MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be                                         Dec 14 2017, 8:34 am

regarded as precedent or cited before any                                          CLERK
court except for the purpose of establishing                                   Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                          Curtis T. Hill, Jr.
Brownsburg, Indiana                                      Attorney General of Indiana

                                                         Abigail R. Recker
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

IN THE MATTER OF V.C. and                                December 14, 2017
J.C., Minor Children                                     Court of Appeals Case No.
                                                         49A04-1708-JC-1877
                                                         Appeal from the Marion Superior
N.C. (Mother),                                           Court
Appellant-Defendant,                                     The Honorable Marilyn Moores,
                                                         Judge
        v.
                                                         The Honorable Rosanne Ang,
                                                         Magistrate
Indiana Department of Child
                                                         Trial Court Cause No.
Services,
                                                         49D09-1703-JC-681
Appellee-Plaintiff                                       49D09-1703-JC-682




Court of Appeals of Indiana | Memorandum Decision 49A04-1708-JC-1877 | December 14, 2017        Page 1 of 10
      May, Judge.


[1]   N.C. (“Mother”) appeals the adjudication of her children, V.C. and Jo.C.,

      (collectively, “Children”), as Children in Need of Services (“CHINS”). She

      argues the trial court’s order is clearly erroneous because the Department of

      Child Services (“DCS”) did not prove Children were CHINS as required by

      statute. We affirm.



                            Facts and Procedural History
[2]   N.C. and J.C. (“Father”) (collectively, “Parents”), are the parents of V.C. and

      Jo.C., born October 17, 2003, and September 30, 2007, respectively. On

      February 19, 2017, Father overdosed on heroin and passed out on Jo.C.’s bed.

      Mother was at work at the time. Jo.C. found his Father unresponsive and

      enlisted the help of his great-grandmother, who was also home. Father was

      taken to the hospital and recovered.


[3]   DCS investigated the incident, and spoke with Father, who admitted he had

      taken heroin and pain pills in the past, and had overdosed once before. Despite

      the couple being married for fifteen years, Mother indicated she was unaware of

      Father’s drug use. On February 28, 2017, DCS submitted its initial intake

      report, which stated Father “volunteered to leave the home and not return until

      his drug use has been addressed[.]” (App. Vol. II at 38.) Further, the report

      indicated Mother “agreed to not allow [Father] to reside in the home until he is

      a sober caregiver.” (Id.)


      Court of Appeals of Indiana | Memorandum Decision 49A04-1708-JC-1877 | December 14, 2017   Page 2 of 10
[4]   On March 2, 2017, DCS filed a petition alleging Children were CHINS because

      Father overdosed on heroin in Jo.C.’s presence, Father admitted to using

      heroin, Father tested positive for opiates on February 28, 2017, and “[Mother]

      has failed to identify [Father’s] drug use and cannot ensure the safety and well-

      being of [Children] while in [Father’s] care.” (Id. at 30.) On the same day, the

      trial court entered an order allowing Children to reside with Mother

      “contingent upon [Father] not residing in the home and [Mother] and

      [Children’s] participation in homebased therapy.” (Id. at 45.) The trial court

      ordered supervised parenting time for Father and authorized DCS to put

      services into place for Father.


[5]   On June 19, 2017, the trial court held a fact-finding hearing on the CHINS

      petition. Father testified he did not live with Mother and Children because he

      was “not allowed” to do so. (Tr. at 11.) Father indicated he understood he

      could return after he has “[f]ive clean drug screens and meet[s] with a

      therapist,” (id.), but he had not met those requirements by the time of the fact-

      finding hearing.


[6]   Mother testified she did not know Father used drugs and had not spoken to him

      about the overdose that prompted the DCS investigation. Mother also testified

      she would have to know that Father “is not going to be under the influence of

      anything at all[,]” (id. at 21), before she would allow him to live with her and

      Children because she did not tolerate drug use. Mother testified she did not

      believe Father posed a threat to Children because “he wouldn’t let anything

      hurt his children or any kind of harm come around his children.” (Id. at 26.)

      Court of Appeals of Indiana | Memorandum Decision 49A04-1708-JC-1877 | December 14, 2017   Page 3 of 10
      Mother participated in therapy as required by the trial court but stated, “I don’t

      think that I need it.” (Id. at 27.)


[7]   At the time of the fact-finding hearing, Debra Lampkins was Mother’s

      homebased therapist. Lampkins testified Mother denied Father had overdosed

      or that substance abuse occurred in the home. Lampkins indicated that if

      Mother “were to have acknowledged that those things did occur . . . [i]t would

      make it a little bit more easier [sic] to address some issues.” (Id. at 48.)


[8]   The trial court adjudicated Children as CHINS on July 17, 2017. On August 8,

      2017, the trial court held a dispositional hearing. The trial court entered

      parental participation orders for both parents the same day. Mother’s order

      required her to engage “in a home-based therapy program referred by the

      Family Case Manager and follow all recommendations.” (App. Vol. II at 98.)

      She was also ordered to “engage in [Children’s] therapy as recommended and

      follow all recommendations.” (Id.) The trial court ordered Father to engage in

      home-based therapy and follow all recommendations; complete a substance

      abuse assessment and successfully complete all recommended treatment; submit

      to random drug screens; and engage in Children’s therapy and follow all

      recommendations.



                                 Discussion and Decision




      Court of Appeals of Indiana | Memorandum Decision 49A04-1708-JC-1877 | December 14, 2017   Page 4 of 10
[9]    A CHINS proceeding is civil in nature, so DCS must prove by a preponderance

       of the evidence that a child is a CHINS as defined by the juvenile code. In re

       N.E., 919 N.E.2d 102, 105 (Ind. 2010). Ind. Code § 31-34-1-1 states:


               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 “focuses on the condition of the child,” and not the

       culpability of the parent. In re N.E., 919 N.E.2d at 105. The purpose of finding

       a child to be a CHINS is to provide proper services for the benefit of the child,

       not to punish the parent. Id. at 106.


[10]   When a juvenile court enters findings of fact and conclusions of law in a

       CHINS decision, we apply a two-tiered review. Parmeter v. Cass Cty. DCS, 878

       N.E.2d 444, 450 (Ind. Ct. App. 2007), reh’g denied. We first consider whether

       the evidence supports the findings and then whether the findings support the

       judgment. Id. We may not set aside the findings or judgment unless they are

       clearly erroneous. Id. Findings are clearly erroneous when the record contains

       Court of Appeals of Indiana | Memorandum Decision 49A04-1708-JC-1877 | December 14, 2017   Page 5 of 10
       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. We give due

       regard to the juvenile court’s ability to assess witness credibility and we do not

       reweigh the evidence; we instead consider the evidence most favorable to the

       judgment with all reasonable inferences drawn in favor of the judgment. Id.

       We defer substantially to findings of fact, but not to conclusions of law. Id.


                                             Challenged Finding

[11]   Mother challenges the trial court’s finding that “[Mother] has failed to take any

       action to protect the children from being exposed to [Father’s] drug use.” (App.

       Vol. II at 86.) Mother argues that finding is clearly erroneous and not

       supported by the evidence because Father does not live with Children, Father

       volunteered to move out of the home until he completed drug treatment, and

       Mother will not allow Father to live with Children until he completes drug

       treatment. The State points to evidence that Mother allowed Father to live with

       Children until DCS completed its investigation, over a week after Father

       overdosed; that Mother did not acknowledge that Father had a drug problem or

       that he overdosed; and that Mother testified she did not believe Father posed a

       threat to Children. Mother’s argument is a request that we reweigh the

       evidence and judge the credibility of witnesses, which we cannot do. See

       Parmeter, 878 N.E.2d at 450 (appellate court cannot reweigh evidence or judge

       the credibility of witnesses). Mother does not challenge any other of the trial

       court’s findings, and thus they stand as proven. See Madlem v. Arko, 592 N.E.2d



       Court of Appeals of Indiana | Memorandum Decision 49A04-1708-JC-1877 | December 14, 2017   Page 6 of 10
       686, 687 (Ind. 1992) (“Because Madlem does not challenge the findings of the

       trial court, they must be accepted as correct.”).


                       Mother’s Challenges to the Trial Court’s Conclusions

[12]   The trial court found:


               [Mother] engaged in homebased therapy with Debra Lampkins.
               In working with Ms. Lampkins, [Mother] has denied any drug
               use in the home and has denied that [Father] overdosed in
               February. Ms. Lampkins is unable to fully provide therapeutic
               services to [Mother] without recognition of the concerns which
               exist in the family home.


       (App. Vol. II at 85.) Mother argues this finding does not support the trial

       court’s conclusion “that the children are neglected or that the coercive

       intervention of the court is necessary.” (Br. of Appellant at 17.) She asserts

       “[Children] are not CHINS simply because Mother failed to fully cooperate

       with Lampkins.” (Id. at 18.) In support of her argument, she cites In re T.H.,

       856 N.E.2d 1247 (Ind. Ct. App. 2006), and M.K. v. Indiana DCS, 964 N.E.2d

       240, 247 (Ind. Ct. App. 2012). Both are inapposite.


[13]   The CHINS action in In re T.H. was based on Father’s improper storage of his

       handgun and his refusal to cooperate with DCS services. We reversed the trial

       court’s CHINS adjudication because there was no evidence “the gun still

       endangered the children at the time of the hearing in this case.” In re T.H., 856

       N.E.2d at 1251. Additionally, “[w]e decline[d] to say that failing to complete

       services necessarily means a child is a CHINS unless there is some evidence of


       Court of Appeals of Indiana | Memorandum Decision 49A04-1708-JC-1877 | December 14, 2017   Page 7 of 10
       substantial parental shortcomings endangering a child that needed to be

       addressed by these services.” Id. Such is not the case here, as Father’s drug use

       has not been remedied like the gun storage issues in In re T.H.


[14]   In M.K., we also reversed a CHINS adjudication despite a parent being

       uncooperative, explaining that “to the extent the Guardian ad Litem cites

       Father’s evasiveness or refusal to answer questions as evidence supporting the

       judgment, we note that Father’s reticence pertained to disclosing specific facts

       surrounding the events in Texas involving his own mother’s treatment of

       Mother, based seemingly on racial grounds.” M.K., 964 N.E.2d at 247 n.8

       (internal citations to record omitted). M.K. does not apply here, as the housing

       issues that precipitated DCS’s involvement with the family in M.K. had been

       resolved by the time of the hearing, whereas Father’s drug use has not been

       remedied.


[15]   Herein, Children are not CHINS because Mother did not cooperate with her

       therapist. Children are CHINS because Father used drugs in the familial home,

       overdosed, and has not sought proper treatment, and Mother’s reluctance to

       acknowledge Father’s behaviors creates concern about her ability to protect

       Children if Father continues to use drugs.


[16]   The trial court also found:


               [Children’s] physical or mental condition is [sic] 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

       Court of Appeals of Indiana | Memorandum Decision 49A04-1708-JC-1877 | December 14, 2017   Page 8 of 10
               care, education, or supervision. [Father] used heroin at the
               family residence with [Jo.C.] in the home and nearly died in
               [Jo.C.’s] bed. This is not the first time that [Father] has
               overdosed. [Father] has failed to seek treatment for his addiction
               and continues to use illicit substances. [Mother] denies her
               husband’s drug use and alleges that she would not allow him to
               return to the home if he were using illicit substances. However,
               [Mother] picked [Father] up from the hospital after his most
               recent overdose and allowed him to remain in the home until the
               involvement of the DCS. [Mother] has failed to acknowledge the
               severe substance abuse on the part of her husband and protect the
               children from the same.


       (App. Vol. II at 86.) Mother argues the trial court’s finding, “[Mother] picked

       [Father] up from the hospital after his most recent overdose and allowed him to

       remain in the home until the involvement of the DCS[,]” (id.), does not support

       the conclusion “that the coercive intervention of the court is necessary.” (Br. of

       Appellant at 18.)


[17]   However, that finding was not listed as supporting the trial court’s conclusion

       the coercive intervention of the court is necessary. Instead, it was cited as a

       reason Children’s physical or mental conditions were seriously impaired or

       endangered as a result of Parents’ inability, refusal, or neglect to supply

       necessary food, clothing, shelter, medical care, education, or supervision.

       Further, even if the finding were erroneous, “even an erroneous finding is not

       fatal to a trial court’s judgment if the remaining valid findings and conclusions

       support the judgment, rendering the erroneous finding superfluous and

       harmless as a matter of law.” Curley v. Lake Cty. Bd. of Elections & Registration,

       896 N.E.2d 24, 32 (Ind. Ct. App. 2008), trans. denied.
       Court of Appeals of Indiana | Memorandum Decision 49A04-1708-JC-1877 | December 14, 2017   Page 9 of 10
[18]   Here, DCS presented evidence Father used heroin while at home with Jo.C.

       and overdosed. Father had not obtained substance abuse treatment or

       participated in drug screens at the time of the fact-finding or dispositional

       hearings, though he had been ordered to do so by the trial court. While Mother

       ensured Father did not live with Mother and Children, she did not acknowledge

       Father had a drug problem or that Father overdosed. We conclude DCS

       presented sufficient evidence to support the trial court’s findings and the

       findings supported the conclusions that resulted in Children being declared

       CHINS. See, e.g., In re J.L., 919 N.E.2d 561, 564 (Ind. Ct. App. 2009) (evidence

       sufficient to support CHINS adjudication when Mother was under the influence

       of marijuana while child was in the home).



                                               Conclusion
[19]   DCS presented evidence Father used heroin in the family home, overdosed,

       and had not obtained treatment. In addition, there was evidence Mother

       refused to acknowledge Father’s drug problem and had not benefitted from

       services. Based thereon, we conclude that evidence supported the trial court’s

       findings and those findings supported the trial court’s conclusion Children were

       CHINS. Accordingly, we affirm.


[20]   Affirmed.


       Vaidik, C.J., and Altice, J., concur



       Court of Appeals of Indiana | Memorandum Decision 49A04-1708-JC-1877 | December 14, 2017   Page 10 of 10
