MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Oct 04 2017, 7:55 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
Steven J. Halbert                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          David E. Corey
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of M.C. and D.M.                            October 4, 2017
(Minor Children),                                         Court of Appeals Case No.
                                                          49A02-1704-JC-753
Children in Need of Services,
                                                          Appeal from the Marion Superior
         and                                              Court
P.C. (Mother),                                            The Honorable Marilyn A.
Appellant-Respondent,                                     Moores, Judge
                                                          Honorable Diana J. Burleson,
        v.                                                Magistrate
                                                          Trial Court Cause Nos.
Indiana Department of Child                               49D09-1608-JC-3239, - 3240
Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 49A02-1704-JC-753 | October 4, 2017             Page 1 of 11
      Crone, Judge.


                                             Case Summary
[1]   P.C. (“Mother”) appeals a trial court order adjudicating her children, M.C. and

      D.M. (collectively “the Children”), as children in need of services (“CHINS”).

      She asserts that the trial court abused its discretion in considering evidence of

      her current substance abuse issues and improperly took judicial notice of her

      previous criminal cases. She also challenges the sufficiency of the evidence to

      support the CHINS determination. We affirm.


                                  Facts and Procedural History
[2]   Mother was involved with the Department of Child Services (“DCS”) of Vigo

      County from 2008 through 2013. She voluntarily terminated her parental rights

      to three of her children, had her parental rights to her fourth child involuntarily

      terminated, and then voluntarily terminated her parental rights to her fifth

      child. In November 2013, she gave birth to M.C. In March 2014, Marion

      County DCS filed a CHINS petition concerning M.C., due largely to Mother’s

      continued use of illegal drugs. Mother admitted to the allegations in the

      CHINS petition and participated in ordered services, and the case was closed

      successfully on July 1, 2015. Meanwhile, Mother had given birth to D.M. in

      March 2015.


[3]   In August 2016, acting on a report of suspected drug activity and prostitution at

      Mother’s home, DCS initiated proceedings to have the Children adjudicated as

      CHINS. The CHINS petition cited Mother’s substance abuse issues, extensive

      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-JC-753 | October 4, 2017   Page 2 of 11
      history with DCS, and pending criminal charges in Hamilton County. Mother

      failed to appear for an initial hearing, and the Children were ordered removed

      from her care. For approximately one week, the Children’s whereabouts were

      unknown. On September 6, 2016, DCS located them at Mother’s home and

      removed them from her care.


[4]   Mother tested positive for methamphetamine (“meth”) and marijuana on

      September 21, 2016. At the pretrial hearing the following week, the court

      ordered her to take a drug screen, and she refused. She tested positive for meth

      on October 28, 2016.


[5]   In November 2016, police conducted a raid at Mother’s home. Mother’s

      neighbor and block captain Doris Alderman observed eleven people handcuffed

      in Mother’s yard, and Mother was arrested. She appeared for the CHINS

      factfinding on November 30, 2016, and tested positive for THC.1 Mother’s

      DCS family case manager (“FCM”) testified concerning Mother’s instability

      and “extensive history” with DCS and recommended supervised visitation, a

      substance abuse assessment, therapy, and random drug screens. Id. at 30.

      Mother’s drug screen services were suspended due to noncooperation.


[6]   On February 28, 2017, the trial court issued an order with findings of fact and

      conclusions thereon, adjudicating the Children as CHINS. In its findings, the

      trial court cited Mother’s extensive history with DCS, her criminal history, her




      1
          THC is the active ingredient in marijuana.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-JC-753 | October 4, 2017   Page 3 of 11
      continued drug use and positive screens, and criminal activity occurring at her

      home. Following a March 2017 CHINS disposition hearing, the court ordered

      that the Children remain in foster care and that Mother participate in services.


[7]   Mother now appeals.2 Additional facts will be provided as necessary.


                                          Discussion and Decision

              Section 1 – The trial court acted within its discretion in
              admitting evidence of Mother’s current substance abuse
                                       issues.
[8]   Mother challenges the trial court’s admission of evidence concerning her

      current use of illegal drugs. We review a trial court’s admission or exclusion of

      evidence for an abuse of discretion. In re. Des.B., 2 N.E.3d 828, 834 (Ind. Ct.

      App. 2014). A trial court abuses its discretion only if its decision is clearly

      against the logic and effect of the facts and circumstances before it and affects

      the substantial rights of a party. Id. Mother asserts that she lacked sufficient

      notice that her current drug use would be introduced in the CHINS

      proceedings. Although she does not characterize her argument as a due process

      claim, we note that due process protections are vital at all stages of CHINS

      proceedings because every CHINS proceeding has the potential to interfere

      with a parent’s right to raise his or her children. In re L.C., 23 N.E.3d 37, 40

      (Ind. Ct. App. 2015), trans. denied. This ultimately means that the parent in




      2
          The Children’s fathers are not participating in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-JC-753 | October 4, 2017   Page 4 of 11
       CHINS proceedings must be provided “the opportunity to be heard at a

       meaningful time and in a meaningful manner.” Id. (quoting In re G.P., 4

       N.E.3d 1158, 1166 (Ind. 2014)).


[9]    Here, the CHINS petition included the following allegations pertaining to

       Mother’s drug use:3


               d. Mother has a history of illegal drug use, specifically marijuana
               and methamphetamine.

               e. M.C. was removed from Mother’s care by the DCS in 2014
               due to being born drug exposed.

               f. Mother was recently charged in June 2016 for possession of a
               syringe and possession of a controlled substance.

               g. Mother refused to submit to a drug screen [].


       Appellant’s App. Vol. 2 at 42.


[10]   On the third day of the factfinding hearing, Mother objected to witness

       testimony concerning her recent positive drug screens. In overruling her

       objection, the trial court noted that Mother had failed to object earlier when

       similar evidence was introduced. We also note that DCS requested and was

       granted permission to amend the pleadings to conform to the evidence pursuant

       to Indiana Trial Rule 15(B). Mother has not challenged the trial court’s ruling




       3
         To the extent that various petitions and orders identify Mother and the Children by name, we identify them
       as previously indicated in this decision.

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       in her brief on appeal; as such, the issue is not reviewable. See Jeffrey v.

       Methodist Hosps., 956 N.E.2d 151, 158 n.9 (Ind. Ct. App. 2011) (failure to raise

       grounds for error in argument section of appellant’s brief operates as waiver

       under Appellate Rule 46(A)(8)). In short, the CHINS petition allegations and

       unchallenged evidence were sufficient to place Mother on notice that her past

       and current drug use would be issues in the CHINS proceedings. As such, the

       trial court acted within its discretion in considering the evidence concerning

       Mother’s current drug use.


       Section 2 – The trial court acted within its discretion in taking
       judicial notice of records in criminal cases involving Mother.
[11]   In a closely related argument, Mother maintains that the trial court abused its

       discretion in taking judicial notice of the records in criminal cases against her.

       Before 2010, the general rule was that an Indiana trial court was not permitted

       to take judicial notice even of its own records in cases on related matters with

       related parties. In re D.K., 968 N.E.2d 792, 796 (Ind. Ct. App. 2012). However,

       in 2010, Indiana Evidence Rule 201 was amended to permit a court to judicially

       notice the existence of “records of a court of this state.” Ind. Evidence Rule

       201(a)(2)(C). The challenged records involve charges against Mother for

       substance abuse offenses, and Mother’s substance abuse was an important and

       related issue in the CHINS determination. She observes that judicial notice

       extends only to the existence of those cases, not to the facts therein.

       Nevertheless, we note that her point of contention concerns her criminal charge

       for possession of a syringe and the fact that she is a diabetic with a lawful

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      reason to possess a syringe. In its order following the pretrial hearing, the trial

      court indicated that it took into consideration that Mother’s criminal charge

      would be (but had not yet been) dismissed due to her status as a diabetic.

      Appellant’s App. Vol. 2 at 87. Mother has failed to establish an abuse of

      discretion affecting her substantial rights. The trial court acted within its

      discretion in taking judicial notice of Mother’s criminal cases.


        Section 3 – The evidence is sufficient to support the CHINS
                              determination.
[1]   Mother also challenges the sufficiency of the evidence to support the CHINS

      determination. When reviewing the sufficiency of evidence, we give due regard

      to the trial court’s ability to assess the credibility of witnesses. Des.B., 2 N.E.3d

      at 836. We neither reweigh evidence nor judge witness credibility; rather, we

      consider only the evidence and reasonable inferences most favorable to the trial

      court’s decision. In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012). Where the

      trial court issues findings of fact and conclusions thereon, we apply a two-tiered

      standard of review. In re R.P., 949 N.E.2d 395, 400 (Ind. Ct. App. 2011). We

      consider first whether the evidence supports the findings and then whether the

      findings support the judgment. Id. We will set aside the trial court’s findings

      and conclusions only if they are clearly erroneous and a review of the record

      leaves us firmly convinced that a mistake has been made. Id. “Findings are

      clearly erroneous only when the record contains no evidence to support them

      either directly or by inference.” K.B. v. Ind. Dep’t of Child Servs., 24 N.E.3d 997,




      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-JC-753 | October 4, 2017   Page 7 of 11
      1001-02 (Ind. Ct. App. 2015) (citation omitted). “A judgment is clearly

      erroneous if it relies on an incorrect legal standard.” Id. at 1002.


[2]   In a CHINS proceeding, DCS bears the burden of proving by a preponderance

      of the evidence that a child meets the statutory definition of a CHINS. In re

      N.E., 919 N.E.2d 102, 105 (Ind. 2010). To meet its burden of establishing

      CHINS status, the State must prove that the child is under age eighteen,


              (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.


[3]   Although the acts or omissions of one or both parents can cause a condition

      that creates the need for court intervention, the CHINS designation focuses on

      the condition of the child rather than on an act or omission of the parent(s).

      N.E., 919 N.E.2d at 105. In other words, despite a “certain implication of

      parental fault in many CHINS adjudications, the truth of the matter is that a

      CHINS adjudication is simply that – a determination that a child is in need of

      services.” Id. (citations omitted).



      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-JC-753 | October 4, 2017   Page 8 of 11
[4]   Mother admits to her history of drug abuse but maintains that DCS failed to

      establish that the Children were seriously endangered or impaired as a result of

      her alleged inability to provide necessary care and supervision without the

      court’s coercive intervention. She claims that the trial court improperly based

      its decision on her past drug use and relies on cases in which other panels of this

      Court found the evidence of endangerment insufficient to support a CHINS

      determination. See In re S.K., 57 N.E.3d 878, 883 (Ind. Ct. App. 2016) (mother

      and boyfriend’s positive test for amphetamine and meth on day when they were

      children’s sole caregivers not of itself sufficient to establish serious

      endangerment); see also In re S.M., 45 N.E.3d 1252, 1256-57 (Ind. Ct. App.

      2015) (where child’s meconium tested positive for marijuana at birth and where

      all mother’s drug screens during CHINS pendency were clean, Court held that

      a history – whether of substance abuse, DCS contacts, or crimes – is not itself

      sufficient to establish serious endangerment).


[5]   The S.K. and S.M. courts emphasized that a finding of serious endangerment

      cannot be based solely on previous drug use or criminal activity – whether

      isolated or habitual. In contrast, here, Mother failed drug screens during the

      pendency of the CHINS proceedings. Moreover, the evidence of regular, illicit

      activity taking place on Mother’s property concerned the time period after the

      previous CHINS case had closed and during the pendency of the present

      CHINS case. For example, neighbor Alderman reported that she observed a

      police raid at Mother’s home in which eleven people, including Mother, were

      handcuffed and placed in a “paddy wagon.” Tr. Vol. 2 at 16. As a block


      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-JC-753 | October 4, 2017   Page 9 of 11
captain, Alderman had worked with drug task force officers to recognize signs

of suspicious activities and simply testified that she regularly observed what she

perceived to be drug use, needle sharing, and prostitution occurring outside

Mother’s house, in her yard, and in vehicles parked outside Mother’s home and

in front of her own home. Id. at 15-16, 19; see, e.g., Id. at 20-21 (Alderman’s

description of seeing money exchanged for oral sex in vehicle with dome light

illuminated in front of house). To the extent that Mother asks us to discount

Alderman’s testimony because she lacked formal training in detecting drug

activity, we note that Alderman was cross-examined on this subject, and we

remind Mother that we may not reweigh evidence or reassess witness

credibility.4 Alderman also recounted a specific incident prior to the Children’s

removal where D.M. was in a stroller on the porch with Mother and a man,

and the two adults were sticking a needle in Mother’s leg, the stroller “tumbled

down the stairs” with D.M. in it. Id. at 14. Alderman also testified, without

objection, that she would not allow her own child to go near Mother’s house

“because it’s not safe for any child.” Id. at 17. Mother’s drug use and criminal

activities were present, not previous, activities from which the trial court could

reasonably draw an inference of serious endangerment to the Children.




4
  At one point early in Alderman’s testimony, she referenced seeing “deliveries” and “drug usage.” Tr. Vol.
2 at 14. Mother objected on the basis that Alderman was “not qualified to speak on that,” “was not inside
the house,” and “does not know the people who have come and gone.” Id. The trial court “sustain[ed] the
objection for now” but left it open for Alderman to testify “if she’s got any more information or background.”
Id. at 15. Alderman testified at length and was cross-examined concerning the extent of her informal training
on recognizing suspicious activity in the neighborhood.

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-JC-753 | October 4, 2017           Page 10 of 11
[6]   Mother also cites her successful completion of the previous CHINS case

      involving M.C. as evidence that she has improved her lifestyle and no longer

      needs court intervention. However, she admitted to DCS workers that she had

      used marijuana and methamphetamine for an extended time, stopped for a

      while, and resumed her drug use in 2016 when D.M. turned one. Id. at 28.

      The very fact that Mother resumed her drug use shortly after she had ceased

      being under the coercive intervention of the previous CHINS court undercuts

      her argument that she does not now need that same type of coercive

      intervention to help her get clean. Even after the trial court intervened and

      ordered the Children’s removal, Mother was uncooperative and pretended not

      to be home on several occasions when DCS came to her door. One of those

      times, she took the Children and drove away.


[7]   In sum, the evidence of Mother’s current drug use, noncooperation, and

      criminal activity is sufficient to support a finding of serious endangerment to the

      Children stemming from her inability or unwillingness to make and sustain

      necessary changes in her lifestyle without court intervention. Mother has failed

      to demonstrate clear error in the trial court’s adjudication of the Children as

      CHINS. Accordingly, we affirm.


[8]   Affirmed.


      Vaidik, C.J., and Mathias, J., concur.




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