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
                                                Jan 23 2015, 10:03 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.



ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

MARK LEEMAN                                 GREGORY F. ZOELLER
Cass County Conflict Public Defender        Attorney General of Indiana
Leeman Law Offices
Evansville, Indiana                         ROBERT J. HENKE
                                            Deputy Attorney General
                                            Indianapolis, Indiana

                                            ABIGAIL R. MILLER
                                            Graduate Law Clerk
                                            Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

IN THE MATTER OF:                           )
                                            )
V.B., P.B. & B.B., (Minor Children),        )
CHILDREN ALLEGED TO BE CHINS                )
                                            )
And                                         )
                                            )
A.B., (Mother)                              )
                                            )
       Appellant-Respondent,                )
                                            )
              vs.                           )      No. 09A02-1407-JC-518
                                            )
THE INDIANA DEPARTMENT OF CHILD             )
SERVICES,                                   )
                                            )
       Appellee-Petitioner.                 )
                    APPEAL FROM THE CASS CIRCUIT COURT
                        The Honorable Leo T. Burns, Judge
                          Cause No. 09C01-1402-JC-11
                          Cause No. 09C01-1402-JC-12
                          Cause No. 09C01-1402-JC-13



                                   January 23, 2015


            MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Judge


                               Case Summary and Issues

      A.B. (“Mother”) appeals from the juvenile court’s determination that her three

children are children in need of services (“CHINS”). She raises two issues for our review:

1) whether the evidence was sufficient to show that her children are CHINS, and 2) whether

the juvenile court abused its discretion in admitting an Indiana Department of Child

Services (“DCS”) exhibit into evidence. Concluding the testimony at the fact-finding

hearing was sufficient to show that Mother’s children were CHINS and that any error in

the admission of the challenged exhibit was harmless, we affirm.

                              Facts and Procedural History

      Mother has three minor children (collectively, “the Children”), and in the early part

of 2014, she was renting an apartment on Heath Street in Logansport, Indiana. The




                                            2
Children’s uncle, Samuel Gentry, also lived at that address. Mother’s boyfriend, Robert

Dowell, lived on West Wabash Street in Logansport.

      On February 18, 2014, Mother dropped off the Children at a babysitter’s house

between 10:00 a.m. and 11:00 a.m. and did not pick the Children up until about 9:30 p.m.

that night. Mother then dropped the Children off at the Heath Street apartment with Gentry

between 9:30 p.m. and 10:30 p.m.

      On the same evening, an officer from the Logansport Police Department received a

complaint alleging that there was drug activity with children present at Dowell’s address

on West Wabash Street. Several officers responded to the call, arriving at the home around

10:30 p.m. When Dowell answered their knock, they could smell a chemical odor they

associated with the manufacture of methamphetamine coming from within. The officers

received permission to search the home for children. No children were present; however,

because the officers continued to smell the chemical odor, they detained both Mother and

Dowell and obtained a search warrant to search the home for drug activity.

      One of the rooms in the home was blue and gray and contained articles of children’s

clothing, Disney movies, diapers, and toys. It “appeared that children had been in there.”

Transcript at 71. An adjacent room had been converted into a tattoo parlor and contained

an active methamphetamine laboratory, including drug paraphernalia and items used to

manufacture methamphetamine. Mother and Dowell were arrested.

      Mother told the officers that the Children were at the Heath Street apartment with

Gentry, and one of the officers went there to locate the Children. Because Gentry had

active warrants for his arrest, the officer obtained a search warrant before entering the

                                            3
home. Upon entry, the officer saw three children sleeping in the living room. The floors

of the apartment were covered with trash, dirty diapers, empty alcohol bottles, and cat

feces. There was a lighter and a bottle of kitchen cleaner on the stove, and the refrigerator

contained no edible food and spoiled milk. Gentry was arrested on the outstanding

warrants and DCS was called. The Children were eventually taken to the hospital where

they tested negative for alcohol and methamphetamine exposure.

       The DCS employee who conducted the preliminary inquiry on February 18-19

spoke with Mother, who admitted she and the Children had stayed at Dowell’s home

previously but denied the Children were there on February 18. Several weeks later,

however, Mother told a consultant during a supervised visit with the Children that the

Children had been eating candy bars at Dowell’s home in the morning on the day she was

arrested. The DCS intake officer also spoke with Mother’s oldest child, who stated her

family had moved in with Dowell and that she and her siblings had a blue and gray bedroom

there. Based upon this information, DCS asserted in a request for the juvenile court to

authorize the filing of CHINS petitions that the environment in which the Children were

found was below the minimum sufficient level of care and that there was reason to believe

the Children had been in a home where methamphetamine was manufactured. The juvenile

court authorized the filing of the CHINS petitions. Following an initial hearing on

February 20, the Children were placed into foster care, and Mother was referred to Lifeline

Youth and Family Services (“Lifeline”), where she began participating in supervised visits

and case management services.



                                             4
       On June 25, 2014, the juvenile court held a fact-finding hearing at which the

testimony was consistent with the above recitation of facts. In addition, Gentry testified

that he had been staying at the Heath Street apartment for approximately two months prior

to the Children’s removal and that Mother and the Children only stayed there “every now

and then.” Tr. at 100. As far as he knew, Mother and the Children were living at Dowell’s

home, and they had not been at the Heath Street apartment on the morning of February 18.

Also, one of the DCS family case managers testified that Mother had acquired suitable

housing and had tested negative on every drug screen. However, because Mother was

living with Dowell and intended to continue her relationship with him, DCS required

Dowell to participate in services. DCS believed he could be a threat to the Children’s

safety if they were returned to Mother’s home. Dowell had not participated in any services

and was incarcerated on drug-related charges at the time of the hearing.

       The juvenile court admitted several items of documentary evidence offered by DCS

during the fact-finding hearing, including, over Mother’s hearsay objection, Exhibit 2, an

assessment of the alleged child abuse or neglect. Ultimately, the juvenile court found that

the Children were CHINS and concluded that removal from the home was in the best

interest of the Children because of Mother’s “inability to provide shelter, care, and/or

supervision at the present time[,]” and because “the children need protection.” Appellant’s

Appendix at 107.

       The juvenile court issued a dispositional order on July 17, 2014, outlining a Parent

Participation Plan and awarding wardship of the Children to DCS. Mother now appeals

the juvenile court’s CHINS adjudication.

                                            5
                                   Discussion and Decision

                               I. Sufficiency of the Evidence

                                   A. Standard of Review

       “Because a CHINS proceeding is a civil action, the State must prove by a

preponderance of the evidence that [the Children are] CHINS as defined by the juvenile

code.” In re N.E., 919 N.E.2d 102, 105 (Ind. 2010); Ind. Code § 31-34-12-3. To do this,

the State must prove that:

       (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.

Indiana Code § 31-34-1-1. “[A] CHINS adjudication under [this statute] requires three

basic elements: that the parent’s actions or inactions have seriously endangered the child,

that the child’s needs are unmet, and (perhaps most critically) that those needs are unlikely

to be met without State coercion.” In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014).

       The juvenile court entered findings of fact and conclusions. When a trial court

enters findings of fact and conclusions of law, we will not set either aside unless they are

clearly erroneous. Ind. Trial Rule 52(A). In making that determination, we will consider

whether the evidence supports the factual findings and whether the findings support the

judgment. In re L.P., 6 N.E.3d 1019, 1020 (Ind. Ct. App. 2014). “Findings are clearly

erroneous when the record contains no facts to support them directly or by inference[,]”


                                               6
and the “judgment is clearly erroneous if it relies upon an incorrect legal standard.” Id. In

conducting our review, “we consider only the evidence most favorable to the judgment and

the reasonable inferences flowing therefrom.” In re M.W., 869 N.E.2d 1267, 1270 (Ind.

Ct. App. 2007). We will neither reweigh the evidence nor judge the credibility of the

witnesses. In re S.W., 920 N.E.2d 783, 787 (Ind. Ct. App. 2010). “While we defer

substantially to findings of fact, we do not do so as to conclusions of law.” In re L.P., 6

N.E.3d at 1020.

                      B. Evidence Supporting CHINS Adjudication

       Mother contends there was not sufficient evidence to show the Children were

CHINS because the Children were not present at the West Wabash home at the time the

active methamphetamine laboratory was found. Mother’s argument primarily relies on

Perrine v. Marion Cnty. Office of Child Servs., 866 N.E.2d 269 (Ind. Ct. App. 2007), where

this court held that the mother’s one time use of methamphetamine outside the presence of

her child was insufficient to support a CHINS determination because such a scenario did

not seriously endanger the child. Id. at 276. Analogizing the facts in Perrine to the facts

of the present case, Mother argues that her one time presence at the scene of an active

methamphetamine lab outside the presence of the Children is not sufficient to support the

court’s CHINS determination.

       At the fact-finding hearing, one of the police officers who responded to the February

18 call testified that although no children were found at the West Wabash Street home, it

appeared from the contents of the room adjacent to the methamphetamine lab that children

had been in there. Although Mother paid rent at the Heath Street apartment, Gentry

                                             7
testified that Mother only stayed there on occasion; rather, Mother had been staying at

Dowell’s house and as far as he knew, the Children were living there with her. The Lifeline

family consultant testified that Mother disclosed during one of Mother’s supervised visits

that the Children had been at Dowell’s house the morning of the day the officers found the

active methamphetamine lab but then immediately asked her not to tell “because she told

everyone else that the kids weren’t at the house.” Tr. at 119. Based on the evidence

presented at the hearing, the juvenile court found, in relevant part, that:

        Through the testimony of Officer Dillon of the Logansport Police
          Department an active methamphetamine lab was located at . . . west [sic]
          Wabash Ave in Logansport, IN where the Mother, [A.B.] was located and
          arrested. The officer did not locate the above three children at that
          address. Officers were given information from Mother, [A.B.] that her
          three children were at . . . Heath Street . . . in Logansport, IN with a
          babysitter, Samuel Gentry.
       ***
        Through the testimony of Samuel Gentry he was the only person living
          at the . . . Heath Street . . . address as the Mother, [A.B.] and her three
          children were residing at the home of her boyfriend, Robert Dowell.
        Through the testimony of Lifeline case worker, . . . the Mother admitted
          to her during a visit with her three children that the children were at the
          home of Robert Dowell on the day the children were removed from her
          care by the Department of Child Services. . . .
        Through the testimony of Family Case Manager, . . . the Mother, [A.B.]
          has stated that she is continuing her relationship with her boyfriend
          Robert Dowell despite the safety concerns of DCS about him being
          around the children. . . .

Appellant’s Appendix at 106. The testimonial evidence, alone, supports these findings.

       By relying on Perrine, Mother essentially argues that the evidence was insufficient

to show that her actions or inactions seriously endangered the Children. However, unlike

the mother’s single use of methamphetamine away from the children in Perrine, in the

present case, Mother had the Children in the very same home as an active
                                              8
methamphetamine lab within hours of its discovery, something that is inherently

dangerous. See State v. Bulington, 802 N.E.2d 435, 440 (Ind. 2004) (noting that the

noxious fumes and the risk of fire and explosions caused by the manufacture of

methamphetamine poses danger to the lives of children). Neither the fact that the Children

tested negative for methamphetamine exposure nor the Children’s absence from the home

at the time of arrest ameliorates that danger if they were regularly living in the home.

       A CHINS finding should consider the family’s condition at the time the case is filed

and also at the time it is heard. In re S.D., 2 N.E.3d at 1290. “[T]he purpose of a CHINS

adjudication is to protect children, not punish parents,” and in making its decision, the trial

court will look to the best interests of the child. In re N.E., 919 N.E.2d at 106. Although

testimony at the fact-finding hearing showed that Mother made progress in providing the

care and protection the Children need by passing several random drug screens, finding a

job, finding an apartment, and participating in Lifeline services since the petitions were

filed, the testimony also showed that the Children would again be placed in danger if they

were returned to Mother.

       The DCS case manager testified that she had met with Mother and Dowell and

informed them that Dowell needed to participate in services—including substance abuse

evaluation and treatment—if the Children were to be returned to Mother while she and

Dowell continued their relationship. DCS wanted to make sure it was safe for the Children

to be around Dowell, as he had used methamphetamine. Although Dowell was living in

Mother’s new apartment when the DCS case manager performed an assessment in May of

2014, Dowell had not participated in the required services. Moreover, even after Dowell

                                              9
was arrested shortly after the assessment on drug-related charges, Mother indicated to DCS

that she wanted to continue the relationship because she “feels that she can help him

process through his addiction . . . .” Tr. at 137. The juvenile court therefore concluded

that the Children would again be exposed to a dangerous environment.

       The State need only prove by a preponderance of the evidence that the Children are

endangered and in need of care they can only receive by judicial intervention. Although

the evidence linking the Children’s presence to the West Wabash home on the day an active

methamphetamine lab was discovered is circumstantial, there is sufficient evidence to

make that inference and it demonstrates poor decision-making on Mother’s part.

Moreover, Mother’s insistence on continuing her relationship with Dowell despite her

acknowledgement that he has addiction issues coupled with Dowell’s refusal to participate

in services to assure that the Children will be safe in his presence demonstrates that judicial

intervention is needed. Accordingly, sufficient evidence exists to support the juvenile

court’s findings and judgment that the Children are CHINS.

                                 II. Admission of Evidence

       Mother also argues that the juvenile court abused its discretion by admitting DCS

Exhibit 2, an assessment of alleged child abuse or neglect, because it was inadmissible

hearsay. She further argues that its admission was not harmless error.

       “The admission of evidence is entrusted to the sound discretion of the trial court,”

and that discretion is abused when the court’s decision is against the logic and effect of the

facts and circumstances. In re A.J., 877 N.E.2d 805, 813 (Ind. Ct. App. 2007), trans.

denied. “The fact that evidence was erroneously admitted does not automatically require

                                              10
reversal, and we will reverse only if we conclude the admission affected a party’s

substantial rights.” Id. “In general, the admission of evidence that is merely cumulative

of other evidence amounts to harmless error . . . .” In re Paternity of H.R.M., 864 N.E.2d

442, 450 (Ind. Ct. App. 2007).

       Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.

See Ind. Evidence Rule 801. Hearsay is inadmissible unless it falls under an exception

provided either by law or the rules of evidence. Ind. Evidence Rule 802. Over Mother’s

hearsay objection, the juvenile court admitted DCS Exhibit 2, a report written by one of

the DCS case managers which summarized several events and conversations that transpired

out-of-court between February 19, 2014 and March 26, 2014. Although the case manager

who wrote the report was unavailable to testify at the hearing and her signature was missing

from the document, the juvenile court admitted Exhibit 2 under the business record

exception to the rule against hearsay. See Ind. Evidence Rule 803(6) (hearsay will not be

excluded if it is a record of a regularly conducted activity).

       Mother argues that Exhibit 2 did not fall under the business record exception, and

therefore it was inadmissible. Mother further argues that the out-of-court statements

included in the report were also hearsay, and therefore, even if Exhibit 2 fell under the

business record exception, the statements within it constituted inadmissible hearsay within

hearsay.

       In addition to being an out-of-court statement itself, Exhibit 2 contained out-of-court

statements by one of the Logansport Police officers, the doctor who examined the Children

at the hospital, one of Mother’s children, the Children’s father, Dowell, Gentry, and the

                                              11
person who reported the incident on the night of February 18, 2014. However, we need

not address whether Exhibit 2 or the statements contained within it were properly admitted.

Our review shows that much of the information conveyed in these statements was also

conveyed through testimony at the hearing, and to that extent, it was cumulative. See Cole

v. State, 970 N.E.2d 779, 784 (Ind. Ct. App. 2012) (holding that evidence was cumulative

where hearsay conveyed the same information as properly admitted testimony at trial).

When cumulative hearsay evidence is admitted, reversal is not usually warranted. See In

re Paternity of H.R.M., 864 N.E.2d at 450. Although some of the information conveyed in

the statements within Exhibit 2 was not properly admitted elsewhere at trial and cannot be

said to be cumulative, both the juvenile court’s findings and its judgment were supported

by the testimonial evidence at trial, alone. Therefore, Mother’s substantial rights were not

affected, and any error in the admission of Exhibit 2 or the out-of-court statements within

it was harmless. See Camm v. State, 908 N.E.2d 215, 225 (Ind. 2009) (“Harmless error is

error that does not affect the substantial rights of a party . . . .”) (citation omitted).

                                           Conclusion

       Concluding that the testimonial evidence presented at the fact-finding hearing was

sufficient to support the CHINS adjudication and that any error in the admission of Exhibit

2 was harmless, we affirm.

       Affirmed.

BAILEY, J., and BROWN, J., concur.




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