                                                                  FILED
MEMORANDUM DECISION
                                                             Aug 17 2016, 7:14 am

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



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Rebecca R. Vent                                           Gregory F. Zoeller
Office of the Howard County Public Defender               Attorney General of Indiana
Deputy Public Defender
                                                          Robert J. Henke
Kokomo, Indiana
                                                          David E. Corey
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of: Child N.J. and                          August 17, 2016
J.J., Children in Need of                                 Court of Appeals Case No.
Services,                                                 34A02-1601-JC-87
                                                          Appeal from the Howard Circuit
N.J. (Father),                                            Court
Appellant-Respondent,                                     The Honorable Lynn Murray, Judge
                                                          Cause Nos. 34C01-1510-JC-318;
        v.
                                                          34C01-1510-JC-319

Indiana Department of Child
Services,
Appellee-Petitioner.




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1601-JC-87 | August 17, 2016    Page 1 of 12
                                          Case Summary
[1]   Appellant-Respondent N.J. (“Father”) appeals from the juvenile court’s

      adjudication that Child N.J. and J.J. (collectively, “the Children”) are children

      in need of services (“CHINS”). In early October of 2015, Appellee-Petitioner

      the Department of Child Services (“DCS”) received a report of drug use in the

      home of Father, who had primary physical custody of the Children at the time.

      DCS removed the Children from the home after evidence of a

      methamphetamine lab was found in Father’s home.


[2]   DCS petitioned the juvenile court to adjudicate Children to be CHINS. At the

      initial detention hearing, Mother agreed with the Children’s removal from

      Father’s care. At the CHINS hearing in December of 2015, Mother stipulated

      that the Children were CHINS. Child N.J. testified that Father struck him

      when Father found out that Child N.J. disapproved of Father’s illegal drug

      activities and that he was afraid to be in Father’s home. The juvenile court

      found the Children to be CHINS and ordered a dispositional hearing. In its

      dispositional order, the juvenile court ordered that the Children remain in their

      placement outside of Father’s home and that Father and Mother participate in

      various services. Father challenges several of the juvenile court’s findings as

      unsupported by the record. While we agree with Father’s argument regarding

      one finding, we conclude that that error can only be considered harmless. As

      such, we affirm.



                            Facts and Procedural History
      Court of Appeals of Indiana | Memorandum Decision 34A02-1601-JC-87 | August 17, 2016   Page 2 of 12
[3]   On October 1, 2015, DCS received reports of drug use in Father’s home, which

      he shared with the Children, Child N.J., (born July 7, 2004) and J.J. (born

      August 1, 2005). In addition, it was reported to DCS that the Children stayed

      with friends “off and on[,]” that Father often left them unsupervised, that they

      would wake up at night to find themselves alone, and that there were bottles in

      the home containing white powder and “little rocks[.]” Appellant’s App. p. 20.

      J.J. reported that Father had locked her outside in a storm because his friends

      were over and they did not want her in the house. Child N.J. also reported that

      Father had struck him when Child N.J. confronted Father about his drug use.

      On October 2, 2015, the Children were removed from Father’s care after a

      methamphetamine lab was discovered in the home.


[4]   On October 6, 2015, DCS petitioned the juvenile court to have the Children

      declared CHINS. In summary, the CHINS petitions alleged the following: that

      Father was operating a methamphetamine lab in his home, Father often leaves

      the Children unsupervised, Father hit Child N.J. when Child N.J. confronted

      Father about his drug use, bottles with white power were found in Father’s

      home, Father refused to cooperate with DCS’s investigation, and Father is on

      the Indiana Sex Offender Registry for sexual misconduct with a minor.


[5]   On December 7, 2015, the juvenile court held a CHINS hearing, at the

      beginning of which Mother, who is not participating in this appeal, stipulated to

      the allegations in the CHINS petitions and that the Children were CHINS.

      FCM Duffy testified that following the Children’s removal, Father refused to

      come to the DCS to speak with her and told her that he would contact her

      Court of Appeals of Indiana | Memorandum Decision 34A02-1601-JC-87 | August 17, 2016   Page 3 of 12
      through an attorney but did not. Child N.J. testified that he had seen Sprite

      bottles in Father’s home that contained “[r]ock-type stuff.” Tr. p. 27. Child

      N.J. also testified that the bottles in Father’s home made him feel unsafe.


[6]   On December 7, 2015, Father submitted to a drug screen, which returned

      positive results for methamphetamine, amphetamines, THC, and the opiates

      morphine and 6-Acetylomorphine. Father’s drug screen from December 16,

      2015, was positive for methamphetamine and amphetamines. The drug screen

      results were included in the predispositional reports filed on December 23,

      2015.


[7]   Meanwhile, on December 11, 2015, the juvenile court entered its order

      declaring the Children to be CHINS. The order contained the following

      findings:


              1.     [Father and Mother] are the parents of two (2) minor
              children, namely: [Child N.J.], born July 7, 2004, age [(11)]
              years; and [J.J.], born August 1, 2005, age ten (10) years.
              2.       Father is the children’s physical and legal custodian.
              3.    According to the Indiana Sex Offender Registry, father’s
              address is [redacted].
              4.     On October 1, 2015, DCS received a report alleging
              concerns for the children while in father’s custody, including an
              allegation that there was drug use in the home and a
              methamphetamine lab present at the residence[.]
              5.     The DCS by [FCM Duffy] investigated the report and
              spoke with both children regarding the allegations. Father
              refused to speak with [FCM Duffy]. At the conclusion of its
              investigation, the DCS removed the children and placed them in
              foster care and subsequently, relative care.
      Court of Appeals of Indiana | Memorandum Decision 34A02-1601-JC-87 | August 17, 2016   Page 4 of 12
        6.     After a detention hearing held October 6, 2015, the court
        found the removal of the children from the parents was required
        for their well-being, and authorized DCS to file petitions alleging
        each child to be a child in need of services.
        7.     A fact-finding hearing was held December 7, 2015. Mother
        admitted and stipulated to the allegations the children were each
        a child in need of services. Evidence was heard, including
        testimony by [FCM Duffy], the child [Child N.J.], and mother.
        Father refused to testify.
        8.    [Child N.J.] has observed bottles containing rock-like
        substances at his father’s home.
        9.    [Child N.J.] is aware other persons have purchased
        medicines for his father.
        10. [Child N.J.] has heard from father’s friend that his father
        was caught with a meth lab.
        11. After [Child N.J.] asked his father about him using drugs,
        father hit him.
        12.      [Child N.J.] feels unsafe at father’s home.
        13. Although not the custodial parent, mother provides
        necessities for the children such as clothing and school supplies.
        14. Ind. Code § 31-34-1-1 provides a child is a child in need of
        services if (1) the child’s physical or mental condition is seriously
        impaired or seriously endangered as 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 (8) is unlikely to be provided or accepted without the
        coercive intervention of the court.
        15. The court finds that the DCS has proved by a
        preponderance of evidence that [the Children] are each a child in
        need of services as defined in Ind. Code § 31-34-1-1. The court
        finds by a preponderance of evidence that the children’s custodial
        parent has exposed the children to illegal drug activity placing
Court of Appeals of Indiana | Memorandum Decision 34A02-1601-JC-87 | August 17, 2016   Page 5 of 12
              their mental and physical condition in serious danger, and the
              children require the coercive action by the court to place them
              outside the dangerous environment.
      Appellant’s App. pp. 10-11.


[8]   On January 4, 2016, the juvenile court held a dispositional hearing. That day,

      the juvenile court issued a dispositional order, concluding that it was in the best

      interests of the Children to be removed from Father’s home because of an

      inability, refusal, or neglect to provide shelter, care, and/or supervision at that

      time and that the Children needed protection that could not be provded in

      Father’s home.


[9]   The juvenile court adopted the statements made in the predispositional report,

      including all attachments and exhibits, as findings and made the following

      findings regarding the situation:


              The Court finds that it is in the best interests of the child[ren] to
              be removed from the home environment and remaining in the
              home would be contrary to the welfare of the child[ren] because:
                  •    of an inability, refusal or neglect to provide shelter, care,
                       and/or supervision at the present time
                  •    the child[ren] need[] protection that cannot be provided in
                       the home
              The Court finds that reasonable efforts to prevent or eliminate
              removal of the child[ren] were not required due to the emergency
              nature of the situation, as follows: on October 1, 2015, an active
              Methamphetamine Lab was found in the home at [redacted]. On
              October 2, 2015, [J.J.] disclosed that her home is not safe
              because: [Father] uses methamphetamine, [Father] locked her
              outside in a storm because his friends were over and they did not
              want her in the house, [Father] would leave her home alone at
      Court of Appeals of Indiana | Memorandum Decision 34A02-1601-JC-87 | August 17, 2016   Page 6 of 12
               night and she had to fend for herself. On October 2, 2015, [Child
               N.J.] disclosed knowledge of the Methamphetamine Lab,
               [Father’s] substance abuse, and not being adequately supervised
               by [Father]. [Child N.J.] further disclosed that when he
               confronted [Father] about the Methamphetamine Lab, [Father]
               hit him on the head.
       Appellant’s App. p. 13.
[10]   The Juvenile court ordered that the Children maintain their current placement

       outside Father’s home and Father’s participation in parenting, mental health,

       and substance abuse screens; drug screens; and visitation contingent on

       negative drug screens.



                                  Discussion and Decision
[11]   With respect to CHINS determinations, the Indiana Supreme Court has stated

       the following:


               [a] CHINS proceeding is a civil action; thus, “the State 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). We neither reweigh the evidence nor judge
               the credibility of the witnesses. Egly v. Blackford County Dep’t of
               Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We consider
               only the evidence that supports the [juvenile] court’s decision and
               reasonable inferences drawn therefrom. Id. We reverse only
               upon a showing that the decision of the [juvenile] court was
               clearly erroneous. Id.
               …
               There are three elements DCS must prove for a juvenile court to
               adjudicate a child a CHINS. DCS must first prove the child is
               under the age of eighteen; DCS must prove one of eleven
               different statutory circumstances exist that would make the child
       Court of Appeals of Indiana | Memorandum Decision 34A02-1601-JC-87 | August 17, 2016   Page 7 of 12
               a CHINS; and finally, in all cases, DCS must prove the child
               needs care, treatment, or rehabilitation that he or she is not
               receiving and that he or she is unlikely to be provided or accepted
               without the coercive intervention of the court. In re N.E., 919
               N.E.2d at 105.
       In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012) (footnote omitted).


[12]   Indiana Code section 31-34-1-1, which outlines one of the eleven statutory

       circumstances under which a child is a CHINS if satisfied, provides that a child

       is a CHINS before the child becomes eighteen years of age if:


               (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.
[13]   As the Indiana Supreme Court has observed,


               Juvenile law is constructed upon the foundation of the State’s
               parens patriae power, rather than the adversarial nature of corpus
               juris. Kent v. United States, 383 U.S. 541, 554, 86 S. Ct. 1045, 16
               L. Ed. 2d 84 (1966). Indeed, juvenile court jurisdiction “is rooted
               in social welfare philosophy rather than in the corpus juris.” Id.
               The purpose of the CHINS adjudication is to “protect the
               children, not punish parents.” In re N.E., [919 N.E.2d 102, 106
               (Ind. 2010)]. The process of the CHINS proceeding focuses on
               “the best interests of the child, rather than guilt or innocence as
               in a criminal proceeding.” Id.
       In re K.D., 962 N.E.2d at 1255.
       Court of Appeals of Indiana | Memorandum Decision 34A02-1601-JC-87 | August 17, 2016   Page 8 of 12
[14]   Pursuant to Indiana Code section 31-34-19-10,


               (a) The juvenile court shall accompany the court’s dispositional
               decree with written findings and conclusions upon the record
               concerning the following:
                   (1) The needs of the child for care, treatment, rehabilitation,
                   or placement.
                   (2) The need for participation by the parent, guardian, or
                   custodian in the plan of care for the child.
                   (3) Efforts made, if the child is a child in need of services, to:
                       (A) prevent the child’s removal from; or
                       (B) reunite the child with;
               the child’s parent, guardian, or custodian in accordance with
               federal law.
                   (4) Family services that were offered and provided to:
                       (A) a child in need of services; or
                       (B) the child’s parent, guardian, or custodian;
               in accordance with federal law.
                   (5) The court’s reasons for the disposition.
                   (6) Whether the child is a dual status child under IC 31-41.
               (b) The juvenile court may incorporate a finding or conclusion
               from a predispositional report as a written finding or conclusion
               upon the record in the court’s dispositional decree.

[15]   Father argues that the juvenile court’s conclusion that section 31-34-1-1 was

       satisfied constitutes an abuse of discretion because the record did not contain

       sufficient evidence that the Children’s physical or mental condition was

       seriously impaired or seriously endangered. It is worth noting that DCS was

       not required to establish that the Children had already been harmed. “The

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

       intervene.” In re A.H., 913 N.E.2d 303, 306 (Ind. Ct. App. 2009) (citing Roark v.

       Roark, 551 N.E.2d 865, 872 (Ind. Ct. App. 1990)). “Rather, a child is a CHINS


       Court of Appeals of Indiana | Memorandum Decision 34A02-1601-JC-87 | August 17, 2016   Page 9 of 12
       when he or she is endangered by parental action or inaction.” Id. Father

       challenges the juvenile court’s findings in its dispositional decree that he

       exposed the Children to illegal drug use in his home; he abused Child N.J.;

       Child N.J. feels unsafe in his home; and he failed to properly supervise the

       Children. We conclude, however, as previously described, that the record

       contains ample evidence to support the juvenile court’s disposition.


                                           A. Illegal Drug Use
[16]   Father argues that the record contains insufficient evidence of illegal drug use in

       his home, citing the lack of photographic evidence, law enforcement testimony,

       forensic analysis evidence, and criminal charges. FCM Duffy testified that she

       received confirmation from her supervisor that a methamphetamine lab had

       been found in Father’s home. DCS also presented evidence that Father told

       another person that he was caught with a methamphetamine lab in his home

       and that this person told Child N.J. Child N.J. testified that he observed bottles

       containing rock-like substances in Father’s home and was aware that Father

       had had other persons buy him medicines. It should also be noted that Father

       submitted to drug screens on the day of the CHINS hearing and nine days

       afterwards, both of which indicated positive results for methamphetamine and

       amphetamines and the first of which also indicated the presence of THC and

       the opiates morphine and 6-Acetylomorphine.


[17]   Moreover, Father refused to testify at the CHINS hearing, invoking his right

       “to remain silent in regard to a criminal case.” Tr. p. 14. It is well-settled that

       “[a]lthough the refusal to testify in a civil case cannot be used against the one
       Court of Appeals of Indiana | Memorandum Decision 34A02-1601-JC-87 | August 17, 2016   Page 10 of 12
       asserting the privilege in a subsequent criminal proceeding, the privilege against

       self-incrimination does not prohibit the trier of fact in a civil case from drawing

       adverse inferences from a witness’[s] refusal to testify.” Gash v. Kohm, 476

       N.E.2d 910, 913 (Ind. Ct. App. 1985), trans. denied. The juvenile court was

       therefore within its rights to draw a negative inference regarding Father’s

       participation in illegal activity from Father’s refusal to testify at the CHINS

       hearing. Father’s argument is an invitation to reweigh the evidence, which we

       will not do.


                                        B. Abuse of Child N.J.
[18]   Father contends that DCS presented insufficient evidence that he has abused

       Child N.J. Child N.J. testified that Father “kind of hit me once” when Father

       found out that Child N.J. was unhappy about Father’s drug use. Father now

       argues on appeal that Child N.J.’s knowledge of Father’s drug use was based on

       hearsay from another individual. Father’s argument in this regard is just an

       invitation to reweigh the evidence, which we will not do.


                    C. Child N.J. Feeling Unsafe in Father’s Home
[19]   Father seems to challenge the juvenile court’s finding that Child N.J. feels

       unsafe in Father’s home. When asked if anything in Father’s home made him

       feel unsafe, however, Child N.J. testified “the bottles.” Tr. p. 29. At the very

       least, this testimony supports the juvenile court’s finding. Moreover, a

       reasonable inference can be drawn that Child N.J. felt unsafe because Father




       Court of Appeals of Indiana | Memorandum Decision 34A02-1601-JC-87 | August 17, 2016   Page 11 of 12
       has struck him. Again, Father invites us to reweigh the evidence, which we will

       not do.


                                        D. Failure to Supervise
[20]   Finally, Father challenges the juvenile court’s finding in the dispositional order

       that Father failed to provide adequate supervision to the Children. DCS

       concedes that no evidence admitted during the CHINS proceeding supports this

       finding. DCS, however, contends that the finding amounts to nothing more

       than harmless error. “[E]ven an erroneous finding is not fatal to a trial court’s

       judgment if the remaining valid findings and conclusions support the judgment,

       rendering the erroneous finding superfluous and harmless as a matter of law.”

       Curley v. Lake Cty. Bd. of Elections & Registration, 896 N.E.2d 24, 32 (Ind. Ct.

       App. 2008) (citation omitted), trans. denied. We agree with DCS that the

       juvenile court’s error does not necessitate reversal of the dispositional decree.

       Evidence of Father’s illegal drug activity in the home shared with the Children,

       which was clearly the focus of the juvenile court’s attention, along with

       evidence of physical abuse of Child N.J. and Child N.J.’s fear are more than

       enough to sustain the juvenile court’s determination that the Children are

       CHINS. Any error the juvenile court made in finding that the Children were

       inadequately supervised can only be considered harmless. Father has failed to

       establish that the juvenile court’s disposition is clearly erroneous.


       The judgment of the juvenile court is affirmed.


       Pyle, J., and Altice, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 34A02-1601-JC-87 | August 17, 2016   Page 12 of 12
