Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res                            Aug 09 2013, 9:22 am
judicata, collateral estoppel, or the law
of the case.



ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

NOAH L. GAMBILL                                 ELIZABETH A. LEWIS
Wagner Crawford and Gambill                     DCS, Local Office in Vigo County
Terre Haute, Indiana                            Terre Haute, Indiana

                                                ROBERT J. HENKE
                                                DCS Central Administration
                                                Indianapolis, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA

IN THE MATTER OF S.K.,                          )
A CHILD IN NEED OF SERVICES,                    )
                                                )
               and,                             )
                                                )
A.R.,                                           )
                                                )
        Appellant-Respondent,                   )
                                                )
               vs.                              )    No. 84A05-1301-JC-7
                                                )
THE INDIANA DEPARTMENT OF                       )
CHILD SERVICES,                                 )
                                                )
        Appellee-Petitioner.                    )


                        APPEAL FROM THE VIGO CIRCUIT COURT
                             The Honorable David R. Bolk, Judge
                          The Honorable Daniel W. Kelly, Magistrate
                               Cause No. 84C01-1204-JC-486
                                      August 9, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge

                                     Case Summary

       A.R. (“Mother”) appeals the determination that her son, S.K., is a child in need of

services (“CHINS”). We affirm.

                                          Issue

       Mother raises one issue, which we restate as whether there is sufficient evidence to

support the trial court’s determination that S.K. is a CHINS.

                                          Facts

       On February 28, 2012, then fourteen-year-old S.K. called the Department of Child

Services (“DCS”) to report that he was staying with the Catons, close family friends, in

Terre Haute because of Mother’s homelessness and Mother’s alleged methamphetamine

use.   Kerri Brown, a DCS family case manager, opened the investigation and

unsuccessfully attempted to contact Mother. Because Mother had voluntarily placed S.K.

with the Catons, the Catons were willing and able to care for S.K., and S.K. wanted to be

with the Catons, Brown began the process of closing the case.

       Mother got her own apartment, and S.K. moved back in with Mother on April 6,

2012. On April 9, 2012, while the case was still in the process of being closed, S.K.

contacted Brown and told her that he was scared because Mother and a friend had

smoked methamphetamine in a bedroom of the apartment. Brown contacted police, who

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conducted a welfare check.       Deputy Joe Kenworthy of the Vigo County Sheriff’s

Department investigated. S.K. told Deputy Kenworthy that Mother and her friend had

left to sell Sudafed to earn money for dinner. S.K. showed Deputy Kenworthy a crack

pipe he had found in the bedroom. Deputy Kenworthy noted that there was no food in

the apartment.

       When Mother returned, she was “very, very agitated,” and Deputy Kenworthy

believed “that probably she was tweaking a little.” Aug. Tr. p. 6. Mother’s emotions

were like a roller coaster, and Deputy Kenworthy did not think S.K. would be safe there.

When Debbie Seifert from DCS arrived, Mother refused a drug screen but agreed to

allow S.K. to return to the Catons for the night.

       Mother met with Brown the next day and again refused a drug screen and refused

all services. Mother did agree to allow S.K. to remain with the Catons and to begin

guardianship proceedings to allow her some time to get on her feet financially. Although

Mother initiated guardianship proceedings, she later changed her mind.

       On April 16, 2012, Mother contacted Brown demanding to know why S.K. was

home sick that day, and Brown informed her that she did not know because S.K. was not

a ward of the State. Later that day, the principal from S.K.’s high school called Brown

and told her that Mother was “yelling and screaming inside the school.” Id. at 27.

       On April 18, 2012, DCS filed a petition alleging that S.K. was a CHINS. That

same day, Mother submitted to a drug screen, which was positive for methamphetamine.

The next day, she submitted to another screen, which was negative. Mother refused all

further drug screens. On August 7, 2012, and October 9, 2012, fact finding hearings were

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held at which S.K., who was then fifteen years old, testified. On October 22, 2012, the

trial court issued an order finding:

              1.      That on May 15, 2012, the father, [L.K.], admitted to
              all of the facts contained in the DCS petition.

              2.     That at the factfinding hearing held on August 7, 2012
              and concluding on October 9, 2012, Vigo County Sheriff
              Reserve Deputy Joe Kenworthy presented testimony that on
              April 9, 2012, he was dispatched to International Village
              Apartments to conduct a well-child check and met with
              [S.K.], who advised that he had been living with a friend but
              had returned home three days earlier. [S.K.] informed that
              officer that his mother, who used to use drugs, had a friend
              come over and go into his mother’s bedroom and smoke
              something. He said that they were in the room for about 15
              minutes and when they came out, the room was smoky. His
              mother told [S.K.] that she was leaving to go sell some
              Sudafed. [S.K.] told the officer that he found a crack pipe in
              the house and the pipe was photographed. The officer
              observed that there was no food in the cabinets or refrigerator.
              Officer Kenworthy testified that when he discussed the matter
              with [Mother], she was highly agitated and would blow up in
              anger, calm down, and pace furiously, all in rapid succession.
              [S.K.] stated that he had received numerous texts from his
              mother, admitting that she had returned to using
              methamphetamines.

              3.      FCM Debbie Siefert testified that when she arrived at
              the home to speak with [S.K.] and [Mother], [S.K.] disclosed
              that he did not feel safe at home as a result of his mother’s
              erratic behavior. [Mother], who had been yelling and pacing
              in the room, refused to submit to a drug screen, but ultimately
              agreed to a safety plan that allowed [S.K.] to temporarily
              return to the home of the friend he had been living with until
              shortly before this incident.

              4.     FCM Carrie [sic] Brown presented testimony that she
              had investigated an earlier report of [Mother] smoking meth
              in [S.K.’s] presence, which was not substantiated. But she
              then investigated the 4-9-12 report and learned, among other
              things, that on April 16, 2012, [Mother] had come to South

                                             4
             Vigo High School to discuss her son’s situation with the
             principal, Chris Mauk. During the meeting, . . . [Mother] was
             “sweating profusely and very agitated about her son.” She
             “became mad at points and also broke down into tears at other
             points.”

             5.     FCM Brown also testified that DCS substantiated the
             4-9-12 report for “neglect for environment life/health
             endangering.” At the conclusion of the initial hearing on 4-
             18-12, the court ordered [Mother] to submit to a drug screen,
             and the test results, which were admitted into evidence as
             “Petitioner’s Exhibit I,” showed the presence of meth in
             [Mother’s] system.

             6.      The minor child, [S.K.], provided background
             information that demonstrated that he had lived with his
             father for several years until 2009 due to his mother’s
             incarceration, and that the three-year period of his
             reunification with his mother was marked by long periods of
             her drug use, domestic violence and housing instability,
             resulting in [S.K.] living away from his mother and with
             others for much of the time. [S.K.] had only returned to
             mother’s home three days before the 4-9-12 incident.

App. pp. 6-7. The trial court concluded that S.K. was a CHINS. Mother now appeals.

                                         Analysis

      The CHINS petition was based on 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:


                                             5
                     (A) the child is not receiving; and

                     (B) is unlikely to be provided or accepted without the
                     coercive intervention of the court.

       A CHINS proceeding is a civil action, and the State is required to prove by a

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

In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012). In our review of a CHINS determination,

we consider only the evidence that supports the trial court’s decision and reasonable

inferences drawn therefrom, and we neither reweigh the evidence nor judge the

credibility of the witnesses. Id.

       Because the trial court issued findings and conclusions, our standard of review is

two-tiered. In re A.I., 825 N.E.2d 798, 805 (Ind. Ct. App. 2005), trans. denied. “First,

we must determine whether the evidence supports the findings and, second, whether the

findings support the conclusions of law.” Id. “In deference to the trial court’s unique

position to assess the evidence, we set aside the trial court’s findings and judgment

terminating a parent-child relationship only if they are clearly erroneous.” Id. A finding

is clearly erroneous when there are no facts or inferences drawn therefrom to support it.

A judgment is clearly erroneous only if the conclusions of law drawn by the trial court

are not supported by its findings or the conclusions do not support the judgment.

       Mother argues, “[t]he trial court’s decision is clearly erroneous because there is no

evidence that would support a CHINS adjudication based on alleged illegal drug usage.”

Appellant’s Br. p. 17. Mother relies on Perrine v. Marion Cnty. Office of Child Servs.,

866 N.E.2d 269, 277 (Ind. Ct. App. 2007), in which we held “that a single admitted use


                                             6
of methamphetamine, outside the presence of the child and without more, is insufficient

to support a CHINS determination.” We also concluded “[t]he mere presence of drug

paraphernalia in a bag in the residence is insufficient to support a finding of neglect under

Indiana Code Section 31-34-1-1.” Perrine, 866 N.E.2d at 277.

       To the extent Mother denies that she smoked methamphetamine and argues that

there is not clear evidence drug use took place, she is asking us to reweigh the evidence,

which we cannot do. The positive drug screen, S.K.’s assertions, the paraphernalia found

in the room shortly after Mother was alleged to have been smoking, Mother’s history of

drug use, and the testimony of Mother’s erratic and agitated behavior support the

inference of drug use. This case is distinguishable from Perrine because it does not

involve a single admitted use of methamphetamine outside the presence of a child or the

mere presence of drug paraphernalia in the residence.

       Further, although Mother claims that many of the findings are not supported by the

evidence, our review of the record confirms that the trial court’s findings accurately

reflect the testimony of the various witnesses. To the extent Mother, based largely on her

own testimony, challenges these findings, she is asking us to reweigh the evidence. We

cannot do that.

       Mother also asserts that the trial court should not have considered any alleged

occurrences before April 9, 2012, because, “[a]s a matter of public policy, it is

counterintuitive that a trial court should rely on previous acts not related to events in the

underlying petition.” Appellant’s Reply Br. p. 7. This argument is flawed because the

petition references S.K. having been with the Catons for the last five months because he

                                             7
was homeless, Mother using drugs, and the February 2012 report to DCS. Thus, these

matters were related to allegations in the petition.

       Mother also contends it was clearly erroneous to find S.K. to be a CHINS based

on her behavior, “when the Mother is upset and frustrated that a system meant to protect

children is inserting itself into a family situation that she strongly feels is unnecessary and

intrusive.” Appellant’s Br. p. 19. As our supreme court has observed, however, “[a]

CHINS adjudication focuses on the condition of the child.” In re N.E., 919 N.E.2d 102,

105 (Ind. 2010). Further:

              While we acknowledge 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. Standing alone, a CHINS
              adjudication does not establish culpability on the part of a
              particular parent. . . . In fact, a CHINS intervention in no way
              challenges the general competency of a parent to continue a
              relationship with the child.

Id.   Thus, to the extent Mother’s behavior impacts S.K., it is a relevant basis for

determining whether he is a CHINS.

       As for Mother’s assertion that it was clearly erroneous for the trial court to rely on

Father’s admission when he had not been involved in S.K.’s life for the past three years,

we do not believe the trial court’s determination that S.K. was a CHINS was based on

this admission. Instead, it is clear that the determination was based on the extensive

evidence of Mother’s unstable housing and financial situation over the past several

months, her erratic behavior toward police officers, DCS workers, and school officials,




                                              8
S.K.’s fear of Mother, and the purported drug use. The evidence supports the trial court’s

findings, and the findings support the determination that S.K. is a CHINS.

                                       Conclusion

      Mother has not established that the trial court’s determination that S.K. is a

CHINS is clearly erroneous. We affirm.

      Affirmed.

NAJAM, J., and BAILEY, J., concur.




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