                                                                           FILED
                                                                      Jul 28 2016, 8:16 am

                                                                           CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANTS                                     ATTORNEYS FOR APPELLEE
Attorneys for Mother (Je.K):                                 Gregory F. Zoeller
Eric M. Oliver                                               Attorney General of Indiana
Fred L. Cline
Oliver & Cline, LLP                                          Robert J. Henke
Danville, Indiana                                            Deputy Attorney General

Attorney for Father (Ja.K.):                                 Abigail R. Recker
Paula M. Sauer                                               Deputy Attorney General
Danville, Indiana                                            Indianapolis, Indiana


                                              IN THE
     COURT OF APPEALS OF INDIANA

In the Matter of:                                            July 28, 2016
S.K., R.K., M.K., and A.K.,                                  Court of Appeals Case No.
                                                             32A01-1512-JC-2085
                                                             Appeal from the Hendricks
Ja.K. (Father) and Je.K.                                     Superior Court
(Mother),                                                    The Honorable Karen M. Love,
Appellants-Respondents,                                      Judge
                                                             Trial Court Cause No.
         v.                                                  32D03-1506-JC-52
                                                             32D03-1506-JC-53
Indiana Department of Child                                  32D03-1506-JC-54
                                                             32D03-1506-JC-55
Services,
Appellee-Petitioner.




Vaidik, Chief Judge.



Court of Appeals of Indiana | Opinion 32A01-1512-JC-2085 | July 28, 2016                      Page 1 of 11
                                             Case Summary
[1]   Ja.K. (Father) and Je.K. (Mother) appeal the juvenile court’s decision that their

      four children are children in need of services (CHINS). The sole issue for our

      review is whether the evidence supports the juvenile court’s judgment that the

      children were CHINS pursuant to Indiana Code section 31-34-1-1. Concluding

      that the evidence does not show the children were endangered by the actions or

      inactions of Mother or Father, we reverse the CHINS adjudication.



                              Facts and Procedural History
[2]   Mother and Father were married in 2002 and they had four daughters: A.K.

      (born January 6, 2003), R.K. (born December 8, 2004), M.K. (born December

      5, 2005), and S.K. (born July 8, 2007). Mother and Father filed for dissolution

      of their marriage in Morgan County in May 2011. Father was awarded

      temporary custody of the children at that time. However, the dissolution action

      was dismissed for inactivity and a final custody determination was never made.


[3]   The children continued living with Father. For three years, they lived in

      Mooresville and attended Mooresville schools. Father and the children next

      lived with Father’s aunt and uncle for nine months and attended Wayne

      Township schools. Then, at the beginning of 2015, Father’s employment and

      housing became unstable. He and the children lived with a friend for a month,

      then they moved into a hotel with Father’s father for about a month, and then

      Father’s father lost his job and was unable to pay any portion of the living


      Court of Appeals of Indiana | Opinion 32A01-1512-JC-2085 | July 28, 2016   Page 2 of 11
      expenses. Father did not have enough money to pay the hotel bill. He knew

      that he and the children were about to become homeless, so he took the

      children to live with Mother at the end of May 2015. During this period of

      instability, the children changed schools twice, attending schools in Monrovia

      and Plainfield. However, the children were in school at all times and

      maintained above-average grades.


[4]   On June 10, the Indiana Department of Child Services (DCS) received a report

      that, among other things, Mother’s boyfriend was using illegal drugs in the

      presence of the children. On June 15, Family Case Manager (FCM) Sarah Ash

      went to Mother’s home to investigate. FCM Ash interviewed the four children

      and, according to her report, the three older children told her that they had

      never seen Mother or Mother’s boyfriend take any kind of medicine or pills.

      The youngest child indicated that Mother’s boyfriend “takes a lot of pills but

      they are for his back.” Father’s App. p. 15. FCM Ash said that she “didn’t

      have any concerns during that initial visit in regards to the allegations in the

      report.” Tr. p. 33-34. She took a fluid sample from Mother and Mother’s

      boyfriend for drug screening, and she left the children with Mother for another

      four days. On June 19, Mother’s drug screen came back positive for

      methamphetamine and amphetamine and she admitted taking two Adderall on

      the morning she gave the fluid sample. Based on the positive drug screen, FCM

      Ash removed the children, placed them with Mother’s aunt (Aunt) and uncle

      (Uncle), and administered a second drug screen. On the second screen, Mother

      tested positive for amphetamine, but the level had dropped from 241.1 ng/mL


      Court of Appeals of Indiana | Opinion 32A01-1512-JC-2085 | July 28, 2016   Page 3 of 11
      to 21.8 ng/mL. DCS continued screening Mother weekly, and all subsequent

      tests were negative.


[5]   FCM Ash made her first contact with Father on the day of the detention

      hearing, June 22. Father told her that he was still looking for an apartment and

      that, at that time, the best place for the girls was with Aunt and Uncle. Ten

      days later, after the juvenile court placed the children in the care of DCS,

      Father moved into a home with his girlfriend, their five-month-old son, and her

      son from a previous relationship. According to FCM Ash, two weeks after

      moving into his new home, Father told her that he would take the girls if

      Mother could not.


[6]   DCS filed a CHINS petition, and the juvenile court held the fact-finding

      hearing on August 12 and 26. At that hearing, Father testified that he wanted

      the girls and that it was in their best interests to live with him. However, he

      added that he needed financial help. He made $11.25 an hour working in a

      warehouse, and, over the four years that the girls lived almost exclusively with

      him, he received a total of $20 in child support.


[7]   Uncle also testified at the fact-finding hearing. He described the girls’ moods

      after visits and phone calls with their parents—“[t]hey just like go into a

      freeze[,]” refusing to talk to Aunt or Uncle and withdrawing. Tr. p. 64. Uncle

      also testified that the girls disliked Father’s girlfriend and were upset when her

      name came up in conversation. Uncle had some difficulty understanding the

      children’s behavior because he observed all of the visits and he did not hear


      Court of Appeals of Indiana | Opinion 32A01-1512-JC-2085 | July 28, 2016   Page 4 of 11
      anything that he thought would lead to it. When Uncle discussed the children’s

      behavior with Mother, she recommended that the girls see a counselor.


[8]   The juvenile court issued an extensive list of findings, which we summarize.

      With respect to Father, the juvenile court found that “the girls have lived

      primarily with Father and only spent a few weeks with Mother[,]” Father’s

      App. p. 51; Father’s housing was unstable for several months in early 2015;

      Father said that the best place for the children was with Aunt and Uncle; Father

      currently lives with his girlfriend, whom the children dislike; Father is

      concerned about his ability to financially support the children. With respect to

      Mother, the court found that Mother’s housing was unstable at the time of the

      fact-finding hearing and that Mother tested positive for methamphetamine once

      and amphetamine twice over a four-day period, and she admitted to using

      Adderall. And, with respect to the children, the juvenile court found that they

      changed schools multiple times; that they were upset for a day or two after

      Mother’s visits; that one of the children was very upset the week before the fact-

      finding hearing and “was hateful to her sisters” during that week, id. at 49; and

      that the children do not get along well with Father’s girlfriend.


[9]   The juvenile court concluded1 that the children’s emotional condition was

      “seriously endangered as a result of the inability, refusal or neglect of their




      1
       The juvenile court labeled everything a finding of fact. However, we are not bound by the trial court’s
      characterization of its results as “findings of fact” or “conclusions of law.” Fobar v. Vonderahe, 771 N.E.2d
      57, 59 (Ind. 2002). Rather, we look past these labels to the substance of the judgment and will review a legal
      conclusion as such even if the judgment wrongly classifies it as a finding of fact. Id.


      Court of Appeals of Indiana | Opinion 32A01-1512-JC-2085 | July 28, 2016                            Page 5 of 11
       parents to provide shelter, education and supervision.” Id. at 52. Specifically,

       the children experienced stress because of the “constant shuffling” between

       parents, Father’s housing, Mother’s drug abuse, and Father’s recent decision

       that he doesn’t want the girls to live with him. Id. “If the girls do not receive

       counseling, their emotional condition is seriously endangered.” Id. And “[t]he

       parents are unlikely to provide or accept counseling for the girls without the

       Court’s coercive intervention.” Id.

[10]   The juvenile court adjudicated all four children CHINS, and Mother and

       Father separately appeal.



                                   Discussion and Decision
[11]   Mother and Father challenge the sufficiency of evidence supporting the trial

       court’s order adjudicating the children as CHINS. At the outset, we note that

       Mother and Father have filed separate briefs. However, because a CHINS

       determination is based on the status of the children, we need not conduct a

       separate analysis concerning each parent. In re N.E., 919 N.E.2d 102, 106 (Ind.

       2010). Unlike termination proceedings, a CHINS adjudication need not

       establish culpability on the part of either or both parents. Id. at 105. Instead, a

       CHINS adjudication focuses on the condition of the children. Id.


[12]   In reviewing a trial court’s determination that a child is in need of services, we

       neither reweigh the evidence nor judge the credibility of the witnesses. In re

       S.D., 2 N.E.3d 1283, 1286 (Ind. 2014). Instead, we consider only the evidence


       Court of Appeals of Indiana | Opinion 32A01-1512-JC-2085 | July 28, 2016   Page 6 of 11
       that supports the trial court’s decision and the reasonable inferences drawn

       therefrom. Id. at 1287. When the trial court enters findings and conclusions,

       we consider whether the evidence supports the factual findings and whether the

       findings support the judgment. In re A.C., 905 N.E.2d 456, 461 (Ind. Ct. App.

       2009). Findings are clearly erroneous when the record contains no facts to

       support them either directly or by inference, and a judgment is clearly erroneous

       if it relies on an incorrect legal standard. Id.


[13]   In this case, the CHINS petition was filed pursuant to Indiana Code section 31-

       34-1-1, which provides:


                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

                (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.


       A CHINS adjudication under Indiana Code section 31-34-1-1 “requires three

       basic elements: that the parent’s actions or inactions have seriously endangered

       the child, that the child’s needs are unmet, and (perhaps most critically) that




       Court of Appeals of Indiana | Opinion 32A01-1512-JC-2085 | July 28, 2016       Page 7 of 11
       those needs are unlikely to be met without State coercion.” In re S.D., 2 N.E.3d

       at 1287.


[14]   Here the juvenile court concluded that, by failing to provide shelter, education,

       and supervision, Mother and Father seriously endangered the children’s

       emotional condition. The court also concluded that the children needed

       counseling and that Mother and Father were unwilling to accept or provide the

       needed counseling for the children.


[15]   The record and findings do not support a conclusion that the children lacked

       shelter, education, or supervision. Beginning with shelter, the record reflects

       that the children and Father had stable housing for nearly four years. It was not

       until early 2015 that Father went through a period of extreme housing

       instability, and he brought the children to Mother before he became homeless.

       Thus, there is no evidence that the children went without shelter. Moreover,

       Father found stable housing without State intervention and before the fact-

       finding hearing. The fact that both parents have struggled with housing, even

       endured periods of homelessness, does not support the juvenile court’s

       conclusion that the children were endangered, particularly when the children

       have never been without shelter. See In re S.M., 45 N.E.3d 1252, 1256 (Ind. Ct.

       App. 2015).


[16]   There is, similarly, no evidence that the children have been deprived of an

       education, despite the fact that they have changed schools multiple times.

       There is no evidence that the children have missed school, or that there was a


       Court of Appeals of Indiana | Opinion 32A01-1512-JC-2085 | July 28, 2016   Page 8 of 11
       time when they were not enrolled in school. On the contrary, the record

       reflects that the children have not only consistently attended school, but also

       maintained above-average grades.


[17]   As to the lack of supervision, the juvenile court found that Mother and her

       boyfriend tested positive for methamphetamine and amphetamine on a day

       when they were the sole caregivers for the children. DCS argues that this is

       sufficient to establish endangerment according to the Indiana Supreme Court

       decision in White v. State, 547 N.E.2d 831 (Ind. 1989). There, a ten-year-old

       observed her parents’ frequent use of intravenous drugs and marijuana, and the

       parents gave the ten-year-old marijuana to smoke on three occasions.

       However, this case is distinguishable from White. Mother tested positive for

       methamphetamine once and amphetamine twice, four days apart and at a

       substantially diminished level, and all of her subsequent weekly drug screens

       were negative. The children reported to FCM Ash that they had not seen

       Mother take any medicine or pills—so she did not expose them to her drug use.

       Most telling, FCM Ash left the children with Mother on the day when Mother

       tested positive, leading to the inference that Mother was not impaired at the

       time. This Court has previously held that the “finding of an isolated use of

       methamphetamine, without more, does not support the conclusion of law that

       [the child] was a CHINS.” In re L.P., 6 N.E.3d 1019, 1021 (Ind. Ct. App.

       2014). And, in this case, the findings indicate nothing more than an isolated

       use.




       Court of Appeals of Indiana | Opinion 32A01-1512-JC-2085 | July 28, 2016   Page 9 of 11
[18]   Next, the juvenile court’s findings do not support its conclusion that the

       children’s emotional health is seriously endangered. None of the children’s

       counselors testified about the nature or extent of any emotional or mental-

       health issues the children might have, leaving the juvenile court to rely upon the

       observations of the children’s parents and caretakers. The record and findings

       reflect that the children do not get along with Father’s girlfriend, they

       sometimes quarrel and say hateful things to each other, they are upset and

       withdraw after visits with their Mother, and they are anxious about having to

       move or change schools. These facts are not sufficient to support the conclusion

       that the children are seriously endangered.


[19]   The juvenile court also concluded that the children needed counseling and that

       the parents would not provide or accept the counseling without the coercive

       intervention of the court. The only evidence in the record with respect to

       Mother’s or Father’s willingness to accept counseling for the children is Uncle’s

       testimony that Mother recommended the children receive counseling when he

       discussed their behavior with her. The conclusion that coercive intervention is

       required to obtain counseling for the children is, therefore, unsupported.


[20]   To be a CHINS, a child must be seriously impaired or endangered “as a result of

       the inability, refusal, or neglect of the child’s parent” to provide necessary care.

       Ind. Code § 31-34-1-1 (emphasis added). Children cannot become CHINS by

       the mere happenstance of a family’s economic misfortune; the statute requires

       an action or failure to act by the parent that leads to serious endangerment of

       the children as a result of the lack of necessary care. In re S.M., 45 N.E.3d at

       Court of Appeals of Indiana | Opinion 32A01-1512-JC-2085 | July 28, 2016    Page 10 of 11
       1256 (“The mere fact of an unemployed parent does not make a CHINS. The

       mere fact of a family on food stamps does not make a CHINS. Even the mere

       fact of a family living in a shelter while seeking stable housing does not make a

       CHINS.”). In this case, the children were not endangered by the acts or

       omissions of the parents. In fact, the parents took deliberate actions to avoid

       placing the children in the endangering condition of homelessness. We

       therefore conclude that the juvenile court’s determination that the children are

       CHINS was clearly erroneous.


[21]   Reversed.

       Barnes, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 32A01-1512-JC-2085 | July 28, 2016   Page 11 of 11
