MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Jun 24 2019, 8:40 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                                    ATTORNEYS FOR APPELLEE
Danielle L. Flora                                         Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana
                                                          Frances Barrow
                                                          Robert J. Henke
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA
In re the Matter of Ar.H. and                             June 24, 2019
Ay.H. (Minor Children),                                   Court of Appeals Case No.
                                                          18A-JC-2904
J.H. (Father),
                                                          Appeal from the Allen Superior
Appellant-Respondent,
                                                          Court
        v.                                                The Honorable Charles F. Pratt,
                                                          Judge
Indiana Department of Child                               The Honorable Sherry A. Hartzler,
Services,                                                 Magistrate

Appellee-Petitioner.                                      Trial Court Cause Nos.
                                                          02D08-1708-JC-589
                                                          02D08-1708-JC-590



Mathias, Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-JC-2904 | June 24, 2019                       Page 1 of 17
[1]   Father appeals the Allen Superior Court’s adjudication of his children, Ar.H.

      and Ay. H., as Children in Need of Services (“CHINS”).

[2]   We affirm.


                                  Facts and Procedural History
[3]   K.H. (“Mother”) is the mother of A.W., Ay. H., and Ar.H. J.H., (“Father”) is

      the biological father of Ay.H., and Ar.H. On July 17, 2017, police executed a

      search warrant on the parents’ home for Jessica Dunton (“Dunton”), a friend of

      Mother and Father who had been staying with the family. Dunton was no

      longer residing in the home; however, law enforcement found the home to be

      cluttered and dirty, had gnats and flies, and smelled strongly of cat urine. Due

      to the conditions of the home, law enforcement referred the matter to the

      Indiana Department of Child Services (“DCS”). DCS Family Case Manager

      (“FCM”) Louise Dietzer (“FCM Dietzer”) assessed the matter and, after some

      discussion, decided that the children would go to their grandparents’ home for a

      few days while the parents followed a detailed plan to clean the home. The

      home was cleaned by July 25, 2017, and the children returned home on that

      day.


[4]   However, FCM Dietzer believed the parents needed the intervention of the

      court to assist the family with ongoing maintenance of the improved home

      conditions and the underlying issue of possible prescription misuse. Tr. Vol. I,

      p. 64. On August 23, 2017, the court found probable cause that the minor

      children were Children in Need of Services (“CHINS”) and authorized DCS to

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-2904 | June 24, 2019   Page 2 of 17
      file a petition. The court allowed the children to continue residing in their

      parents’ home but also entered provisional orders requiring Mother and Father

      to submit to a Diagnostic Assessment and follow recommendations, submit to

      random urinalysis and drug screens as required by DCS, and complete a

      Medical Evaluation by September 23, 2017 and comply with the

      recommendations. The court also appointed counsel for Mother and Father.

      DCS filed an amended CHINS petition on September 12, 2017. On September

      18, 2017, the court held another Initial Hearing in which Mother and Father

      admitted that they were the only parents of A.W., Ay.H., and Ar.H. and lived

      in the same household.1 Father indicated he was unemployed and had

      undergone two months of treatment at an alcohol and drug treatment center in

      Wabash for opioid addiction in 2012.


[5]   Throughout the duration of the CHINS proceedings, both Mother and Father

      submitted to drug screens and engaged with several service providers including:

      Paul Bruns [“Bruns”], a licensed clinical addictions counselor who provided

      services to both parents; Jor-El Gaines (“Gaines”), a mental health therapist

      who provided services for Father; and Leslie Sammons (“Sammons”), a mental

      health therapist who provided services for Mother. The court held fact-finding




      1
        It was established that A.W. has a different biological father. A.W.’s biological father is referenced in the
      record only to establish that he has not regularly visited A.W., was behind on child support, and was unable
      or unwilling to provide housing for A.W. As J.H.is not A.W.’s biological father, and Mother does not
      participate in the appeal, this appeal does not relate to the CHINS finding as to A.W.

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-2904 | June 24, 2019                       Page 3 of 17
      hearings on December 7, 2017, March 21, 2018, May 25, 2018, and May 31,

      2018.

[6]   At the December 7, 2017, fact-finding hearing, Bruns testified that he performed

      a substance abuse assessment for Father on October 6, 2017. Bruns testified that

      Father had a prescription for Percocet, which “is . . . basically Vicodin with . . .

      analgesic added to it.” Tr. Vol. I, p. 13. Bruns also testified that people

      typically take Percocet for pain management. Father had a prescription for

      Xanax at one time, but this prescription had expired. Mother reported to Bruns

      that she was prescribed Percocet 10-325s five times a day from December 2007

      to the present for endometriosis.

[7]   Bruns believed it to be unusual that both Mother and Father had similar

      prescriptions for two completely different diagnoses, especially since both

      diagnoses were often treated with something less than an opiate. He was also

      concerned that both parents seemed to believe that they did not have addictions

      or a dependence because they had prescriptions. Father also had prescriptions

      for Keppra 700 and “philly” 50 mg two times daily for seizures. Father was also

      taking Divalproex at 250 mg three times a day, also for seizures. Father also

      had a Xanax prescription for 2 mg 3 times per day that had been discontinued

      in 2016. Father reported a head injury and neurological issues from playing

      football and a five or six out of ten on the pain scale for chronic pain related to

      a past wrist reconstruction. Bruns also noted that Father made jerking motions

      during the initial assessment. Bruns asked if he was cold, and Father indicated

      he had problems with seizures, but was not having a seizure. Because Bruns

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-2904 | June 24, 2019   Page 4 of 17
      had concerns with drug interactions and the length of time Father had been

      taking opiates for diagnoses such as tendonitis and arthritis, he requested an

      independent medical examination. At the time of the fact-finding hearing, he

      had not received the results of this examination. However, both Mother’s and

      Father’s opioid dependence was unquestionable to Bruns. He recommended

      thirty hours of drug and alcohol treatment consisting of fifteen group sessions

      for each parent.


[8]   FCM Dietzer responded to the initial report. She testified that the home

      conditions as she observed them on July 17, 2017 were concerning to her. She

      observed trash and clothing in addition to dirty dishes on the kitchen counter

      and clothing piled on the laundry room floor eight to ten inches deep. The room

      where Dunton had been staying was so full of items, people could hardly get

      into the room. She also observed that the cat litter box had mold in it, and the

      odor of cat urine was present throughout the house. Cat feces was present in the

      laundry room. It was difficult for her to navigate through the house, and there

      were flies and gnats throughout the home. A couch, toys, and trash items were

      strewn in the side yard. When FCM Dietzer initially assessed the home, Father

      reported to her that many of the items belonged to their friend who had moved

      out and that Ay.H.’s fits from his ADHD had messed up the house.

[9]   FCM Dietzer observed the children were dressed appropriately, and although

      there was only a small amount of food in the house, the children did not appear

      to be malnourished. When she spoke with A.W., she reported that she knew

      what drugs were from school and that her parents only took their prescriptions.

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-2904 | June 24, 2019   Page 5 of 17
       None of the children reported physical abuse, that the parents were absent for

       significant periods of time, or other concerning behaviors to the FCM.

[10]   FCM Dietzer spent a significant amount of time at the home that day and

       worked out a plan with the parents so that the children did not have to be

       removed. They agreed to a detailed safety plan outlining which rooms would

       need to be cleaned by what time and for two separate re-inspections of the

       home while the children stayed with their grandparents. She observed the

       conditions of the home had improved when she visited again two days later.

       FCM Dietzer gave approval for the children to move back in on July 25.


[11]   FCM Dietzer was also concerned with parents’ use of prescription medications.

       She also testified that Father initially told her on July 17 that his doctor, Dr.

       Larry Bledsoe (“Dr. Bledsoe”), had taken him off Xanax because it was

       believed to interfere with the uptake of pain medication in June of 2017.

       However, two days later, Father told her that he was taken off the Xanax

       around December 2016 or January 2017. Mother also indicated to her that the

       same doctor had prescribed her Percocet five times a day for endometriosis

       pain. Mother indicated to the FCM that she had been taken off Xanax in June

       2017. FCM Dietzer administered a drug screen on her initial visit. Outside of

       their prescribed medications, Father tested positive for hydrocodone, and

       Mother tested positive for tramadol. Father appeared shaky. Both parents

       showed her prescription bottles for the Percocet. They also indicated that they

       both had medication in other containers but did not show her those other

       containers.

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2904 | June 24, 2019   Page 6 of 17
[12]   FCM Dietzer asked both Mother and Father whether they felt that they abused

       their prescriptions. Father denied that he abused his prescriptions. He also

       indicated to her that he had been upset by her arrival, so he took some Xanax

       that was left over from his expired prescription.


[13]   FCM Dietzer brought the matter as a CHINS case because she believed she

       needed the intervention of the court to assist the family with the home

       conditions and because of what she believed was likely an underlying issue of

       prescription misuse by both parents. The matter was transferred to permanency

       worker Joshua Meyer in August 2017, and she has not had contact with the

       family since that time.

[14]   Bridget Lemberg, Lab Director and Toxicologist at Forensic Fluids, testified

       that Percocet is oxycodone. She testified that someone who takes Percocet

       would not test positive for hydrocodone, commonly known as Vicodin or

       Lortab. In her experience, someone would not test positive for tramadol or

       Xanax for taking Percocet. She also testified that Forensic Fluids uses cut-off

       levels for therapeutic dosing from the federal registry. She testified that opiates

       are depressants and can put someone to sleep; however, individuals can build

       up a tolerance, and because of this, individuals can exhibit side effects

       differently.

[15]   Gaines, a mental health and home-based therapist for Dockside Services,

       testified regarding the therapy he provided to Father in order to help him reduce

       his anxiety. He observed Father to be incredibly “antsy” and had a history of


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2904 | June 24, 2019   Page 7 of 17
       anxiety attacks. Tr. Vol. I, p. 144. He reported that in the past couple of

       months, Father had recognized the substance abuse issues in his past. Father

       felt using the opiates was a “horrible situation that’s a hassle to him,” and he

       wants to get off the opiates, get back to becoming more independent, and get a

       job. Id. Gaines testified that Father was consistent with therapy and has made

       significant progress. He agreed that the existence of the DCS matter was

       causing Father some anxiety. Although he was not a substance abuse

       counselor, the topic of substance use came up a lot during therapy. He

       recommended substance abuse therapy, but to his knowledge, Father had not

       engaged in any.


[16]   Sammons, a mental health therapist for Dockside, testified regarding the

       individual therapy she had engaged in with Mother. Mother has panic attacks

       at work and believes that it impacts her ability to work. She believed Mother

       was becoming more receptive to therapy. She recommended a continuation of

       therapy because she believed Mother could use “more stability under her belt

       before um trying to do it all on her own.” Tr. Vol I, p. 165. Sammons believed

       Mother needs the most work on challenging negative thoughts as they arise.

       She had been inside the home for therapy sessions, and she believed the home

       to be kept to DCS standards. Sammons also recommended substance abuse

       counseling for Mother and said that Mother had only recently asked how to get

       started with substance abuse counseling.


[17]   Joshua Meyer (“Meyer”), the DCS permanency worker assigned to the matter

       since August 2017, also testified. He has observed that the home typically had

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2904 | June 24, 2019   Page 8 of 17
       trash or laundry strewn but remained at minimal standards or above for the

       duration of the time he was assigned to the matter. He understood from Mother

       that she had been on Xanax, but that her doctor took her off Xanax, then put

       her back on it. Meyer felt it was difficult to follow what she was actually

       prescribed because it kept changing, but Mother never asked to see her

       prescriptions. He also felt it was tough to follow what Father was prescribed

       because “[Mother and Father] tested positive for so many different things

       throughout [the CHINS proceedings].” Tr. Vol. I, p. 189. He reported that

       neither parent had started substance abuse counseling for which he made a

       referral on October 24, 2017. Meyer had a conversation with the parents at a

       Child and Family Team Meeting in February of 2018 about contacting

       Dockside for a referral for group counseling. He informed them that he had

       already placed a referral, those referrals do not expire, and that Dockside would

       need to contact him for a new referral. He has not heard anything from

       Dockside or the parents regarding a referral for substance abuse therapy since

       that conversation.


[18]   He was aware that the prescribing doctor, Dr. Bledsoe, had submitted a report

       showing that he had no concerns regarding parents’ intake of medications.

       However, Meyer still had concerns because Mother was drinking alcohol and

       taking medications for which she did not have a prescription, but he had never

       personally spoken with Dr. Bledsoe. He agreed that the children had plenty of

       food, appropriate clothing, and shelter. The school had not reported any

       behavioral issues. He also did not see any signs of physical abuse or educational


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2904 | June 24, 2019   Page 9 of 17
       neglect. Meyer believed that the children were “[de]sensitized to a lot.” Tr. Vol.

       I, p. 236.

[19]   Father testified that he requested individual counseling instead of the group

       counseling for substance abuse because of his anxiety. He testified that he has a

       prescription for Xanax and had been prescribed Suboxone for a period of time

       “to try to completely get off of the opiates[.]” Tr. Vol. II, p. 4. He said he

       “ended up having a very rare and bad reaction to it so I had to get off of it.” Id.

       He agreed that, at the time DCS became involved, the conditions of the

       residence were unacceptable. He also testified that he has Xanax for his anxiety

       and pain medication because he has had several reconstructive surgeries. He

       also testified that he had a benign lump on the left side of his skull that is

       pushing against his brain, for which he is prescribed anti-seizure medication. He

       testified this seizure disorder interferes with his ability to maintain employment;

       however, he recently obtained employment building fences. He informed the

       case worker about this job and showed him his pay stub. This is seasonal work,

       and he is unsure if he would be able to continue working for this company

       because there is not much to do besides regular maintenance work during the

       winter, and Father is unable to drive. Although his physical limitations impair

       his ability to work, he does not believe these impair his ability to care for his

       children. He agreed that the services provided helped him address issues,

       particularly with the therapy. However, he does not believe he needs any

       counseling for substance abuse. He later said on rebuttal examination that he

       spoke with Gaines multiple times about group therapy and that he had been


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2904 | June 24, 2019   Page 10 of 17
       told he needed a new referral. He believed his attorney communicated that to

       the FCM.

[20]   Mother testified that she has maintained clean, safe, and appropriate housing at

       all times, that she cooperated with the GAL and all FCMs. She also testified

       that she has refrained from the use of alcohol, illegal drugs, and substance

       abuse. She has been taking her medications as prescribed. She completed all of

       the homebased casework and ensured the children took all their medications as

       prescribed. She had recently had surgery for her endometriosis and was on bed

       rest. She was also prescribed 5 mg of Percocet as a result of the surgery. She

       was already on Percocet so she does not remember if she informed the FCM of

       this new prescription. She said her internal medicine doctor, Dr. Bledsoe,

       diagnosed her with anxiety. She also said that she was willing to try group

       therapy, but a referral needs to be made for it.

[21]   The court issued its Findings and Conclusions adjudicating the children CHINS

       pursuant to Indiana Code section 31-34-1-1 in a sixty-five-paragraph order on

       September 10, 2018. In paragraph 46 of this order, the court noted that it

       observed a flat affect from both parents. The court further noted that it observed

       both Mother and Father “nodding off” during the proceedings. Appellant’s

       App. p. 20. Father now appeals.


                                      Discussion and Decision
[22]   In order to adjudicate a child a CHINS, DCS must prove by a preponderance of

       the evidence that

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2904 | June 24, 2019   Page 11 of 17
               (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.


       Ind. Code § 31-34-1-1; In re S.A., 15 N.E.3d 602, 608 (Ind. Ct. App. 2014), aff’d

       on reh’g, 27 N.E.3d 287 (Ind. Ct. App. 2015), trans. denied.


[23]   A CHINS adjudication focuses on the condition of a child, and whether that

       child needs services. In re R.S., 987 N.E.2d 155, 159 (Ind. Ct. App. 2013). A

       CHINS adjudication may not be based solely on conditions that no longer exist.

       Id. The trial court should also consider the parents’ situation at the time the case

       is heard by the court. Id. A parent’s rights to his or her children are not

       absolute. In re S.A., 15 N.E. 3d at 611. Acting under its parens patriae power,

       the State may interfere with parental autonomy when “necessary to protect the

       health and safety of the children.” In re V.H., 967 N.E.2d 1066, 1072 (Ind. Ct.

       App. 2012). A court need not wait until a tragedy occurs before entering a

       CHINS finding. In re R.S., 987 at 158.




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2904 | June 24, 2019   Page 12 of 17
[24]   DCS has the burden of proving by a preponderance of the evidence that a child

       is a CHINS. Ind. Code § 31-34-12-3. In reviewing a CHINS determination, we

       do not reweigh evidence or assess witness credibility for ourselves. In re S.A., 15

       N.E. 3d at 607. We consider only the evidence in favor of the juvenile court’s

       judgment, along with any reasonable inferences arising therefrom. Id. We

       reverse only upon a showing that the decision of the trial court was clearly

       erroneous. In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012). “This deference

       recognizes a trial court’s unique ability to see the witnesses, observe their

       demeanor, and scrutinize their testimony, as opposed to this court’s only being

       able to review a cold transcript of the record.” Matter of D.P., 72 N.E.3d 976,

       980 (Ind. Ct. App. 2017).

[25]   “Factual findings are clearly erroneous where there are no facts in the record to

       support them either directly or by inference.” Yanoff v. Muncy, 688 N.E.2d 1259,

       1262 (Ind. 1997). A judgment is clearly erroneous if it relies on an incorrect

       legal standard. Id. We accord substantial deference to the trial court's findings

       of fact but not to its conclusions of law. In re S.A., 15 N.E.3d at 607. Any issues

       not covered by the trial court’s findings are reviewed under the general

       judgment standard, “under which a judgment will be affirmed if it can be

       sustained on any legal theory supported by the evidence.” In re S.D., 2 N.E.3d

       1283, 1287 (Ind. 2014). Father has challenged the sufficiency of the evidence

       supporting the CHINS finding. As such, we engage in a two-tiered standard of

       review. In re A.H., 913 N.E.2d 303, 305 (Ind. Ct. App. 2009); Yanoff, 688




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2904 | June 24, 2019   Page 13 of 17
       N.E.2d at 1262. We first determine whether the evidence supports the findings,

       then whether the findings support the judgment. In re A.H., 913 N.E.2d at 305.


[26]   Here, the trial court entered detailed findings and conclusions in an eleven-

       page, sixty-seven paragraph order. Appellant’s App. pp. 14–24. In his challenge

       to the adjudication, Father specifically challenges the findings that, without the

       continued presence of service providers, the home was likely to deteriorate to its

       previous condition. He also argues that the trial court appeared to place “great

       weight on the testimony of Father’s therapist, [Gaines], and that of the person

       who performed the substance abuse evaluation, Paul Bruns” although these

       individuals were not provided with any information from the prescribing

       physician. Appellant’s Br. p. 14. He also argues that, “[i]f the children were

       negatively impacted by Father’s use of non-prescribed prescription drugs on two

       occasions, nine and ten months prior to the factfinding, DCS failed to prove

       they were still negatively affected at the factfinding.” Appellant’s Br. at 16.


[27]   We first turn to Father’s argument regarding the weight given to service

       provider testimony given they were not provided a report from the prescribing

       physician. The trial court made a finding that the entirety of the report

       containing the opinion of the primary care physician was not admitted for the

       court’s examination. The trial court also noted the fact that the physician did

       not testify impacted the weight the court gave to this opinion. The fact that

       Bruns and Gaines were not provided with information from the prescribing

       physician was presented at the hearing and therefore available to the trial court

       when it entered its findings and conclusions. As such, Father’s argument

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2904 | June 24, 2019   Page 14 of 17
       regarding the weight the trial court placed on the testimony of Bruns and

       Gaines essentially asks us to the re-weigh the evidence, which we cannot and

       will not do.


[28]   Father also argues that since home-based services had been discontinued at the

       request of the service provider before the conclusion of the factfinding hearing,

       the trial court erred in finding that the home was likely to deteriorate to its

       previous condition “without the continued presence of service providers.”

       Appellant’s Br. at 14 (citing Appellant’s App. p. 23). This argument ignores the

       court’s conclusion that “the condition of the home is a symptom of the

       underlying mental health issue and drug addiction which has yet to be

       addressed and thus the home is only at minimal standards but for the

       intervention of the Court.” Appellant’s App. p. 23. The trial court entered

       multiple findings regarding the parents’ underlying mental health and drug

       addiction issues. The trial court also found that the “these proceedings involve

       issues more complex than the mere presence of a prescribed medication in the

       system of both Mother and Father.” Appellant’s App. p. 20. Evidence of both

       Mother’s and Father’s significant challenges with anxiety and substance abuse

       is abundant throughout the record. Moreover, Father was prescribed Suboxone

       and admitted that he had substance abuse issues. Both Mother and Father were

       initially resistant to the substance abuse therapy but had recently asked for these

       services. Although a dispute, or minimally, confusion, exists as to the reason

       parents had not yet begun the substance abuse therapy at the time of the fact-

       finding hearing, the parents had not engaged in this therapy that all parties had


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2904 | June 24, 2019   Page 15 of 17
       sought or recommended for Mother and Father. Father’s argument that the

       cancellation of the home-based services means that the parents were able to

       maintain a safe home ignores the complexity of the issues and the trial court’s

       conclusions that the parents’ unresolved mental health and substance abuse

       issues were the underlying reasons parents had difficulty maintaining a safe and

       clean home.

[29]   Father argues that by the time of the fact-finding hearing, all of the children’s

       needs were being met by the parents. However, the fact that the needs of the

       children were met does not mean that the coercive intervention of the court was

       not needed to meet those needs. Moreover, it ignores the conclusions of the trial

       court. Here, the trial court made conclusions based on significant evidence that

       parents had not addressed substance abuse issues and that although the home

       had remained clean, the children were still impacted by their parents’ continued

       refusal to participate in services related to the substance abuse. The trial court

       also concluded that the condition of the home was a symptom of the underlying

       mental health issues and drug addiction, and that without the continued

       presence of service providers, the home is likely to deteriorate to its previous

       condition. These conclusions are all supported by substantial evidence and do

       not constitute clear error.


                                                 Conclusion
[30]   Because the evidence supports the conclusions, and because to find otherwise

       would be to reweigh the evidence, which we cannot do, we affirm the trial

       court’s adjudication of Ar.H. and Ay. H. as CHINS.
       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2904 | June 24, 2019   Page 16 of 17
[31]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-2904 | June 24, 2019   Page 17 of 17
