MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                              Dec 29 2016, 9:37 am
regarded as precedent or cited before any
                                                                       CLERK
court except for the purpose of establishing                       Indiana Supreme Court
                                                                      Court of Appeals
the defense of res judicata, collateral                                 and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Steven J. Halbert                                       Gregory F. Zoeller
Carmel, Indiana                                         Attorney General of Indiana

                                                        Robert J. Henke
                                                        Deputy Attorney General

                                                        James D. Boyer
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA
IN THE MATTER OF C.T.,                                  December 29, 2016
Child in Need of Services,                              Court of Appeals Case No.
                                                        49A04-1607-JC-1667
N.T.,
                                                        Appeal from the Marion Superior
Appellant-Respondent,                                   Court
        v.                                              The Honorable Marilyn A.
                                                        Moores, Judge
Indiana Department of Child
                                                        The Honorable Jennifer Hubartt,
Services,
                                                        Magistrate
Appellee-Petitioner.
                                                        Trial Court Cause No.
                                                        49D09-1602-JC-459




Court of Appeals of Indiana | Memorandum Decision 49A04-1607-JC-1667 | December 29, 2016   Page 1 of 8
      Najam, Judge.


                                       Statement of the Case
[1]   N.T. (“Mother”) appeals the juvenile court’s adjudication of her minor child

      C.T. (“Child”) as a Child in Need of Services (“CHINS”). Mother raises a

      single issue for our review, namely, whether the juvenile court’s adjudication of

      Child as a CHINS is clearly erroneous. We affirm.


                                 Facts and Procedural History
[2]   The facts as found by the juvenile court, following a fact-finding hearing, are

      not in dispute:

              5. On 2/4/16, the Marion County Sheriff’s Department
              (hereinafter MCSD) served a narcotics warrant at [Mother’s]
              home . . . . MCSD received a tip that the individual named in
              the warrant, [Mr. S.,] was in the home. . . . [Mother] lived in the
              home with her son, [Child].


              6. Upon MCSD[’s] arrival [at] the home, [Mother] answered the
              door and advised MCSD that [Mr. S.] was not at the home.
              [Mother] stepped outside to speak to MCSD on the porch.


              7. Shortly thereafter, a male stepped outside and advised MCSD
              that [Mr. S.] was in fact inside the home.


              8. MCSD then made entry [in]to the home. . . .


              9. Upon entry . . . MCSD observed [Child] at the top of/coming
              down the stairs of the home from the bedroom area.


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        10. . . . MCSD found [Mr. S.] in an upstairs bedroom. Also
        found in the bedroom were what Officer [James] Russo, based
        up[on] his training and experience, believed to be
        methamphetamine, heroin, and drug paraphernalia.


                                               ***


        15. [Mother] advised Officer Russo and [Family Case Manager,
        or “FCM” Paul] Paris that [Mr. S.] was renting a room at the
        home and she was unaware that he had drugs in the room he was
        renting. [Mother] later stated to Officer Russo that she has
        known [Mr. S.] for years.


        16. [Child] stated to FCM Paris that he loved [Mr. S.] and did
        not want him to be taken away from the home.


                                               ***


        21. On 2/8/16, immediately prior to the Initial
        Hearing . . . [M]other provided a negative drug screen to [the
        Indiana Department of Child Services, or “DCS”]. . . .


        22. Two days after the Initial Hearing, on 2/10/16, [M]other
        provided a drug screen to FCM Karon Donaldson . . . which was
        positive for THC (marijuana) and for buprenorphine (Suboxone).
        [Mother] is not prescribed Suboxone.


                                               ***


        24. On 3/16/16, FCM Donaldson’s Supervisor, Dorothy
        Winder, offered to provide [Mother] with a drug screen at the
        Marion County Superior Court, Juvenile Division. [Mother]
        failed to submit to the screen. [Mother] advised Ms. Winder that


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              she could not urinate and then advised Ms. Winder that she had
              to leave the Court building due to her transportation leaving.


                                                     ***


              26. [Mother] has [an] extensive history with DCS, including a
              CHINS case involving [Child] which involved [Mother’s] drug
              use. That case was open from September[] 2014 until
              September[] 2015[,] at which time [Child] was reunified with
              [Mother].


      Appellant’s App. Vol. II at 92-94. In light of those findings, the court

      concluded that Child’s physical or mental condition is seriously impaired or

      endangered “as a result of the home environment provided by [Mother];” that

      Child “is in need of [a] safe and stable home environment, free from drug use

      by his [M]other;” and that “the coercive intervention of the Court is required

      because [Mother] has not remained sober and drug free on her own despite

      prior substance abuse services provided within the past 6 months and prior and

      ongoing involvement by DCS and the Court.” Id. at 94. This appeal ensued.


                                    Discussion and Decision
[3]   Mother appeals the juvenile court’s adjudication of Child as a CHINS. As we

      have explained:


              Indiana Code Section 31-34-1-1 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
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        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.” N.L. v. Ind. Dep’t of Child
        Servs. (In re N.E.), 919 N.E.2d 102, 105 (Ind. 2010). “[A] CHINS
        adjudication does not establish culpability on the part of a
        particular parent.” Id. “Said differently, the purpose of a CHINS
        adjudication is to protect children, not punish parents.” Id. at
        106.


        The DCS has the burden of proving by a preponderance of the
        evidence that a child is a CHINS. I.C. § 31-34-12-3; Davis v.
        Marion Cnty. Dep’t of Child Servs. (In re M.W.), 869 N.E.2d 1267,
        1270 (Ind. Ct. App. 2007). When reviewing the sufficiency of the
        evidence to support a CHINS adjudication, we consider only the
        evidence favorable to the judgment and the reasonable inferences
        raised by that evidence. In re M.W., 869 N.E.2d at 1270. This
        court will not reweigh evidence or judge witnesses’ credibility.
        Id. A CHINS adjudication “may not be based solely on
        conditions that no longer exist,” but the court should “consider
        the [family’s] situation at the time the case is heard by the court.”
        S.S. v. Ind. Dep’t of Child Servs. (In re R.S.), 987 N.E.2d 155, 159
        (Ind. Ct. App. 2013).


        Moreover, the trial court entered findings of fact and conclusions
        thereon pursuant to Indiana Trial Rule 52(A). We may not set
        aside the findings or judgment unless they are clearly erroneous.
        Ind. Trial Rule 52(A); Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d
        1206, 1210 (Ind. 2000). In our review, we first consider whether
        the evidence supports the factual findings. Menard, 726 N.E.2d
        at 1210. Second, we consider whether the findings support the
        judgment. Id. “Findings are clearly erroneous only when the
        record contains no facts to support them either directly or by
        inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A
        judgment is clearly erroneous if it relies on an incorrect legal

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              standard. Menard, 726 N.E.2d at 1210. We give due regard to
              the trial court’s ability to assess the credibility of witnesses. T.R.
              52(A). While we defer substantially to findings of fact, we do not
              do so to conclusions of law. Menard, 726 N.E.2d at 1210. We do
              not reweigh the evidence; rather we consider the evidence most
              favorable to the judgment with all reasonable inferences drawn in
              favor of the judgment. Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind.
              1999).


      E.B. v. Ind. Dep’t of Child Servs. (In re Des. B.), 2 N.E.3d 828, 835-36 (Ind. Ct.

      App. 2014).


[4]   According to Mother, the DCS failed to demonstrate that her drug use was a

      serious endangerment to Child:

              in this case the only allegation was that the parent needed
              substance abuse counseling or treatment. There was evidence
              that drug paraphernalia was found in the room of a tenant
              renting a room in [Mother’s] house and, since the CHINS was
              filed, [Mother] has one positive test for drugs. However[,] the
              evidence also showed that [Mother] is in drug treatment and her
              drug tests will be supplied to the DCS. There was no evidence
              that drugs have ever been used in the presence of her son by
              [Mother], or anyone, or that drug use endangered her son. To
              the extent that [Mother] has a problem she is already in a drug
              treatment program.


              . . . The DCS and the juvenile court did not even attempt to
              specify any specific threat or danger to [Child]. The DCS did not
              introduce any evidence to show that [Mother] has not always
              provided for her son’s needs . . . . The DCS did not call any
              expert witnesses who offered testimony that drug use by a parent
              is a per se threat to a child. Drug use in the presence of the
              children, or to an extent that it prevents a parent from providing

      Court of Appeals of Indiana | Memorandum Decision 49A04-1607-JC-1667 | December 29, 2016   Page 6 of 8
              for the child’s needs, would be a concern, but no evidence of that
              was present in [Mother’s] case.


      Appellant’s Br. at 10-11.


[5]   We cannot agree with Mother’s assessment of the record. Mother disregards

      the following evidence favorable to the juvenile court’s judgment:


           Mother falsely reported to MCSD that Mr. S. was not present in the
            home when they attempted to serve the warrant on him;
           While Mother informed MCSD that she was renting a room to Mr. S.,
            Child’s subsequent comments that he loved Mr. S. and that he did not
            want Mr. S. to be removed from the home, as well as Mother’s attempt
            to hide Mr. S. from MCSD, demonstrate a more substantial relationship;
           Upon entering the home, MCSD officers observed Child coming from an
            upstairs bedroom, and they then located Mr. S., drugs, and drug
            paraphernalia in an upstairs bedroom.
           Mother failed one drug screen and refused to take a second;
           Mother has a history of substance abuse and Child had previously been
            adjudicated a CHINS because of her prior substance abuse.

[6]   We agree with DCS that the evidence most favorable to the trial court’s

      judgment supports its conclusion that Mother’s behavior seriously endangered

      Child. The record demonstrates that Child had access to drugs and/or drug

      paraphernalia. The record further demonstrates that Mother has an extensive

      history and an ongoing problem with substance abuse. Her use of illicit

      substances is not, as Mother suggests, a one-time occurrence. Indeed, Child has

      previously been adjudicated a CHINS based on Mother’s substance abuse, yet

      at the time of the instant adjudication Mother continued to fail drug tests. In

      light of the evidence most favorable to the juvenile court’s judgment, we cannot

      Court of Appeals of Indiana | Memorandum Decision 49A04-1607-JC-1667 | December 29, 2016   Page 7 of 8
      say that the court’s adjudication of Child as a CHINS is clearly erroneous.

      Accordingly, we affirm the juvenile court’s judgment.


[7]   Affirmed.


      Bailey, J., and May, J., concur.




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