                                                                                  FILED
                                                                             Jun 29 2017, 11:19 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Daniel G. Foote                                             Curtis T. Hill, Jr.
Indianapolis, Indiana                                       Attorney General of Indiana
                                                            Marjorie Newell
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of: K.S. (Minor                               June 29, 2017
Child)                                                      Court of Appeals Case No.
                                                            49A02-1701-JC-38
      Child in Need of Services;
                                                            Appeal from the Marion Superior
J.J. (Mother),                                              Court
Appellant-Respondent,                                       The Honorable Marilyn Moores,
                                                            Judge
        v.                                                  The Honorable Rosanne Ang,
                                                            Magistrate
The Indiana Department of                                   Trial Court Cause No.
Child Services,                                             49D09-1606-2022
Appellee-Petitioner.




Pyle, Judge.




Court of Appeals of Indiana | Opinion 49A02-1701-JC-38 | June 29, 2017                         Page 1 of 9
                                          Statement of the Case
[1]   J.J. (“Mother”) appeals the juvenile court’s order adjudicating her son, K.S.

      (“K.S.”), to be a Child in Need of Services (“CHINS”). Mother argues that the

      Department of Child Services (“DCS”) failed to prove by a preponderance of

      the evidence that K.S.’s physical or mental condition was seriously impaired or

      seriously endangered as a result of Mother’s inability, refusal, or neglect to

      supply K.S. with necessary food, clothing, shelter, medical care, education, or

      supervision. Finding that DCS failed to present evidence, let alone sufficient

      evidence, that K.S.’s physical or mental condition was seriously impaired or

      seriously endangered and that Mother was unable to supply K.S. with necessary

      shelter, we reverse the CHINS adjudication.1


[2]   We reverse.


                                                         Issue
               Whether there is sufficient evidence to support the CHINS
               adjudication.


                                                         Facts
[3]   In June 2016, DCS received a report alleging that Mother had tested positive

      for marijuana after giving birth to K.S. Within twenty-four hours of K.S.’s




      1
       Mother also argues that there is insufficient evidence that K.S. needs care, treatment, or rehabilitation that
      was unlikely to be provided without the coercive intervention of the court. Because we reverse the juvenile
      court on Mother’s first issue, we need not address the second one.

      Court of Appeals of Indiana | Opinion 49A02-1701-JC-38 | June 29, 2017                               Page 2 of 9
      birth, DCS Family Case Manager Kwanza Johnson (“FCM Johnson”) went to

      Community North Hospital to speak with Mother. When FCM Johnson

      arrived at the hospital, Mother appeared to just be waking up. While Mother

      was still “pretty groggy,” FCM Johnson explained “what [she] was there for

      and the nature of [her] report.” (Tr. 17). Mother, who admitted that she had

      used marijuana two months earlier to increase her appetite during her

      pregnancy, became very “agitated and irate.” (Tr. 20). Mother refused FCM

      Johnson’s request that she submit to another drug screen. Mother told FCM

      Johnson that she had been living in a motel before being admitted to the

      hospital but that she planned to live with her cousin or mother following her

      discharge. Mother, however, refused to give FCM Johnson contact

      information for either her cousin or mother.


[4]   After stepping out of Mother’s hospital room and speaking with her supervisor

      by telephone, FCM Johnson “served [Mother] for court.” (Tr. 22). FCM

      Johnson explained that, given Mother’s behavior, DCS “had to restrict access

      to [K.S.].” (Tr. 22). The case manager further explained that restricted access

      meant that Mother “could not visit with the child or remove the child from the

      hospital.” (Tr. 23). When FCM Johnson “served [M]other with the papers for

      Court,” Mother “balled the paper up and threw it at [FCM Johnson] and told

      [FCM Johnson] to get the ‘f’ out of her room.” (Tr. 26). A few days later,

      Mother contacted FCM Johnson and asked if the case manager could explain

      what was happening. FCM Johnson returned to the hospital and reviewed

      DCS paperwork with Mother. Mother signed the documents as requested.


      Court of Appeals of Indiana | Opinion 49A02-1701-JC-38 | June 29, 2017   Page 3 of 9
      FCM Johnson “explained what we were doing and why we were involved . . .

      .” (Tr. 27). Mother advised the case manager that after she was released from

      the hospital, she would be living at her cousin’s house. Mother was calm and

      explained why she had initially been afraid of FCM Johnson. At this time,

      K.S. was “feeding well. . . . [T]here was nothing to note other than that.” (Tr.

      25). There was no evidence presented by DCS that K.S. tested positive for

      marijuana.


[5]   DCS immediately filed a petition alleging that K.S. was a CHINS. Specifically,

      the petition alleged that Mother, who had admitted using marijuana while she

      was pregnant, had failed to provide K.S. with a safe, stable and appropriate

      living environment that was free from substance abuse. The petition further

      alleged that Mother was homeless and lacked a plan for obtaining and

      maintaining stable housing. DCS placed K.S. in foster care upon his discharge

      from the hospital.


[6]   Testimony at the CHINS fact-finding hearing revealed that after it filed the

      petition alleging that K.S. was a CHINS, DCS had referred Mother to home-

      based case management services and supervised visitation. Home-based

      services case manager Gianna Simpson (“Case Manager Simpson”) testified

      that she supervised two visits between Mother and K.S. in June 2016. During

      the visits, Mother “was very engaged with her son. . . . She did everything you

      expected a mother to do. She was loving, she [fed] him, changed his diaper . . .

      .” (Tr. 53). Mother told Case Manager Simpson that she was living with her

      cousin; however, visits took place at an agency because Mother told the case

      Court of Appeals of Indiana | Opinion 49A02-1701-JC-38 | June 29, 2017   Page 4 of 9
      manager that her cousin did not want visitation at her house. Mother

      specifically explained that “she kind of felt like she wasn’t really wanted . . . or

      that the stress of everything and the contact with everyone was a little bit much

      for her cousin.” (Tr. 48). Mother cancelled a scheduled visitation with K.S. in

      July 2016 and, at the time of the CHINS hearing in September and October

      2016, Mother had had no further contact with her son.


[7]   Further testimony at the fact-finding hearing revealed that DCS Case Manager

      Andrea Wilburn (“Case Manager Wilburn”) was assigned to K.S.’s case in

      August 2016. When Case Manager Wilburn reached Mother after two weeks

      of attempting to contact her, Mother told her that everything was going well.

      Case Manager Wilburn further testified that Mother had open referrals for

      home-based case work, supervised visitation, random drug screens, and a drug

      assessment. The case manager recommended that Mother complete a

      parenting assessment because she had not seen K.S. since June 2016. Case

      Manager Wilburn also recommended that Mother complete a mental health

      assessment.


[8]   K.S.’s foster mother testified that K.S. was “developing well, he’s a happy little

      . . . baby meeting his milestones, doing well.” (Tr. 65). Also at the hearing,

      Mother testified that she worked at a clothing store, was living with her cousin,

      and had “[her] own therapist,” who was “outside of a DCS referral.” (Tr. 40).

      Mother told the juvenile court the address of her cousin’s house as well as the

      name of her therapist.



      Court of Appeals of Indiana | Opinion 49A02-1701-JC-38 | June 29, 2017      Page 5 of 9
[9]    Following the hearing, the trial court adjudicated K.S. to be a CHINS.

       Specifically, the juvenile court concluded, in relevant part, that:


               15. [K.S.’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. [Mother] uses marijuana and does not
               have stable housing for herself and her child.


       (App. 72-73). Mother appeals the adjudication.


                                                     Decision
[10]   Mother argues that there is insufficient evidence to support the CHINS

       adjudication. When determining whether there is sufficient evidence to support

       a CHINS determination, we consider only the evidence most favorable to the

       judgment and the reasonable inferences to be drawn therefrom. In re S.D., 2

       N.E.3d 1283, 1287 (Ind. 2014). This Court will not reweigh the evidence or

       reassess the credibility of the witnesses. Id. at 1286. Where, as here, a juvenile

       court’s order contains specific findings of fact and conclusions of law, we

       engage in a two-tiered review. In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App.

       2014). First, we determine whether the evidence supports the findings, and

       then, we determine whether the findings support the judgment. Id. Findings

       are clearly erroneous when there are no facts or inferences to be drawn

       therefrom that support them. Id. A judgment is clearly erroneous if the

       findings do not support the juvenile court’s conclusions or the conclusions do

       not support the resulting judgment. Id.

       Court of Appeals of Indiana | Opinion 49A02-1701-JC-38 | June 29, 2017        Page 6 of 9
[11]   A mother’s constitutionally protected right to raise her child is not without

       limitation. E.P. v. Marion Cty. Office of Family and Children, 653 N.E.2d 1026,

       1031-32 (Ind. Ct. App. 1995). This is because the State has a compelling

       interest in protecting the welfare of the child by intervening in the parent-child

       relationship when parental neglect, abuse, or abandonment is at issue. Id. at

       1032.


[12]   A CHINS proceeding is a civil action. In re N.E., 919 N.E.2d 102, 105 (Ind.

       2010). Therefore, DCS must prove by a preponderance of the evidence that the

       child is a CHINS as defined by the juvenile code. Id. INDIANA CODE § 31-34-

       1-1 provides that a child is a CHINS 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 the 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]   A CHINS designation focuses on the child’s condition rather than the parent’s

       culpability. In re N.E., 919 N.E.2d at 105. The purpose of a CHINS

       adjudication is to provide proper services for the benefit of the child, not to

       punish the parent. Id. at 106.


       Court of Appeals of Indiana | Opinion 49A02-1701-JC-38 | June 29, 2017        Page 7 of 9
[14]   Here, Mother specifically contends that DCS failed to prove by a

       preponderance of the evidence that K.S.’s physical or mental condition was

       seriously impaired or seriously endangered as a result of Mother’s inability,

       refusal, or neglect to supply K.S. with necessary food, clothing, shelter, medical

       care, education, or supervision. We agree.


[15]   As set forth in the relevant CHINS statute, it is DCS’s burden to prove that a

       parent’s actions or inactions have seriously endangered her child and that the

       child’s specific needs have not been met. The trial court adjudicated K.S. to be

       a CHINS after concluding that Mother used marijuana and did not have stable

       housing. As to the first finding, Mother admitted that she had used marijuana

       two months before K.S.’s birth to increase her appetite during pregnancy.

       However, there is no evidence showing how, specifically, Mother’s use of

       marijuana two months prior to giving birth seriously impaired or seriously

       endangered K.S. DCS presented no evidence that he tested positive for

       marijuana, or, even if he did, how a positive marijuana test would have or did

       endanger him. See In the Matter of S.M., 45 N.E.3d 1252, 1255-56 (Ind. Ct. App.

       2015) (concluding that there was no evidence presented that infant H.G. was

       endangered when he was born with marijuana-positive meconium). In fact,

       testimony at the hearing revealed that during his first days of life, K.S. was

       “feeding well” and that there was nothing other to note. (Tr. 25). During

       supervised visits with K.S. shortly after his birth, Mother was engaged and

       loving and “did everything you expected a mother to do.” (Tr. 53). At the




       Court of Appeals of Indiana | Opinion 49A02-1701-JC-38 | June 29, 2017     Page 8 of 9
       time of the fact-finding hearing, K.S.’s foster mother testified that he was

       developing well and meeting his milestones.


[16]   As to the second finding, DCS presented absolutely no evidence that Mother

       did not have stable housing. Rather, our review of the evidence reveals that

       within twenty-four hours of K.S.’s birth, Mother told FCM Johnson that she

       and her son planned to live with her cousin when they were discharged from

       the hospital. Mother’s testimony at the fact-finding hearing confirmed that

       Mother had moved in with her cousin and had lived there for several months.

       Mother’s statement to Case Manager Simpson that she felt that she “wasn’t

       really wanted” at her cousin’s house does not support the juvenile court’s

       finding that Mother did not have stable housing. (Tr. 48). Although the trial

       court may have been concerned that at some point, Mother and K.S. would be

       asked to move out of Mother’s cousin’s house, at the time of the fact-finding

       hearing, this had not happened. See S.M. (explaining that future concerns

       rather than present facts are not enough to support a CHINS adjudication).

       Based upon the totality of this evidence, there is insufficient evidence to support

       the CHINS adjudication.


[17]   Reversed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1701-JC-38 | June 29, 2017     Page 9 of 9
