                                                                               FILED
                                                                          May 31 2018, 8:44 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Renee M. Ortega                                            Curtis T. Hill, Jr.
Lake County Juvenile Public Defender’s                     Attorney General of Indiana
Office
Crown Point, Indiana                                       David E. Corey
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of: Ad.M., An.M.,                            May 31, 2018
and S.M. (Minor Children);                                 Court of Appeals Case No.
                                                           45A04-1711-JC-2634
A.M. (Mother),
                                                           Appeal from the Lake Superior
Appellant-Respondent,                                      Court
        v.                                                 The Honorable Thomas P.
                                                           Stefaniak, Jr., Judge
Indiana Department of Child                                The Honorable Jeffrey Miller,
Services,                                                  Magistrate

Appellee-Petitioner.                                       Trial Court Cause Nos.
                                                           45D06-1706-JC-722
                                                           45D06-1706-JC-723
                                                           45D06-1706-JC-724



Najam, Judge.




Court of Appeals of Indiana | Opinion 45A04-1711-JC-2634 | May 31, 2018                            Page 1 of 12
                                            Statement of the Case
[1]   A.M. (“Mother”) appeals the trial court’s adjudication of her three minor

      children, Ad.M., An.M, and S.M. (“Children”), as children in need of services

      (“CHINS”). Mother raises a single issue for our review, which we restate as

      whether the trial court erred when it adjudicated Children to be CHINS.1


[2]   We reverse.


                                      Facts and Procedural History
[3]   Mother is married to P.G. (“Father”). Mother and Father have one child,

      S.M., born October 27, 2015. Mother also has two children from a prior

      relationship: Ad.M., born December 19, 2005, and An.M., born February 24,

      2014. When S.M. was born, she tested positive for marijuana. As a result, the

      Indiana Department of Child Services (“DCS”) began an informal adjustment2

      with Mother, which she successfully completed in 2016.


[4]   Mother owns a trailer on Melton Road in Gary. However, in 2017, Mother

      and the Children were staying in a house on Whitcomb Road because the

      power had been shut off at the trailer. The house belonged to a family friend

      named B.V. Father did not reside at the house with Mother. On June 22,

      2017, Mother and Father got into a physical altercation at the house while the




      1
          The Children’s respective fathers do not participate in this appeal.
      2
        An informal adjustment is “a six[-]month probationary period with DCS in which the family will
      participate in services and . . . upon successful completion, then they are done.” Tr. Vol. II at 20.

      Court of Appeals of Indiana | Opinion 45A04-1711-JC-2634 | May 31, 2018                            Page 2 of 12
      Children were present. Mother and Father believed that the Children were

      asleep. However, Ad.M. was awake and walked in on the altercation. Ad.M.

      saw that Father was holding Mother down. Ad.M. attempted to break up the

      fight, but Father shoved Ad.M. Ad.M. got scared, and he called the police.

      Officers arrived at the home and conducted an investigation. During their

      investigation, officers found six marijuana plants that B.V. admitted belonged

      to him. Officers arrested B.V.


[5]   DCS received a report that there had been a domestic dispute at the house while

      the Children were present and that there were drugs in the house. DCS

      investigator Erin Kujawa was assigned to investigate the report. On Friday,

      June 23, Kujawa attempted to find Mother, but Mother was not at either the

      house or the trailer. Kujawa was finally able to reach Mother by telephone, and

      they set up an initial meeting for Monday, June 26. During that weekend,

      Mother and the Children moved their belongings from the trailer into the

      house.


[6]   On June 26, Kujawa met Mother at the house. Kuajwa noticed that the house

      was “cluttered.” Tr. Vol. II at 25. During the meeting, Kujawa spoke with

      Mother about the marijuana plants that officers had found, and she learned that

      Mother knew that the plants had been there. Kujawa also noticed that Ad.M.

      had a bruise on his face. Mother stated that Ad.M. was bruised when he

      tripped over An.M.’s foot while at the doctor’s office. Kujawa asked Mother to

      take a drug test, but mother refused.



      Court of Appeals of Indiana | Opinion 45A04-1711-JC-2634 | May 31, 2018   Page 3 of 12
[7]   On June 29, Janet Taylor, a permanency case manager with DCS, visited

      Mother at the house. Taylor observed that the house was in “terrible

      condition.” Id. at 34. She noticed that the water from a bathroom sink was

      brown, the kitchen faucet did not work, there was a “minimal amount of food,”

      and the carpet was “extremely dirty. It felt sticky under your feet.” Id. at 36.

      She also saw that S.M.’s bed was right in front of a television. Taylor thought

      that that was dangerous because S.M. could “easily pull the television down on

      herself.” Id. at 35. An.M. and Ad.M. slept on air mattresses on the floor, but

      the air mattresses were not blown up. Taylor also noticed that the toilet was

      not operable and there was a “very bad odor” coming from the toilet. Id. at 37.

      Taylor observed that there was no water in the home, and there was very little

      food. Mother told Taylor that she went to the store daily to buy food and

      water, but there was no drinking water at the time of Taylor’s visit.


[8]   Based on her observations, Taylor told Mother that the house was not suitable

      for children. Mother called Father and arranged for her and the Children to

      stay with Father at Father’s mother’s home. Taylor visited that home and

      found it to be appropriate. As such, Mother and the Children moved into

      Father’s mother’s home with Father.


[9]   That same day, DCS filed petitions alleging that the Children were CHINS due

      to the incident of domestic violence, the conditions of B.V.’s house, Mother’s

      unstable housing, Mother’s refusal to take a drug test, and the presence of drugs

      in B.V.’s house. The Children remained in Mother’s care.



      Court of Appeals of Indiana | Opinion 45A04-1711-JC-2634 | May 31, 2018   Page 4 of 12
[10]   The next day, Taylor again visited the family to put a safety plan into place due

       to the incident of domestic violence. When Taylor mentioned the safety plan,

       Mother “cursed [her] out.” Id. at 40. Taylor told Mother about community

       resources that were available to Mother, including food stamps and WIC, but

       Mother said they “didn’t need those things” because Mother is an attorney. Id.


[11]   About one week later, Mother called Taylor to inform Taylor that Mother and

       the Children had moved out of Father’s mother’s home, were currently staying

       at a hotel, and were going to move back into the trailer. The next day, which

       was a Friday, Taylor went to the trailer and observed that it was “extremely

       cluttered.” Id. at 43. Taylor informed Mother that she would return on

       Monday and that if the house was not clean, then the Children could not stay

       there. When Taylor returned to the trailer on Monday, it was clean. Also

       during her investigation, Taylor spoke with the Children and learned that the

       Children had “seen [marijuana] in the home[.]”3 Id. at 60. And, at some point,

       Mother filed for a protective order against Father.


[12]   B.V. was also present at the trailer when Taylor arrived on that Monday.

       Taylor learned that B.V. watches the Children for Mother when Mother is at

       work. Because officers had arrested B.V. and because B.V. had admitted to

       using marijuana, Taylor requested that B.V. submit to a background check.




       3
         It is unclear from the record when Taylor interviewed the Children or in which home the Children had
       seen the marijuana. Construing the record in the light most favorable to the trial court’s judgment, as we
       must, we conclude that this sentence must refer to Mother’s home at the time of the evidentiary hearing on
       the CHINS petition.

       Court of Appeals of Indiana | Opinion 45A04-1711-JC-2634 | May 31, 2018                         Page 5 of 12
       B.V. failed to comply. About ten days after her inspection of the trailer, Taylor

       obtained a hair follicle from Mother in order to run a drug test. Mother tested

       positive for marijuana.4 Taylor also tested Mother for drugs a second time

       about a month later, on August 15, and Mother again tested positive for

       marijuana.


[13]   On August 31, the trial court held a hearing on the CHINS petition. During the

       hearing, the court authorized the following services for Mother: clinical

       assessment, home-based case work services, parenting assessment, domestic

       violence services, substance-abuse assessment, and hair follicle testing. The

       trial court then held a fact-finding hearing on October 24. Thereafter, the trial

       court adjudicated the Children to be CHINS. This appeal ensued.


                                         Discussion and Decision
[14]   Mother contends that DCS failed to present sufficient evidence to demonstrate

       that the Children are CHINS. Our Supreme Court has set out our standard of

       review.


                 A CHINS proceeding is a civil action; thus, “the State must
                 prove by a preponderance of the evidence that a child is a
                 CHINS as defined by the juvenile code.” [N.L. v. Ind. Dep’t. of
                 Child Servs. (In re N.E.)], 919 N.E.2d 102, 105 (Ind. 2010). We
                 neither reweigh the evidence nor judge the credibility of the
                 witnesses. Egly v. Blackford County Dep’t of Pub. Welfare, 592
                 N.E.2d 1232, 1235 (Ind. 1992). We consider only the evidence



       4
           Mother also tested positive for amphetamines. However, Mother has a prescription for Adderall.


       Court of Appeals of Indiana | Opinion 45A04-1711-JC-2634 | May 31, 2018                         Page 6 of 12
               that supports the trial court’s decision and reasonable inferences
               drawn therefrom. Id. We reverse only upon a showing that the
               decision of the trial court was clearly erroneous. Id.


       S.S. v. Ind. Dep’t. of Child Servs. (In re K.D.), 962 N.E.2d 1249, 1253 (Ind. 2012).

       The court did not enter specific findings of fact, and neither party requested

       them. As such, we review the 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.’” J.B. v. Ind. Dep’t. of Child Servs. (In re S.D.),

       2 N.E.3d 1283, 1287 (Ind. 2014) (quoting Yanoff v. Muncy, 688 N.E.2d 1259,

       1262 (Ind. 1997)).


[15]   DCS alleged that the Children were CHINS pursuant to Indiana Code Section

       31-34-1-1, which provides that a child is a child in need of services if, before the

       child becomes eighteen 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.


[16]   Our Supreme Court has interpreted that statute to require “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 at 1287

       Court of Appeals of Indiana | Opinion 45A04-1711-JC-2634 | May 31, 2018      Page 7 of 12
       (emphasis added). “A CHINS adjudication focuses on the condition of the

       child.” In re N.E., 919 N.E.2d at 105. And, when determining whether a child

       is a CHINS under Section 31-34-1-1, the juvenile court “should consider the

       family’s condition not just when the case was filed, but also when it is heard.”

       In re S.D., 2 N.E.3d at 1290.


[17]   Here, Mother contends that the trial court erred when it adjudicated the

       Children to be CHINS because there is insufficient evidence that Children were

       seriously endangered by Mother’s actions or inactions.5 We must agree.


[18]   On appeal, DCS first contends that the Children are CHINS because of

       Mother’s marijuana use and the presence of marijuana in Mother’s home. In

       support of that contention, DCS presented evidence that Mother had tested

       positive for marijuana on two separate occasions after DCS had filed the

       CHINS petitions, and Taylor testified that Mother is a “chronic” user. Tr. Vol.

       II at 47. In addition, Taylor testified that the Children had told her that they

       had seen marijuana in the home.6


[19]   We must conclude that evidence of one parent’s use of marijuana and evidence

       that marijuana has been found in the family home, without more, does not



       5
         During the fact-finding hearing, DCS presented evidence regarding Mother’s housing situation. However,
       on appeal, DCS does not allege that the Children are CHINS because of Mother’s living arrangements. And
       the evidence presented shows that, while Mother moved several times in a matter of only a few weeks, she
       now resides with the Children at the trailer, the trailer was in “decent order” when Taylor visited on October
       6, and Mother still resided there at the time of the fact-finding hearing. Tr. Vol. II at 54. Additionally,
       during the dispositional hearing, the trial court found that Mother’s housing is “fine.” Id. at 85.
       6
           DCS did not present specific evidence of when or how often the Children had seen marijuana in the home.


       Court of Appeals of Indiana | Opinion 45A04-1711-JC-2634 | May 31, 2018                           Page 8 of 12
       demonstrate that a child has been seriously endangered for purposes of Indiana

       Code Section 31-34-1-1. Indeed, DCS did not present any evidence that either

       Mother’s drug use or the presence of marijuana in the home have seriously

       endangered the Children. Rather, when asked to describe how Mother’s

       marijuana use has impacted the Children, Taylor testified that she “really can’t

       see the way that it has impacted them.” Id. at 56. Further, DCS did not present

       any evidence that Mother used drugs while the Children were present in the

       home or while she had care of the Children.


[20]   This court has held that children were not CHINS despite Mother’s history of

       sporadic marijuana use because there was no evidence that, at any point and

       time, any of the children were endangered, that the parents had ever used drugs

       in the presence of the children, or that there was ever an occasion in which the

       parents were impaired by substance abuse while the children were in their care.

       See A.M. v. Ind. Dep’t. of Child Servs. (In re S.M.), 45 N.E.3d 1252, 1255-56 (Ind.

       Ct. App. 2015).


[21]   Again, it is well-settled that a “CHINS adjudication focuses on the condition of

       the child.” In re N.E., 919 N.E.2d at 105. And this court has also held that a

       mother’s ingestion of marijuana while pregnant and the presence of marijuana

       in the meconium of the child at birth is not sufficient evidence in itself to

       demonstrate that a child is seriously impaired or seriously endangered. See In re

       S.M., 45 N.E.3d at 1255-56. Following In re S.M., without any specific

       evidence that the marijuana itself or Mother’s use of it presented a serious



       Court of Appeals of Indiana | Opinion 45A04-1711-JC-2634 | May 31, 2018    Page 9 of 12
       danger to the Children, we must conclude that the DCS failed to present

       sufficient evidence to support the CHINS determination.7


[22]   Still, DCS also alleged that the Children were CHINS because of the single

       incident of domestic violence between Mother and Father, which Ad.M. had

       witnessed. Specifically, DCS asserts that the Children are CHINS because

       Mother moved in with Father approximately one week after the incident,

       Mother has not filed for a dissolution of her marriage to Father, Mother did not

       file for the protective order right away, Ad.M. had expressed concerns to Taylor

       about the domestic violence, and Mother has not received counseling or taken

       Ad.M. to be evaluated by a therapist. To support its contention, DCS relies on

       In re N.E., 919 N.E.2d at 106, in which the Indiana Supreme Court determined

       that the “ongoing domestic violence between [mother] and the alleged father of

       her youngest child” and the “several incidents of domestic violence against

       Mother in the presence of her children” supported the CHINS adjudication.


[23]   However, the domestic violence here was neither “ongoing” nor over “several

       incidents,” and we have held that a child is not a CHINS after witnessing a

       domestic-violence incident when the mother quit seeing her abuser and had

       filed for a protective order against him. See M.C. v. Marion Cty. Dep’t. of Child




       7
         To the extent that DCS alleged at the fact-finding hearing that the Children are CHINS because B.V., the
       primary caretaker of the Children when Mother is at work, was arrested for possession of marijuana and has
       admitted to a history of using marijuana but has failed to submit to a background check, DCS similarly
       presented no evidence that B.V. had ever used marijuana while the Children were in his care or in the
       presence of the Children. Further, DCS did not present any evidence that B.V. has watched the Children at
       his house since Mother and the Children moved out.

       Court of Appeals of Indiana | Opinion 45A04-1711-JC-2634 | May 31, 2018                       Page 10 of 12
       Servs. (In re B.N.), 969 N.E.2d 1021, 1026 (Ind. Ct. App. 2012). Similarly, the

       evidence in the instant case demonstrates that there was one incident of

       domestic violence between Mother and Father, that Mother and the Children

       have since moved away from Father, and that Mother has filed for a protective

       order against him. Accordingly, DCS has not presented sufficient evidence to

       show that the single incident of domestic violence seriously endangered the

       Children.


[24]   Where the termination of parental rights is at stake, the trial court has

       “discretion to weigh a parent’s prior history more heavily than efforts made only

       shortly before termination.” E.M. v. Ind. Dep’t. of Child Servs. (In re E.M.), 4

       N.E.3d 636, 643 (Ind. 2014) (emphasis added). However, when determining

       whether a Child is a CHINS under Section 31-34-1-1, as is the case here, courts

       “‘should consider the family’s condition not just when the case was filed, but

       also when it is heard.’” Gr. J. v. Ind. Dep’t. of Child Servs. (In re D.J.), 68 N.E.3d

       574, 580 (Ind. 2017) (quoting In re S.D. at 1290 (citation omitted)). “Doing so

       avoids punishing parents for past mistakes when they have already corrected

       them.” Id. at 581. Thus, in a CHINS case, we give special consideration to a

       family’s current conditions.


[25]   Here, while the facts indicate that there were problems with Mother’s living

       arrangements and with domestic violence at the time DCS filed the CHINS

       petition, the facts also demonstrate that Mother has remedied the housing

       situation, and she has moved away from Father and filed for a protective order

       against him. And even though the Children have seen marijuana and Mother

       Court of Appeals of Indiana | Opinion 45A04-1711-JC-2634 | May 31, 2018      Page 11 of 12
       continues to use marijuana, DCS presented no evidence that either the

       Children’s observation of the marijuana or Mother’s use of it has endangered

       the Children or impacted them in any way. In sum, DCS did not meet its

       burden to demonstrate that the Mother’s actions or inactions have impacted,

       much less seriously endangered, the Children. See In re S.D., 2 N.E.3d at 1287.


[26]   We acknowledge that the “CHINS statutes do not require the juvenile court

       and DCS to wait until a child is physically or emotionally harmed to

       intervene[.]” Appellee’s Br. at 18. But the CHINS finding must be based on

       facts. And it was DCS’s burden to prove that Mother’s actions or inactions

       have seriously endangered the Children. See In re N.E., 919 N.E.2d at 105.

       Here, DCS did not present any evidence that the Children’s physical or mental

       conditions were seriously impaired or endangered as a result of Mother’s

       actions or inactions. See In re B.N., 969 N.E.2d at 1026. We therefore hold that

       the trial court erred when it found the Children to be CHINS, and we reverse

       the trial court’s judgment.


[27]   Reversed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 45A04-1711-JC-2634 | May 31, 2018   Page 12 of 12
