MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                      Jun 08 2020, 8:42 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                                    ATTORNEY FOR APPELLEE
Isabella Bravo                                            Katherine A. Cornelius
Monroe County Public Defender’s                           Deputy Attorney General
Office                                                    Indianapolis, Indiana
Bloomington, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of G.B., K.W., and                          June 8, 2020
D.C. (Minor Children), Children                           Court of Appeals Case No.
Alleged to be in Need of                                  19A-JC-2435
Services;                                                 Appeal from the Monroe Circuit
N.C. (Mother),                                            Court
                                                          The Honorable Stephen R. Galvin,
Appellant-Respondent,
                                                          Judge
        v.                                                Trial Court Cause Nos.
                                                          53C07-1905-JC-276
                                                          53C07-1905-JC-277
Indiana Department of Child
                                                          53C07-1905-JC-278
Services,
Appellee-Petitioner.



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-JC-2435 | June 8, 2020                       Page 1 of 12
                                        Statement of the Case
[1]   N.C. (“Mother”) appeals the trial court’s adjudication of her three minor

      children, G.B., K.W., and D.C. (collectively, “the Children”) as Children in

      Need of Services (“CHINS”). Mother raises a single issue for our review,

      namely, whether the trial court clearly erred when it adjudicated the Children to

      be CHINS.


[2]   We affirm.


                                  Facts and Procedural History
[3]   Mother is mother to three minor children: G.B., born December 14, 2002;

      K.W., born December 16, 2003; and D.C., born January 20, 2011. Mother is

      married to No.C., who is stepfather to Mother’s three minor children

      (“Stepfather”). Mother has a long history of substance abuse, and her first

      contact with the Indiana Department of Child Services (“DCS”) was in 2004,

      when Mother agreed to participate in a “Program of Informal Adjustment”

      with DCS, which required her to, among other things, consent to drug screens

      and undergo a substance abuse assessment. Ex. Vol. 3 at 117. In 2016, a

      juvenile court adjudicated D.C. to be a CHINS, and Mother successfully

      completed services in 2017.


[4]   In May 2018, DCS received a report alleging that Stepfather had physically

      abused D.C. In July 2018, DCS received a report that Mother and Stepfather

      (collectively “Parents”) were neglecting D.C. and K.W. after Mother was

      arrested for stealing groceries from Kroger. And, in August 2018, DCS

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2435 | June 8, 2020   Page 2 of 12
      received a report that Parents were neglecting all three Children, and DCS

      removed the Children from Parents’ home. DCS filed petitions alleging that the

      Children were CHINS, but the juvenile court dismissed those petitions in

      November 2018. Parents agreed to participate in an informal adjustment.


[5]   In May 2019, when Mother admitted to using methamphetamine on multiple

      occasions, DCS filed new petitions alleging that the Children were CHINS.

      Following a fact-finding hearing, the court found as follows:


              3. [Mother] has a lengthy history of substance abuse and
              neglecting her children.

              4. [Mother] participated in a Program of Informal Adjustment
              for [K.W.] beginning August 11, 2004. Mother and [her then-
              husband R.B.] both agreed not to become intoxicated on alcohol,
              illegal drugs, or prescription drugs, while caring for the children.
              They agreed to obtain a substance abuse assessment and
              participate in recommended treatment. They agreed to drug
              screens. They did not successfully complete the Informal
              Adjustment.

              5. As noted in [G.B.]’s Clinical Interview and Assessment, both
              [G.B.] and [K.W.] were placed in guardianship with . . .
              [Mother]’s cousin from 2006 to 2018.

              6. [D.C.], age 5, was detained from his [Mother] on June 20,
              2016. . . . On July 28, 2016, [D.C.] was found to be a Child in
              Need of Services. . . .

              7. A dispositional hearing was also held on September 1, 2016.
              [Mother] was ordered to complete a substance abuse assessment
              and follow all recommendations, participate in random drug
              screens, abstain from the use of drugs and alcohol, participate in

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2435 | June 8, 2020   Page 3 of 12
        weekly home-based case management services, and complete a
        medication evaluation and follow all recommendations. Similar
        recommendations were made for [D.C.’s father] and [Stepfather].

        8. [Mother] began Suboxone treatment in October 2016. As
        noted in the Review Hearing Order entered December 12, 2016,
        [Stepfather] continued to use methamphetamine, hydrocodone,
        oxycodone, and THC.

        9. By May 2017, [Mother] and [Stepfather] were actively
        participating in a Suboxone program and complying with the
        dispositional orders. [Mother] was granted unsupervised
        parenting time with [D.C.]. The CHINS case was closed on
        November 6, 2017.

        10. On July 3, 2018, [Mother] was arrested for stealing $750
        worth of groceries. [Stepfather] was present in the parking lot
        when this occurred. At the time of her arrest, [Mother] became
        extremely upset, took a plastic fork, and began to stab her arms.
        Law enforcement placed handcuffs on her to stop her from
        harming herself. [Mother] then began to slam her head against
        the wall. After being placed in a patrol car, [Mother] continued
        to slam her head against the Plexiglas in the half-cage area.
        [Mother] later reported that she did not remember what had
        happened. She stated that she had relapsed and taken Xanax.
        She also took a high dose of Lemictal, her depression
        medication.

        11. The Department of Child Services offered to provide services
        to the family through a Program of Informal Adjustment.
        [Mother] and [Stepfather] refused to participate voluntarily.

        12. On August 15, 2018, petitions were filed alleging that [K.W.]
        and [D.C.] were Children in Need of Services.

        13. On August 17, 2018, [Mother] threatened to burn down her
        home with the children in it rather than have the children

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2435 | June 8, 2020   Page 4 of 12
        removed by the Department of Child Services. Following a
        hearing in the CHINS case, [Mother] struck [Stepfather] with her
        court papers outside the courtroom.

        14. The CHINS petitions were dismissed by Judge Frances Hill
        on November 20, 2018, after [Mother] and [Stepfather] agreed to
        participate in a Program of Informal Adjustment. [G.B.] was
        also included in the Informal Adjustment. The Preliminary
        Inquiry states that on May 18, 2018, [D.C.] had a cigarette
        burn on his arm that [Stepfather] stated was accidentally
        inflicted.

        15. [K.W.] and [G.B.] were under the care of a guardian until
        2018. The first time [Mother] had custody of all three children
        was shortly before the signing of [the] Informal Adjustment.

        16. Pursuant to the terms of the Informal Adjustment, [Mother]
        and [Stepfather] were again offered substance abuse treatment,
        random drug screens, home-based counseling, and intensive
        family preservation services—including Family Centered
        Therapy.

        17. [Mother] and [Stepfather] began to participate in a Suboxone
        program. [Mother] tested positive for amphetamine and
        methamphetamine on December 10, 2018. Thereafter, she
        regularly tested positive for her prescription buprenorphine and
        THC. [Stepfather] also tested positive for amphetamine and
        methamphetamine on December 10 and December 14, 2018.

        18. When confronted with the positive drug screens, [Mother]
        adamantly denied using. However, when [Stepfather] admitted
        to using methamphetamine, [Mother] also admitted [to using
        methamphetamine]. Although [Mother] and [Stepfather] both
        admitted to relapsing on methamphetamine, both gave different
        dates for their drug use. They gave six different dates for
        methamphetamine use in November and December. They stated


Court of Appeals of Indiana | Memorandum Decision 19A-JC-2435 | June 8, 2020   Page 5 of 12
        that the stress of having the children back in their home caused
        them to relapse.

        19. [Mother] testified that she did not know what caused her
        relapse. However, she testified that she had never had [G.B.]
        before and it was too much for her. She testified that [G.B.] had
        many explosive days and he was physical with her.

        20. [Stepfather] continued to use heroin. On February 20, 2019,
        [Mother] and [Stepfather] agreed to a Safety Plan that prohibited
        [Stepfather] from being alone with the children. On the same
        day, [Stepfather] violated the Safety Plan by leaving the home
        with [K.W.] While [Stepfather] and [K.W.] were out of the
        home, [Mother] left [D.C.] and [G.B.] alone downstairs while
        she remained upstairs.

        21. While the children were left alone, [G.B.] sexually molested
        [D.C.] When [Stepfather] and [K.W.] returned home, they
        found both boys had their pants down. Both boys admitted that
        [G.B.] had asked [D.C.] to perform oral sex and he had
        complied. [D.C.] reported that [G.B.] had anally penetrated him.
        [G.B.] denies this.

        22. During a Clinical Interview and Assessment on February 26,
        2019, [Mother] admitted that she was aware that [G.B.] had been
        watching pornography that included incest, younger children,
        and “rough sex.” She described ongoing physical aggression by
        [G.B.] against all members of the family, particularly his younger
        brother. [G.B.] sent his sister to the hospital after stomping on
        her stomach a few years ago. [G.B.] has been diagnosed with
        ADHD and disruptive mood dysregulation disorder. He takes
        medication for these diagnoses.

        23. [Mother] was aware that [D.C.] has slashed tires with knives
        when left unsupervised. The school requires that [D.C.] be
        escorted to and from school due to behavioral issues. [Mother]
        knows that [D.C.] is a high needs child who requires supervision.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2435 | June 8, 2020   Page 6 of 12
        24. [Mother] testified that she was not supervising the children
        because she was ill and that the children were only left alone for
        15 minutes. The Court does not accept this testimony as truthful.

        25. At the hospital, [Mother] and [Stepfather] both stated that
        their urine screens would be positive for marijuana. [Mother]
        and [Stepfather] have continued to use marijuana. [Mother]
        testified that using marijuana is risky for her sobriety.

        26. On May 8, 2019, [Mother] participated in an evaluation at
        Centerstone, the local mental health center. [Mother] admitted
        to an extensive history of substance abuse, including the
        intravenous use of methamphetamine and heroin, abuse of
        Xanax, and use of opioid medications. She was hospitalized at
        Valle Vista for substance abuse treatment in 2016. She was
        diagnosed with schizoaffective disorder, bipolar type. She has a
        history of manic episodes. As a teen, she suffered auditory
        hallucinations that told her to harm herself. She was hospitalized
        as a teen. She has a history of suicidal thoughts and attempts,
        though none recently. She was also diagnosed with PTSD and
        opioid use disorder, severe, in sustained remission; cannabis use
        disorder, moderate; and stimulant use disorder, mild.

        27. [Mother] had previously participated in a substance abuse
        evaluation at Centerstone on September 25, 2018. At the time,
        she was diagnosed with schizoaffective disorder, bipolar type,
        and polysubstance use disorder, moderate.

        28. [Mother] and [Stepfather] continued to test positive for THC
        throughout the period of the Informal Adjustment. [K.W.]
        regularly tested positive for THC throughout March 2019. On
        May 16, 2019, the Program of Informal Adjustment was
        extended for an additional three months.

        29. In May 2019, [Mother] and [Stepfather] tested positive for
        methamphetamine. [Mother] admitted to using
        methamphetamine on multiple occasions. She stated that

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2435 | June 8, 2020   Page 7 of 12
        [Stepfather] could not stop using because he was in pain from
        lupus. She admitted she shoots up methamphetamine. [Mother]
        stated that [Stepfather] is a trigger for her drug use.

        30. [Mother] testified that [Stepfather] does not have a drug
        problem because he has not used methamphetamine since May.
        She does not believe his ongoing use of marijuana affects his
        sobriety.

        31. On May 4, [Stepfather] was arrested at Kohl’s with [K.W.]’s
        boyfriend.

        32. On May 21, 2019, [Mother] had a large gash in her arm. She
        stated that she had flipped a table. [Mother] told her caseworker
        that she wanted to die every day.

        33. The children were removed from their [Mother] and
        [Stepfather] on May 21, 2019.

        34. As a result of the molestation, [G.B.] was placed at Gibault
        where he is receiving treatment for sexually maladaptive
        behavior. [Mother] admits that the children need therapy.

        35. [K.W.] became pregnant at age 14. [Mother] told
        caseworker Rebecca Geiselman that she assumed [K.W.] was
        sexually active. [Mother] stated that she was not aware of the
        age of consent for sexual activity. Prior to learning the age of
        consent, [Mother] was fine with [K.W.] having a relationship
        with an older individual.

        36. [Mother] testified that [K.W.] is mature and is a great
        mother at age 15. This characterization is unrealistic. [K.W.]’s
        baby was born positive for marijuana. The identity of the father
        is not known. [K.W.] has a history of self-harming behavior.

                                                ***


Court of Appeals of Indiana | Memorandum Decision 19A-JC-2435 | June 8, 2020   Page 8 of 12
              39. In light of the ongoing substance abuse by [Mother and
              Stepfather], the ongoing neglect of the children by all of their
              parents, and the children’s extreme behavioral problems, the
              coercive intervention of the court is clearly necessary to ensure
              the safety of [G.B.], [K.W.], and [D.C.]


      Appellant’s App. Vol. 2 at 35-39. The court then adjudicated the Children to be

      CHINS and entered a dispositional order following a hearing. This appeal

      ensued.


                                     Discussion and Decision
[6]   Mother asserts that the trial court clearly erred when it adjudicated the Children

      to be CHINS. As our Supreme Court has explained:


              In 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).


[7]   DCS alleged that the Children were 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:



      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2435 | June 8, 2020   Page 9 of 12
              (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

              (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.


      As our Supreme Court has explained, “[t]hat 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. (In re S.D.), 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. (In re D.J.), 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.


[8]   Mother does not challenge the juvenile court’s finding that each of the

      Children’s physical or mental condition is seriously endangered. Rather, her

      sole contention on appeal is that the intervention of the court is not required to

      coerce Mother to provide the care and treatment the Children need. In
      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2435 | June 8, 2020   Page 10 of 12
       particular, Mother maintains that, while she needed help with the Children

       previously, she has been recently “in compliance with services” and, therefore,

       “the need for coercive intervention is not ongoing.” Appellant’s Br. at 9, 11.


[9]    In support of her contention, Mother cites our Supreme Court’s opinion in In re

       D.J., 68 N.E.3d at 574. In that case, DCS filed petitions alleging that the

       children were CHINS after one of them almost drowned in a bathtub and DCS

       found deplorable conditions in the parents’ home. Services provided to the

       parents included as follows: “parental psychological evaluations, drug screens,

       parenting curriculum, homemaker services (cleaning the home and keeping it

       clean), home-based individual and family therapy, unsupervised visitation for

       Father, and supervised visitation for Mother.” Id. at 577. At the time of the

       fact-finding hearing on the CHINS petitions, “Parents had completed or were in

       the process of completing all services [DCS] required. [DCS] deferred family

       homemaker services because Parents had already cleaned the house, and the

       court deferred Father’s psychological evaluation for unspecified reasons.” Id.

       Still, the juvenile court found that the children were CHINS.


[10]   On appeal, our Supreme Court held that the juvenile court erred when it found

       that the children were CHINS. In particular, the Court observed that


               [t]he trial court’s CHINS order included factual findings that
               amply support its conclusion that Parents required coercive
               intervention early in the CHINS process. But those findings did
               not show that Parents needed ongoing coercive intervention
               throughout the process, and they certainly did not show that
               Parents needed such intervention by the time of the fact-finding

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2435 | June 8, 2020   Page 11 of 12
               hearing months later. To the contrary, the record shows that
               Parents eventually cooperated with the Department’s services
               and had satisfactorily completed all services (except those
               deferred by the Department or the court) by the time of the fact-
               finding hearing.


       Id. at 581 (emphasis original).


[11]   Mother’s reliance on In re D.J. is misplaced, as the facts are readily

       distinguishable from this case. Here, as DCS points out, Mother tested positive

       for methamphetamine in May 2019, just two months before the final hearing,

       and she admitted to smoking marijuana in June 2019. Given Mother’s long

       history of substance abuse and mental illness, her continued substance abuse is

       compelling evidence that the coercive intervention of the court is necessary to

       ensure that the Children receive the care they need. Mother’s attempt to

       minimize her continued substance abuse is not well taken. And her contentions

       on appeal amount to a request that we reweigh the evidence, which we will not

       do. The juvenile court’s detailed findings are supported by the evidence and are

       more than adequate to establish that the family’s need for court intervention to

       protect the Children is ongoing. In sum, we hold that DCS presented sufficient

       evidence to support the juvenile court’s determination that the Children are

       CHINS.


[12]   Affirmed.


       Kirsch, J., and Brown, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2435 | June 8, 2020   Page 12 of 12
