MEMORANDUM DECISION
                                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                                          Mar 31 2016, 8:23 am
this Memorandum Decision shall not be
                                                                                       CLERK
regarded as precedent or cited before any                                        Indiana Supreme Court
                                                                                    Court of Appeals
court except for the purpose of establishing                                          and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Danielle L. Gregory                                      Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Robert J. Henke
                                                         Abigail R. Recker
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of:                                        March 31, 2016
D.S. and N.H. (Minor Children)                           Court of Appeals Case No.
                                                         49A05-1507-JC-950
     Children in Need of Services
                                                         Appeal from the Marion Superior
        and                                              Court
A.S. (Mother),
                                                         The Honorable Marilyn Moores,
Appellant-Respondent,                                    Judge

        v.                                               The Honorable Jennifer Hubartt,
                                                         Magistrate

The Indiana Department of                                Trial Court Cause Nos.
                                                         49D09-1503-JC-948
Child Services,                                          49D09-1503-JC-949
Appellee-Petitioner.




Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016            Page 1 of 14
                               Case Summary and Issues
[1]   A.S. (“Mother”) appeals the juvenile court’s adjudication of her two children,

      D.X.S. and N.H. (“Children”), as children in need of services (“CHINS”).

      Mother raises three issues on appeal, which we consolidate and restate as (1)

      whether the juvenile court’s CHINS determination is clearly erroneous, and (2)

      whether the juvenile court’s Parental Participation Order is clearly erroneous.

      Concluding neither the CHINS determination nor the Parental Participation

      Order is clearly erroneous, we affirm.



                            Facts and Procedural History
[2]   Born in September 2011, D.X.S. is the child of D.S. and Mother. Following

      D.X.S.’s birth, Mother was awarded full custody of D.X.S. and D.S. was

      awarded parenting time. Mother and D.X.S. lived with D.X.S.’s maternal

      grandmother, T.S., and maternal great-grandmother. In August 2013, Mother

      was convicted of possession of a controlled substance and public intoxication,

      and Mother was sentenced to probation. Four months later, Mother was

      convicted of possession of a controlled substance and operating a vehicle while

      intoxicated; again, Mother was sentenced to probation. In August 2014,

      Mother gave birth to N.H. Despite not being N.H.’s biological father, C.H.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016   Page 2 of 14
      signed N.H.’s birth certificate.1 Mother and the Children continued to live with

      T.S.


[3]   In March 2015, the Indiana Department of Child Services (“DCS”) received a

      report alleging Mother abused drugs and often left the Children unattended.

      Thereafter, Deanna Watson, a Family Case Manager with DCS, began

      investigating the report and interviewed T.S. and Mother. T.S. stated Mother

      worked late hours as a waitress and exotic dancer. When Mother went to

      work, Mother relied on T.S. and the Children’s maternal great-grandparents to

      babysit the Children. At times, Mother would leave the house for several days

      without returning, or contacting T.S., to check on the Children’s well-being.

      When Mother did return home, Mother often slept and did not spend much

      time with the Children. T.S. suspected Mother had a problem with drugs and

      alcohol. Mother admitted to using cocaine three times per week and leaving

      the Children under T.S.’ supervision. Mother further stated the Children

      caused her significant stress and she needed assistance and services. Mother

      then submitted to a drug screen and tested positive for cocaine and opiates.

      Concerned for the Children’s well-being, DCS immediately removed the

      Children from Mother’s custody and placed the Children with T.S.


[4]   On March 20, 2015, DCS filed a petition alleging the Children were CHINS.

      On the same day, the juvenile court held a joint detention and initial hearing.




      1
          Neither D.S. nor C.H. appeal the juvenile court’s order adjudicating the Children as CHINS.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016              Page 3 of 14
      At the hearing, the juvenile court continued the Children’s removal from

      Mother’s custody and placement with T.S., appointed a guardian ad litem, and

      ordered Mother to vacate T.S.’s home until Mother could provide five negative

      drug screens.2 Per DCS’ recommendation, Mother began meeting with a home-

      based case manager at the beginning of April 2015. On April 20, 2015, the

      juvenile court held a pre-trial hearing. Mother did not appear because she was

      in jail for a probation violation. On May 4, Mother appeared for a pre-trial

      hearing, and the juvenile court authorized Mother to reside in T.S.’s home with

      the Children, contingent upon Mother continuing to provide negative drug

      screens.


[5]   At the fact-finding hearing on June 22, 2015, Mother’s probation officer,

      Michael Feldman, testified the terms of Mother’s probation required Mother to

      participate in drug testing and a substance abuse assessment. Mother

      completed the substance abuse assessment and was not ordered to seek

      treatment. After Mother admitted to using cocaine, however, Feldman ordered

      Mother to seek substance abuse treatment before her probationary term ended.

      To Feldman’s knowledge, Mother was still on probation at the time of the fact-

      finding hearing and had not yet sought treatment. Feldman also testified he

      had recently filed a petition alleging Mother violated the terms of her probation,

      but the record does not describe the allegation(s) with any specificity. Also at



      2
        On March 30, 2015, the juvenile court granted DCS’ motion to amend its petition to include “A.J.” as the
      alleged father to N.H. A.J. never appeared at any of the pre-trial hearings or the fact-finding hearing, and the
      juvenile court issued a default order as to A.J.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016               Page 4 of 14
      the time of the fact-finding hearing, the trial court in Mother’s criminal case had

      not made a final ruling on Mother’s alleged probation violation. Despite

      Mother having until the end of her probationary term to seek substance abuse

      treatment, Feldman opined he was concerned Mother would not complete the

      required substance abuse treatment.


[6]   Mother’s home-based case manager, Candace Balzano, testified she and

      Mother attempted to meet weekly, but Mother did not consistently show up to

      her appointments. Balzano opined Mother should receive additional services to

      assist in parenting the Children. T.S. testified Mother did not pay for the

      Children’s clothing or food. In addition, T.S. stated she kicked Mother out of

      the home because Mother came home intoxicated twice. T.S. also testified

      Mother’s absence from the Children’s lives had an adverse effect on the

      Children. Specifically, T.S. observed D.X.S. missed Mother a great deal and

      often asked where Mother was.


[7]   On July 1, 2015, the juvenile court issued an order adjudicating the Children as

      CHINS. The juvenile court’s order included the following relevant findings:

              7. On or about March 18, 2015, [Mother] admitted to DCS
              FCM Deanna Watson that she was currently using cocaine
              approximately three times per week and had used approximately
              three days prior to that date.

              8. On or about March 18, 2015, [Mother] admitted to FCM
              Watson that she was stressed out with the children and needed
              assistance and services.

              9. On or about March 18, 2015, [Mother] admitted to FCM
      Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016   Page 5 of 14
        Watson that she had just left an abusive relationship with [C.H.]

        10. On or about March 18, 2015[,] and at the present time,
        [Mother] is on adult probation for drug and alcohol related
        convictions.

        11. [Mother] has been Court ordered through her criminal
        convictions to participate in a Substance Abuse Evaluation,
        Substance Abuse Treatment, and Random Drug Screens.

        12. Despite being Court ordered to complete the substance abuse
        services and drug screens, [Mother] has not yet completed the
        services.

        13. [Mother]’s Probation Officer Michael Feldman has filed a
        Violation of Probation with the criminal court concerning
        [Mother]’s lack of progress in services.
        ***
        15. [Mother] has acknowledged the need for services to Ms.
        Balzano, stating to Ms. Balzano that she is interested in obtaining
        a GED, changing her employment from a waitress and exotic
        dancer, securing housing, saving money, and achieving sobriety.

        16. [Mother] has been inconsistent in her work with Ms.
        Balzano and on the achievement of her treatment goals.

        17. [Mother] has not successfully achieved her treatment goals
        with Ms. Balzano as of the date of this fact finding hearing.

        18. The children have been placed in relative care with maternal
        grandmother, [T.S.] since approximately [M]arch 20, 2015.

        19. [Mother] has attempted to see the children in the home of
        [T.S.] when [T.S.] perceived her daughter to be under the
        influence of drugs and/or alcohol.

        20. [Mother] has told [T.S.] that she wants to get sober, but her

Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016   Page 6 of 14
              interest in sobriety is not consistent, therefore she has not been
              successful.
              ***
              24. [D.X.S.] has never lived with his father, [D.S.], but merely
              visited [D.S.] and his family.

              25. [D.S.] is unemployed and has no independent means to
              provide necessities, including food, clothing, and shelter, for
              himself and his child. Additionally, [D.S.] lives in the home of
              his mother . . . and has no independent means to maintain his
              own home; [D.S.] has no driver’s license nor independent
              transportation . . . .

              26. [Mother] has admitted to substance abuse which has resulted
              in criminal convictions, probation, and which compromises her
              ability to provide care, necessities, and supervision for her young
              children.

              27. [Mother] has not demonstrated that she has resolved her
              substance abuse issues and that she can provide care, necessities,
              and supervision for her children. [Mother] has not consistently
              participated in casemanagement [sic] services, a probation
              violation has been filed regarding her substance abuse services,
              and no evidence such as drug screen results were presented to
              this court regarding her current sobriety.

              28. Neither [C.H.] nor [D.S.] are able or willing to
              independently provide care, necessities, and supervision for their
              children.


      Appellant’s Appendix at 104-05.


[8]   On July 18, the juvenile court issued its Parental Participation Order, ordering

      Mother to engage in a home-based therapy program and follow all

      recommendations, to participate in a substance abuse assessment and

      Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016   Page 7 of 14
       successfully complete all treatment recommendations, and to submit to random

       drug and alcohol screens. Mother now appeals the juvenile court’s order

       adjudicating the Children as CHINS and the juvenile court’s Parental

       Participation Order. Additional facts will be added as necessary.



                                  Discussion and Decision
                                      I. Standard of Review
[9]    When reviewing a juvenile court’s CHINS determination, we neither reweigh

       the evidence nor reassess witness credibility. In re K.D., 962 N.E.2d 1249, 1253

       (Ind. 2012). We consider only the evidence that supports the juvenile court’s

       decision and reasonable inferences drawn therefrom. Id.


[10]   Where, as here, the juvenile court enters findings of fact and conclusions sua

       sponte, we apply a two-tiered standard of review to the issues covered by the

       findings: (1) we determine whether the evidence supports the findings of fact,

       and (2) whether the findings support the judgment. In re S.D., 2 N.E.3d 1283,

       1287 (Ind. 2014). “[W]e review the remaining issues 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.” Id. (citation and

       internal quotation marks omitted).” A finding of fact is clearly erroneous if the

       record lacks evidence, or reasonable inferences from the evidence, to support it.

       In re Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App. 2009), trans. denied.

       The judgment is clearly erroneous if we are left with a “definite and firm

       conviction that a mistake has been made.” In re S.L., 997 N.E.2d 1114, 1123
       Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016   Page 8 of 14
       (Ind. Ct. App. 2013). We will reverse only upon a showing that the court’s

       decision was clearly erroneous. In re K.D., 962 N.E.2d at 1253.


                                   II. CHINS Determination
[11]   Mother contends the juvenile court’s order adjudicating the Children as CHINS

       is clearly erroneous. Specifically, Mother argues the evidence does not support

       six of the juvenile court’s factual findings and the unchallenged findings of fact

       do not support the juvenile court’s judgment. The juvenile court adjudicated

       the Children as CHINS under 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.


       In other words, the statute requires State to prove three basic elements: (1) the

       parent’s actions or inactions have seriously endangered the child, (2) the child’s

       needs are unmet, and (3) the child’s needs are unlikely to be met without State

       intervention. In re S.D., 2 N.E.3d at 1287. “That final element guards against

       Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016   Page 9 of 14
       unwarranted State interference in family life, reserving that intrusion for

       families ‘where parents lack the ability to provide for their children,’ not merely

       where they ‘encounter difficulty in meeting a child’s needs.” Id. (emphasis in

       original) (quoting Lake Cnty. Div. of Family & Children Servs. v. Charlton, 631

       N.E.2d 526, 528 (Ind. Ct. App. 1994)). Because a CHINS proceeding is a civil

       proceeding, the State must prove the child is a CHINS by a preponderance of

       the evidence. In re K.D., 962 N.E.2d at 1253.


[12]   Mother first argues the juvenile court erred when it found certain facts that,

       according to Mother, are not supported by the record. Specifically, Mother

       challenges Factual Findings 13 and 24-28. We interpret Mother’s challenges to

       Factual Findings 24-28 as merely requests for this court to reweigh the

       evidence, which we will not do. 3 See id. As to Factual Finding 13, Mother

       concedes the evidence supports a finding that Feldman filed a petition alleging

       Mother violated probation, but Mother correctly argues there is nothing in the

       record to indicate Feldman filed the petition because of “[Mother’s]’s lack of

       progress in services.” Appellant’s App. at 105. For purposes of this appeal, we

       proceed under the assumption that the latter portion of Factual Finding 13 is

       not supported by the evidence. We note, however, the erroneous portion of

       Factual Finding 13 does not render the juvenile court’s CHINS determination




       3
        Mother also argues Factual Finding 27 indicates the juvenile court shifted the burden of proof to Mother.
       We disagree. At best, Factual Finding 27 merely indicates Mother had the burden of going forward with
       evidence after DCS met its burden.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016           Page 10 of 14
       clearly erroneous because, as discussed below, there is sufficient evidence

       elsewhere to support the juvenile court’s judgment.


[13]   Second, Mother contends there is no evidence that Mother’s actions or

       inactions seriously endangered the Children. We disagree. The juvenile court’s

       findings indicate Mother, while on probation for drug and alcohol related

       offenses, used cocaine approximately three times per week. Moreover, the

       record indicates Mother did not pay for the Children’s food or clothing, Mother

       left the Children with T.S. for days at a time without checking on the Children’s

       well-being, Mother returned to the home intoxicated on two separate occasions,

       and Mother tested positive for cocaine and opiates. The juvenile court’s

       conclusion that Mother’s actions and inactions seriously endangered the

       Children is not clearly erroneous.


[14]   Finally, Mother contends there is no evidence that coercive intervention of the

       court is necessary. As noted above, Mother tested positive for cocaine and

       opiates despite being on probation for convictions related to substance abuse. In

       addition, Mother was inconsistent in meeting with Balzano to discuss working

       toward securing housing, saving money, changing employment, and achieving

       sobriety. Moreover, Balzano opined court intervention was necessary, T.S.

       opined Mother could not achieve sobriety on her own, and even Mother

       admitted to Watson she needed services. The juvenile court’s conclusion that

       coercive intervention of the court is necessary is not clearly erroneous.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016   Page 11 of 14
                             III. Parental Participation Order
[15]   Mother also argues there was insufficient evidence to support the juvenile

       court’s Parental Participation Order requiring Mother to participate in home-

       based therapy, to participate in a substance abuse assessment and successfully

       complete all treatment recommendations, and to submit to random drug and

       alcohol screens. Indiana Code section 31-34-20-3 provides,


               If the juvenile court determines that a parent, guardian, or
               custodian should participate in a program of care, treatment, or
               rehabilitation for the child, the court may order the parent,
               guardian, or custodian to do the following:

                        (1) Obtain assistance in fulfilling the obligations as a
                        parent, guardian, or custodian.

                        (2) Provide specified care, treatment, or supervision for the
                        child.

                        (3) Work with a person providing care, treatment, or
                        rehabilitation for the child.

                        (4) Participate in a program operated by or through the
                        department of correction.


[16]   In support of her argument, Mother relies on our decision in In re A.C., 905

       N.E.2d 456 (Ind. Ct. App. 2009). There, the juvenile court adjudicated A.C. a

       CHINS and ordered the mother, in part, to submit to random drug testing and

       to participate in a substance abuse assessment and successfully complete all

       treatment recommendations. Because neither the record nor the juvenile

       court’s findings referenced any allegations of the mother’s substance abuse, we

       Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016   Page 12 of 14
       vacated those portions of the parental participation decree, reasoning,

       “Although the juvenile court has broad discretion in determining what

       programs and services in which a parent is required to participate, the

       requirements must relate to some behavior or circumstance that was revealed

       by the evidence.” Id. at 464.


[17]   Similar to In re A.C., the juvenile court ordered Mother to participate in a

       substance abuse assessment, successfully complete all treatment

       recommendations, and submit to random drug and alcohol screens. Unlike In

       re A.C., however, the record and the juvenile court’s findings indicate Mother

       has a substance abuse problem. Specifically, Mother has been convicted of

       possession of a controlled substance on two separate occasions, public

       intoxication, and operating a vehicle while intoxicated; Mother admitted to

       using cocaine while on probation and thereafter tested positive for cocaine and

       opiates; and T.S. kicked Mother out of the house because she arrived home

       intoxicated on two separate occasions. We therefore conclude the juvenile

       court’s Parental Participation Order relates to Mother’s behaviors and is not

       clearly erroneous.



                                               Conclusion
[18]   Concluding the juvenile court’s CHINS determination and Parental

       Participation Order are not clearly erroneous, we affirm.


[19]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1507-JC-950 | March 31, 2016   Page 13 of 14
Barnes, J., and Altice, J., concur.




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