Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                     FILED
                                                       Dec 10 2012, 8:43 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,                      CLERK
                                                             of the supreme court,
collateral estoppel, or the law of the case.                 court of appeals and
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ATTORNEYS FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

JOEL C. WEINEKE                                  ROBERT HENKE
Weineke Law Office, LLC                          KARRIE MCCLUNG
Plainfield, Indiana                              CHRISTINE REDELMAN
                                                 DCS Central Administration
CARA SCHAEFER WIENEKE                            Indianapolis, Indiana
Special Assistant to the State Public Defender
Plainfield, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

IN RE THE MATTER OF A.R., et al.,                )
ALLEGED CHILDREN IN NEED                         )
OF SERVICES:                                     )
                                                 )
T.M., (Mother),                                  )
                                                 )
       Appellant- Respondent,                    )
                                                 )
               vs.                               )    No. 52A02-1205-JC-388
                                                 )
THE INDIANA DEPARTMENT OF                        )
CHILD SERVICES,                                  )
                                                 )
       Appellee-Petitioner.                      )


                        APPEAL FROM THE MIAMI CIRCUIT COURT
                             The Honorable Robert Spahr, Judge
                               Cause Nos. 52C01-1111-JC-59
                                          52C01-1111-JC-60
                                          52C01-1111-JC-61
                                          52C01-1111-JC-62
                                             December 10, 2012



                   MEMORANDUM DECISION - NOT FOR PUBLICATION


ROBB, Chief Judge

                                         Case Summary and Issue

        T.C. (“Mother”) appeals from the juvenile court’s order finding that each of her four

children was a child in need of services (“CHINS”) under Indiana Code section 31-34-1-1.

Mother raises one issue on appeal, which we restate as whether the evidence supported the

findings and the findings supported the judgment of the juvenile court. Concluding that the

findings and judgment of the juvenile court were proper, we affirm.

                                      Facts and Procedural History

        Mother has four children,1 who were all five years old or younger at the time of the

fact-finding hearing in question, which was split between February and April of 2012. The

father of the children was in jail at the time. The Indiana Department of Child Services

(“DCS”) became involved in this particular instance in May of 2011, following receipt of a

report regarding one of the children testing positive for marijuana at birth. However, DCS

had been involved with Mother and her children previous to this case. There had previously

been allegations of lack of supervision in 2007 and 2010, medical neglect in 2007, and a

drug-exposed infant in 2008.


        1
          It appears from the record that Mother may have more than four children, but that four of her children
were living with her at the times relevant to this case, and the proceedings here were directed at just four of her
children.

                                                        2
        In this instance, Mother agreed to an informal adjustment with services including

outpatient drug treatment and home-based parenting classes.2 In September 2011, DCS

received a report regarding sub-standard conditions at Mother’s home. The record indicates

that Mother cooperated with the informal adjustment initially, but then began to fail to fully

and consistently participate in services, and became difficult for her family case manager to

contact. Mother was discharged from outpatient substance abuse therapy for failure to

participate. DCS attempted to work with Mother and offer more home-based services as well

as allow her to come to the office for weekly drug tests on a day of her choosing. Thereafter,

it appears that Mother’s cooperation and communication with DCS declined precipitously.

Mother moved around and did not provide DCS with her changes in address, and did not

answer her phone when she had one or return DCS’s phone calls. Mother also claimed to be

working, but would not give DCS her employer contact information. It appears that her case

manager eventually had to physically go to the school of one of Mother’s children in order to

talk to Mother.

        In February of 2012, Mother tested positive for methamphetamines and THC

following an oral swab test, and then also tested positive for methamphetamines via a hair

sample test.3 Following these positive tests, the children were removed from Mother’s home

and were sent to live with a relative, and a CHINS petition was filed. At the dispositional



        2
           An informal adjustment is an agreement between DCS and a family where the family agrees to
participate in services in an effort to prevent the children from being formally deemed CHINS. See Ind. Code
§§ 31-34-8-1 to -7. The program may be implemented by an intake officer after a preliminary inquiry and
upon court approval, if the officer has probable cause to believe that the child is a CHINS. Id.
        3
            Mother had previously tested positive for THC in May of 2011, and for hydrocodone in November

                                                     3
hearing following the fact-finding hearing, the juvenile court adopted recommendations

regarding services that Mother would participate in, and ordered that the children were to

remain at the relative’s home while Mother worked on completing services. Additional facts

will be supplied as needed.

                                      Discussion and Decision

                                       I. Standard of Review

        When, as here, the juvenile court enters findings of fact and conclusions of law in a

CHINS determination, we apply a two-tiered standard of review. In re J.V., 875 N.E.2d 395,

402 (Ind. Ct. App. 2007), trans. denied. First, we determine whether the evidence supports

the findings, and second, we determine whether the findings support the judgment. Id. In

making this determination, we do not reweigh the evidence or reassess witness credibility.

Id. We will reverse only if, considering the evidence favorable to the juvenile court’s

judgment, the evidence does not support the findings or the findings do not support the

judgment. Id.

                                 II. Children in Need of Services

        The juvenile court found that Mother’s children were CHINS pursuant to Indiana

Code section 31-34-1-1, which states that:

        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

of 2011; Mother claimed that she had a prescription for the hydrocodone.

                                                    4
              (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.

Thus the statute has two prongs—the first is that the child must be endangered, and the

second is that the child will not receive needed care without the court’s intervention. Mother

claims that the first prong was not met in this case. The juvenile court issued findings of fact

following the fact-finding hearing, and found that:

       1.     Parents’ statements against interest admitting that children were in the
              presence of parents who used marijuana;
       2.     Mother’s test results using both oral swab test and hair specimen test
              were positive for methamphetamine in February, 2012;
       3.     Mother’s continual lack of cooperation and resistance to DCS services,
              stating it was “just weed;”
       4.     Mother keeps changing address, and Court does not find her credible on
              subject of where she is currently living;
       5.     Combination of neglect and refusal on Mother’s part to ensure children
              are properly cared for and supervised.

Appellant’s Appendix at 69 (findings were not numbered in the juvenile court’s order, but

have been numbered here for clarity). Mother argues that the first two findings are not

supported by the evidence, and that the second two findings do not alone establish the first

prong of the statute. Mother completely omits the fifth finding from her brief.

       We agree with Mother that the first finding, as stated, is not supported by the

evidence. The record shows that there was testimony regarding drug use by the parents

during the time in question, but there was no testimony that drugs were ever used in the

presence of the children or while the children were under the parents’ care. Case law

supports the proposition that drug use alone will not generally meet the first prong of the



                                               5
statute, where that use was not in the presence of the child in question or while the user was

caring for the child. White v. State, 547 N.E.2d 831, 836 (Ind. 1989) (concluding that “the

knowing exposure of a dependent to an environment of illegal drug use poses an actual and

appreciable danger to that dependent and thereby constitutes neglect regarding the

endangerment requirement of the offense,” in a case where the appellant provided his

daughter with marijuana and smoked it with her, the daughter observed him smoking

marijuana and intravenously injecting a white substance, and the daughter found hypodermic

needles stashed in the kitchen.); Perrine v. Marion Cnty. Office of Child Servs., 866 N.E.2d

269, 277 (Ind. Ct. App. 2007) (“The mere presence of drug paraphernalia in a bag in the

residence is insufficient to support a finding of neglect under Indiana Code Section 31-34-1-

1.”); C.A. Bean v. State, 818 N.E.2d 148, 152 n.3 (Ind. Ct. App. 2004) (“[W]e note that it is

not the possession of illegal drugs in the presence of children that endangers them but rather

the illegal use of drugs or dealing in illegal drugs which has been found to endanger children

when done in their presence.”) (emphasis in original); cf. In re J.L., 919 N.E.2d 561, 564

(Ind. Ct. App. 2009) (concluding that the child was a CHINS where the mother used drugs

while the child was asleep in another room but under her care and custody and thus “that

Mother knowingly exposed [the child] to an environment of illegal drug use, which resulted

in endangering [the child]’s physical or mental condition as the thirteen-month-old child was

left without any responsible adult care and supervision.”). Thus we agree with Mother that

the evidence does not support this finding.




                                              6
       Mother next invites us to review the drug test results de novo, claiming that that

finding was based solely on a paper record. However, Mother fails to recognize that there

was also important witness testimony and Mother’s own testimony regarding the tests and

their results. As stated above, we do not reweigh the evidence or reassess witness credibility.

We also note that the burden of proof needed to support these findings is a preponderance of

the evidence. Ind. Code § 31-34-12-3. DCS argues that the White case cited above stands

for the proposition that drug use alone is a sufficient reason to find that the children were

CHINS, but DCS misreads the case because in White, the parent in question used drugs in

the presence of the child, and even offered drugs to and used drugs with the child. White,

547 N.E.2d at 836. DCS further argues that lack of cooperation is sufficient to find that a

child is a CHINS if that lack of cooperation occurs during an informal adjustment. But DCS

provides no basis for that claim, nor can we find support for such a claim within the statute or

case law. An informal adjustment is a way for a parent to avoid a CHINS proceeding if the

parent cooperates with DCS without a hearing; it is not a pathway by which a child can be

found to be a CHINS based on a less stringent standard than the CHINS statute requires,

should the informal adjustment not work out. The CHINS statute provides requirements that

must be met in order for a child to be adjudicated a CHINS, regardless of whether an

informal adjustment was attempted first. We conclude that there was evidence to support this

finding, but that this finding alone does not support the judgment of the juvenile court

regarding the first prong of the statute, because there was no evidence in the record




                                               7
correlating Mother’s drug use to times when the children were present or under Mother’s

care.

        The fifth finding of the juvenile court, which Mother does not discuss in her brief, is

that there was a combination of neglect and refusal on Mother’s part to ensure that the

children were properly cared for and supervised. Considering only the evidence most

favorable to the juvenile court’s judgment, we conclude that there was evidence to support

this finding, and that this finding, in conjunction with finding number two that Mother tested

positive for drugs, does support the court’s judgment. A DCS predispositional report, which

was submitted into evidence during the fact-finding hearing without objection, noted that two

of Mother’s children had tested positive for drugs at birth, that DCS had been called to

Mother’s home to investigate sub-standard conditions apparently during the informal

adjustment period, and that there had been previous substantiated allegations of lack of

supervision and medical neglect. Combined with Mother’s apparent ongoing drug use, we

conclude that there was evidence to support the first prong of the statute.

        Mother argues that findings three and four of the juvenile court do not support the first

prong of the statute, but does not argue that they do not support the second prong of the

statute or that there was no evidence to support those findings. Having concluded above that

the first prong of the statute has been met, we conclude that findings three and four support

the second prong of the statute, and that there was ample evidence to support those findings.

It seems clear that without court intervention, Mother will not cooperate with DCS to address

her substance abuse and parenting issues.



                                                8
                                        Conclusion

       Concluding that there was evidence to support four out of five of the juvenile court’s

findings, and that those four findings together support the judgment of the court pursuant to

both prongs of the relevant statute, we affirm.

       Affirmed.

MAY, J., and PYLE, J., concur.




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