiana Code section 31-34-1-1. DCS alleged that Mother does not

       have stable housing, lives with Grandmother who uses methamphetamine in

       Mother’s and A.H.’s presence, and that Mother leaves A.H. in Grandmother’s

       and S.R.’s care knowing that they use methamphetamine. DCS also alleged

       that domestic violence has occurred between Grandmother and Mother in

       A.H.’s presence.


[11]   An initial hearing was held on January 14, 2020. Counsel was appointed at

       Mother’s request. The court ordered Mother to deny Grandmother access to or

       communication with herself and A.H. The court allowed A.H. to remain in

       Mother’s care.




       Court of Appeals of Indiana | Memorandum Decision 20A-JC-879 | August 27, 2020   Page 4 of 14
[12]   A fact-finding hearing was held on February 25, 2020, and A.H. was

       adjudicated a CHINS. The trial court found in pertinent part:


               3. That on or around October 1, 2019, the Department of Child
               Services (DCS) received a report that [A.H.] got out of the hotel
               room … and was walking outside late at night.

                                                        ***

               5. That [Mother] underwent a drug screen[] for FCM Ligget,
               [Grandmother] refused.

               6. That there may have been an issue with the hotel lock, which
               was fixed by the motel, and [Mother’s] screen came back
               negative.

               7. That while the parties were staying at the motel, they struggled
               to be able to continue to pay for their room; the first week DCS
               helped them by getting a church to pay for a week, the following
               week Community Partners was put in and they paid for a week,
               the third week the family found another church to help pay.

               8. That evidence indicates that the family was waiting on
               [Mother and Grandmother’s] SSI checks to come in to continue
               to pay for the motel.

               9. That on or around October 26, 2019, DCS received another
               assessment on the family; [Mother] requested assistance from law
               enforcement because [Grandmother] came home late one
               evening and was strung out on drugs.

               10. That [Mother and Grandmother] got into a domestic violence
               situation while [A.H.] was present.

               11. That when law enforcement arrived on the scene,
               [Grandmother] had already left.

               12. That [Mother] was questioned and drug screened for DCS,
               but denied that [A.H.] was in the home.

               13. That [Mother] stated that [A.H.] was outside with [S.R.]
               (which is [Grandmother’s] ex-husband and they have a No
               Contact Order against each other).

       Court of Appeals of Indiana | Memorandum Decision 20A-JC-879 | August 27, 2020   Page 5 of 14
        14. That [Mother’s] screen came back negative while
        [Grandmother] again refused to screen.

        15. That on or around November 3, 2019 law enforcement were
        called out again for a domestic violence situation.

        16. That [Mother and Sister] disclosed to police that
        [Grandmother] was under the influence of methamphetamine
        and that [Grandmother and Mother] had been arguing about
        [Grandmother’s] drug use. [Grandmother] appeared impaired.

        17. That [Sister, Mother, and A.H.] left the motel and moved in
        with a family friend.

        18. That [Mother] indicated to FCM Love that [Grandmother]
        was on methamphetamine and that she couldn’t handle her
        mother, text messages from [Mother] stated that she believed that
        [Grandmother] needs help with her drug problem.

        19. [Mother and A.H.] stayed with the family friend for a couple
        weeks, but [Sister] went back to live with her mother,
        [Grandmother] at the motel.

        20. That FCM Supervisor Megan Richardson and FCM Love
        went to the motel to speak with [Grandmother and Sister].

        21. That [Grandmother] denied using illegal drugs and again
        refused to undergo a drug screen.

        22. That on or around November 5, 2019, [Sister and
        Grandmother] were going to be homeless.

        23. That DCS put in Community Partners, but [Grandmother]
        cussed out the caseworker and refused to receive services.

        24. That FCM Love called in a welfare check because
        [Grandmother and Sister] were texting [Mother] and saying they
        were going to commit suicide.

        25. That FCM Love went back a couple days later and
        [Grandmother and Sister] were out of the motel.

        26. That [Grandmother and Sister] went to move in with
        [Mother and A.H.] at a family friends home which lasted
        approximately a week.
Court of Appeals of Indiana | Memorandum Decision 20A-JC-879 | August 27, 2020   Page 6 of 14
        27. That [Sister] discovered she was pregnant and does not want
        to go back home with [Grandmother] because [Grandmother] is
        on drugs.

                                                 ***

        29. That [Mother, A.H., and Grandmother] later moved [into]
        the Roadway Inn Motel.

        30. That [Grandmother] continued to not screen for FCM Love
        and [Sister] refused to go home.

        31. That FCM observed multiple times of [Mother] leaving [A.H.
        with Grandmother] alone, despite the two DV reports, drug
        allegations, and the fact that [Grandmother] refused to screen.

        32. That later [Sister] moved back in with [Mother,
        Grandmother, and A.H.] at the motel.

        33. That on or around December 28, 2019, law enforcement were
        called out to the home.

        34. That it was reported by [Mother] that [Grandmother] jumped
        on [Mother’s] back and was pulling her hair, [Sister] had got into
        the middle of the fight trying to stop them and was punched in
        the stomach by [Grandmother] who was later arrested.

        35. That on or around December 30, 2019, FCM Love made an
        unannounced visit to the home, [Grandmother, A.H., S.R. and
        Sister] were at the motel.

        36. That [Grandmother] was not supposed to be there due to the
        no contact order.

        37. That [Grandmother] got up and left, [S.R.] was left with
        [A.H. and Sister].

        38. [S.R.] drug screened for DCS, the results came back positive
        for methamphetamine/amphetamine.

        39. That FCM Love called in a welfare check later that evening
        and law enforcement found [Grandmother, Mother, Sister and
        S.R.] in the motel.



Court of Appeals of Indiana | Memorandum Decision 20A-JC-879 | August 27, 2020   Page 7 of 14
        40. That [Grandmother] was arrested for two counts of invasion
        of privacy, and possession of meth, and paraphernalia.

        41. That DCS then requested [Grandmother’s] access to [Sister]
        be restricted which was granted.

        42. That [S.R.] admitted to [Sister] being a CHINS, but
        [Grandmother] denied.

        43. That DCS later requested a no contact order between
        [Grandmother and A.H.], which was granted.

        44. That [Grandmother] currently has the following pending
        criminal cases for which the Court took judicial notice:

             [Four criminal cause numbers redacted]

        45. That [Mother], in open Court, refused to keep [Grandmother]
        from [A.H.], seemingly [] believ[ing] that there was no longer a
        problem and that she could supervise [Grandmother].

        46. Due to the child’s young age, she is unable to protect herself
        from domestic violence in the home and needs supervision by a
        sober caregiver.

        47. That coercive intervention of the Court is necessary to protect
        this child due to the child’s young age.

        48. Coercive intervention of the Court is needed to continue to
        provide services and protect the children.

        49. That there are continued and imminent concerns for the
        child, including but not limited to, being exposed to domestic
        violence and substance abuse.

        50. That Mother has made no apparent effort to resolve any
        unmet financial need.


Appellant’s App. pp. 85–87. The trial court ordered A.H. to remain in Mother’s

care. Sister was also adjudicated a CHINS and placed in Mother’s care.




Court of Appeals of Indiana | Memorandum Decision 20A-JC-879 | August 27, 2020   Page 8 of 14
[13]   After holding the dispositional hearing, the trial court issued an order directing

       Mother to participate in recommended services and maintain contact with

       DCS. Mother was also ordered to allow DCS service providers to make

       unannounced visits, maintain appropriate housing and a source of income,

       submit to drug screens, and prevent any contact between Grandmother and

       S.R. with A.H. Mother now appeals the CHINS adjudication.


                                      Discussion and Decision
[14]   Mother argues that DCS failed to prove that A.H. was endangered or that the

       coercive intervention of the court was necessary. It is well-settled that


               [i]n all CHINS proceedings, the State must prove by a
               preponderance of the evidence that a child is a CHINS as defined
               by the juvenile code. When reviewing a CHINS adjudication, we
               do not reweigh evidence or judge witness credibility and will
               reverse a determination only if the decision was clearly
               erroneous. A decision is clearly erroneous if the record facts do
               not support the findings or if it applies the wrong legal standard
               to properly found facts.


       V.B. v. Ind. Dep’t of Child Servs., 124 N.E.3d 1201, 1208 (Ind. 2019) (citations

       and quotation marks omitted).


[15]   DCS alleged that A.H. was a CHINS pursuant to Indiana Code section 31-34-1-

       1, which provides that a child under the age of eighteen is a CHINS under the

       following circumstances:


               (1) the child’s physical or mental condition is seriously impaired
                   or seriously endangered as a result of the inability, refusal, or

       Court of Appeals of Indiana | Memorandum Decision 20A-JC-879 | August 27, 2020   Page 9 of 14
                   neglect of the child’s parent, guardian, or custodian to supply
                   the child with necessary food, clothing, shelter, medical care,
                   education, or supervision;

                   (A) when the parent, guardian, or custodian is financially able
                       to do so; or

                   (B) due to the failure, refusal or inability of the parent,
                       guardian, or custodian to seek financial or other
                       reasonable means to do so; 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.


[16]   “That final element guards against unwarranted State interference in family life,

       reserving that intrusion for families ‘where parents lack the ability to provide for

       their children,’ not merely where they ‘encounter difficulty in meeting a child’s

       needs.’” J.B. v. Ind. Dep’t of Child Servs., 2 N.E.3d 1283, 1287 (Ind. 2014)

       (quoting Lake Cty. Div. of Fam. & Child. Servs. v. Charlton, 631 N.E.2d 526, 528

       (Ind. Ct. App. 1994)). When considering this requirement, “courts should

       consider the family’s condition not just when the case was filed, but also when

       it is heard.” Gr.J. v. Ind. Dep’t of Child Servs., 68 N.E.3d 574, 580 (Ind. 2017)

       (quotations omitted). “Doing so avoids punishing parents for past mistakes

       when they have already corrected them.” Id. at 581.


[17]   Mother argues that DCS failed to prove that A.H. was endangered because

       Mother has secured housing and protects her child from Grandmother. Mother


       Court of Appeals of Indiana | Memorandum Decision 20A-JC-879 | August 27, 2020   Page 10 of 14
       contends that the incidents investigated by DCS were “initiated by

       Grandmother with Mother reacting in a sober and responsible ways. For

       instance, when Mother could not handle Grandmother’s behavior, Mother

       called the police and sent her child outside with a capable adult presumably so

       the child would not have to observe Mother’s attempts to deescalate

       Grandmother’s anger.” Appellant’s Br. at 12. Mother claims that she did not

       allow the upheaval in her family and unstable housing situation to impact A.H.

       Id.


[18]   Grandmother uses methamphetamine and struggles with anger management.

       Although Mother has called law enforcement when necessary to deescalate a

       violent situation, A.H. has witnessed Grandmother’s violence toward Mother.

       A child who witnesses domestic violence likely suffers significant psychological

       and developmental issues. See S.H. v. D.W., 139 N.E.3d 214, 216 (Ind. 2020).


               [M]any people assume that very young children are not affected
               at all by violence between their parents, erroneously believing
               that they are too young to know or remember what has
               happened. But even in the earliest phases of infant and toddler
               development, clear associations have been found between
               exposure to violence and post-traumatic symptoms and disorders.
               Indeed, the developing brain is most vulnerable to the impact of
               traumatic experiences before age one—and during the first three
               years, those experiences actually change the organization of the
               brain’s neural pathways.

       In re E.M., 4 N.E.3d 636, 644 (Ind. 2014) (quotations and citation omitted).

       Moreover, although A.H. has not been the victim of domestic violence, the

       CHINS statute does not require a court to wait until a tragedy occurs to

       Court of Appeals of Indiana | Memorandum Decision 20A-JC-879 | August 27, 2020   Page 11 of 14
       intervene. See In re R.P., 949 N.E.2d 395, 401 (Ind. Ct. App. 2011); see also In re

       N.E., 919 N.E.2d 102, 106 (Ind. 2010) (affirming a CHINS adjudication where

       there had been several incidents of domestic violence against Mother in the

       presence of her children).


[19]   DCS proved by a preponderance of the evidence that A.H. witnessed domestic

       violence in her home and was present while Grandmother was using or under

       the influence of methamphetamine. DCS also proved that Mother left A.H. in

       Grandmother’s care despite knowing that Grandmother uses

       methamphetamine and has physically abused Mother and Sister. This evidence

       was sufficient to establish that A.H. was seriously endangered by Mother’s

       neglect.


[20]   Mother also challenges the trial court’s conclusion that A.H. needs care that she

       is not receiving and is unlikely to be provided without the coercive intervention

       of the court. Mother argues that A.H.’s needs are currently met because she no

       longer resides with Grandmother and Grandmother will not be allowed to live

       in Mother’s home until she addresses her anger management issues. Tr. p. 64.


[21]   DCS argues that Mother does not understand the negative impact A.H. suffers

       when she witnesses domestic violence and that without DCS intervention,

       Mother would let Grandmother into her home and allow her to provide care for

       A.H.


[22]   Mother testified that Grandmother should be allowed to live in her home and

       that Grandmother is homeless. Tr. pp. 92–93. Mother stated that Grandmother

       Court of Appeals of Indiana | Memorandum Decision 20A-JC-879 | August 27, 2020   Page 12 of 14
       needs to be allowed to live in the home to assist Sister, who is pregnant. Tr. p.

       64. Mother’s testimony that Grandmother should address her anger

       management issues before she is allowed to live with and care for A.H. conflicts

       with other testimony that Grandmother should be allowed in their home

       immediately. See id. Mother stated that Grandmother would be allowed to

       move into her home while she is taking anger management classes. Tr. p. 71.

       Mother testified that Grandmother should be allowed to “help out” with A.H.

       and Sister. Tr. p. 68; see also Tr. p. 71.


[23]   Mother’s desire to have Grandmother immediately return to the home she lives

       in with A.H. was proved by Mother’s own testimony. Mother wants

       Grandmother’s assistance in caring for A.H. It is concerning that Mother

       testified that she did not know if Grandmother was abusing drugs even though

       she had previously told law enforcement officers and DCS service providers

       that Grandmother was under the influence of methamphetamine and needed

       help with her drug problem. Tr. pp. 31–32, 63, 70.


                                                 Conclusion
[24]   DCS proved that it is difficult for Mother to obtain stability for herself and A.H.

       when Grandmother is allowed to reside with the family. Despite Mother’s

       claims to the contrary, A.H. is not unaffected by Grandmother’s violent

       behavior and drug abuse. Because Mother lacks understanding that

       Grandmother’s presence in the family’s life endangers A.H., and because

       Mother intends to allow Grandmother to reside in her home unless she is not


       Court of Appeals of Indiana | Memorandum Decision 20A-JC-879 | August 27, 2020   Page 13 of 14
       permitted to do so by court-order, DCS proved that the coercive intervention of

       the court is necessary.


[25]   For all of these reasons, we conclude that DCS proved by a preponderance of

       the evidence that A.H. is a CHINS.


[26]   Affirmed.


       Bradford, C.J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JC-879 | August 27, 2020   Page 14 of 14
