FOR PUBLICATION
ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

AMY KAROZOS                                    PATRICK M. RHODES
Greenwood, Indiana                             Indiana Department of Child Services
                                               Indianapolis, Indiana

                                               ROBERT J. HENKE
                                               DCS Central Administration
                                               Indianapolis, Indiana

                                                                            FILED
                                IN THE                                  Jun 13 2012, 9:17 am

                      COURT OF APPEALS OF INDIANA
                                                                                CLERK
                                                                              of the supreme court,
                                                                              court of appeals and
                                                                                     tax court



IN RE THE MATTER OF:                           )
B.N. AND H.C.                                  )
CHILDREN IN NEED OF SERVICES                   )
                                               )
M.C. (Mother)                                  )
                                               )
      Appellant-Respondent,                    )
                                               )
                vs.                            )    No. 49A02-1110-JC-1025
                                               )
MARION COUNTY DEPARTMENT OF                    )
CHILD SERVICES,                                )
                                               )
      Appellee- Petitioner,                    )
                                               )
and                                            )
                                               )
CHILD ADVOCATES, INC;                          )
                                               )
      Appellee-Guardian Ad Litem.              )
                                               )


                    APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Diana Burleson, Magistrate
                       The Honorable Gary Chavers, Judge Pro Tempore
                 Cause Nos. 49D09-1105-JC-021271 & 49D09-1105-JC-021272
                                     June 13, 2012

                           OPINION - FOR PUBLICATION

VAIDIK, Judge

                                    Case Summary

      M.C. (“Mother”) appeals from the juvenile court’s determination that her son and

daughter are Children in Need of Services (“CHINS”).          Mother contends that the

evidence is insufficient to support the juvenile court’s conclusion that her children’s

physical and mental health were seriously impaired or endangered because of her

inability, refusal, or neglect to supply them with necessary food, clothing, shelter,

medical care, education, or supervision. We conclude that the evidence in this case is

indeed insufficient to support the juvenile court’s determination that B.N. and C.H. are

CHINS, and we therefore reverse.

                            Facts and Procedural History

      On May 26, 2011, police stopped Mother in the parking lot of a gas station. When

police searched her car, they found oxycodone, Xanax, and marijuana. Her seven-year-

old son B.N. was in the back seat of the vehicle. Police also discovered that Mother’s

driver’s license was suspended. Mother was taken into custody by police and charged

with possession of a controlled substance (oxycodone) and possession of marijuana. The

Department of Children and Family Services (“DCS”) took custody of B.N. and Mother’s

three-year-old daughter, H.C.

      On May 31, DCS filed a petition alleging that B.N. and H.C. were CHINS because

Mother had failed to provide them with a “safe and appropriate living environment free

from drugs.” Appellant’s App. p. 29. Specifically, the petition alleged that the children
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were CHINS under Indiana Code section 31-34-1-1, which provides that a child is a

CHINS if “[t]he 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.”

       Because Mother wished to have B.N. and C.H. returned to her care, she

voluntarily submitted to four drug screens in June and July. At each drug screen, Mother

provided DCS staff with current prescriptions for oxycodone and Xanax. Mother tested

negative at each drug screen, and B.N. and H.C. were returned to her care in mid-July.

After their return, Mother voluntarily submitted to a fifth drug screen, which was also

negative.

       A fact-finding hearing was held on October 17.1 At the hearing, DCS introduced

evidence of Mother’s May 26 arrest as well as DCS’s previous involvement with Mother

and B.N. four years earlier—in 2007, DCS had substantiated claims of domestic violence

by the children’s father, William Neighbors, against Mother.

       Michelle Jeffries, a DCS family case manager, testified to her involvement with

Mother since her May 26 arrest. FCM Jeffries informed the court of Mother’s voluntary,

negative drug screens. Tr. p. 40. She also told the court that Mother had voluntarily

participated in home-based services, though at the time of the hearing she was no longer

doing so. Jeffries also said that DCS made a referral for a substance-abuse assessment

for Mother and mental-health assessments for the children; however, those assessments


       1
         At that time, Mother had been charged with possession of a controlled substance and possession
of marijuana but had not been convicted of any charges.
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had not been completed. Jeffries also stated that Mother had recently been ordered to

undergo random drug screenings, but Mother, who did not have a valid driver’s license,

had not reported to these screenings. Jeffries also told the court that Mother, B.N., and

C.H. were living in a house that Mother was renting and that Mother was employed.

Jeffries also said that to her knowledge, Mother no longer saw Neighbors. Id.

      DCS summarized their concerns regarding Mother as follows: Mother had been

arrested and charged with possession of a controlled substance (oxycodone) and

possession of marijuana and had admitted smoking marijuana in the past, Mother had not

completed recent random drug screens, and visits to Mother’s current home, which she

rented, indicated that other individuals may have been staying there.

      Mother presented the court with a prescription for oxycodone, which was valid at

the time of her arrest. Though she did not produce a prescription for Xanax, Mother

testified that she had been taking Xanax and oxycodone with valid prescriptions since

2007. Id. at 65. Mother explained that the medication helped her cope with anxiety after

the 2007 domestic-violence incident with Neighbors. She also confirmed that she had a

protective order against Neighbors and no longer saw him. Id. at 49.

      That same day, the juvenile court entered an order finding B.N. and C.H. to be

CHINS. The order included the following factual findings:

      1. [H.C] is a minor whose date of birth [is] December 5, 2007.
      2. [B.N.] is a minor whose date of birth is July 31, 2004.
      3. Their Mother is [M.C.].
      4. Their Father is [Mr. Neighbors].
      5. On May 26, 2011[,] [Mother] was arrested in her car for possession of a
      controlled substance, oxycodone, and possession of marijuana. [B.N.] was
      in the car with her when she was arrested.


                                            4
      6. [Mother] admitted that she used marijuana 2 times a day, but that she had
      a valid prescription for the oxycodone.
      7. She also knew that at the time of her arrest, her driver’s license was
      suspended.
      8. [Mother] has a prior history with DCS regarding domestic violence
      between [Mother] and Mr. Neighbors. In 2007, an informal adjustment was
      completed by [Mother].

                                        *****

      11. Since the beginning of this case the DCS FCM [Jeffries] has asked for
      but has not received the following: proof of a valid prescription for
      oxycodone (was presented in court at the fact finding); proof of a valid
      prescription for Xanax; proof of employment, a copy of her lease, and proof
      that [H.C.] is enrolled in Head Start.
      12. [Mother] did not have her children complete a mental health assessment
      because she was confused about the referral.
      13. [Mother] participated voluntarily with home based before the children
      were returned home, but after the children were moved back home she was
      confused about meeting with them.

Appellant’s App. p. 20-21.

      Mother now appeals.
                               Discussion and Decision

      Mother contends that the evidence is insufficient to support the juvenile court’s

finding that B.N. and C.H. are CHINS.

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

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

Ind. Code § 31-34-12-3; In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). Upon review of a

juvenile court’s CHINS determination, we consider only the evidence most favorable to

the judgment and the reasonable inferences therefrom. In re T.S., 881 N.E.2d 1110, 1112

(Ind. Ct. App. 2008). We neither reweigh the evidence nor reassess the credibility of the

witnesses. Id. Here, the juvenile court made findings of fact and conclusions of law in


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adjudicating the children CHINS. When a juvenile court enters specific findings and

conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty.

Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine

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

findings support the judgment. Id. We will set aside the juvenile court’s judgment only

if it is clearly erroneous. Id.

       The juvenile court determined that the children were CHINS according to 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:
                      (A) the child is not receiving; and
                      (B) is unlikely to be provided or accepted without the
                      coercive intervention of the court.

       In finding that B.N. and C.H. were CHINS under this section, the juvenile court

relied on the following facts: Mother was arrested and charged with possession of a

controlled substance (oxycodone) and possession of marijuana, she admitted using

marijuana in the past, her driver’s license was suspended, she had previous involvement

with DCS regarding domestic violence with the children’s father, she had not provided all

documentation requested by DCS, and she had not completed the referrals made by DCS

or the services she had volunteered for.




                                              6
       We first examine whether the juvenile court’s findings were supported by the

evidence. Specifically, Mother argues that Finding 11 is not supported by the evidence.

The finding reads:

       Since the beginning of this case the DCS FCM [Jeffries] has asked for but
       has not received the following: proof of a valid prescription for oxycodone
       (was presented in court at the fact finding); proof of a valid prescription for
       Xanax; proof of employment, a copy of her lease, and proof that [H.C.] is
       enrolled in Head Start.

Appellant’s App. p. 20. Mother directs our attention to the testimony of FCM Jeffries.

Jeffries testified that at each drug screen, Mother presented a valid prescription for both

oxycodone and Xanax. Jeffries stated that Mother had not given her documentation

showing that Mother had a valid prescription for oxycodone at the time she was arrested.

However, Mother presented this documentation to the court on October 17. Moreover,

Jeffries clearly stated that Mother had provided her a letter showing that she was

employed. See Tr. p. 41. From this, we conclude that within Finding 11, the juvenile

court’s findings regarding oxycodone and proof of employment are not supported by the

evidence.

       We must next determine whether the remaining findings support the court’s

judgment. We conclude that they do not. The first prong of Section 31-34-1-1 requires

DCS to show that a 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. The evidence presented at fact-finding does not meet this




                                             7
burden.2 Although Mother was charged with possession of marijuana and admitted using

marijuana in the past, she tested negative at each drug screening. Further, Mother

presented the court with a prescription for oxycodone, which was valid at the time she

was arrested, and Mother was not charged with any crime relating to her possession of

Xanax.

        The other facts relied upon by the juvenile court also fail to establish that the

children were impaired or endangered.               With respect to Mother’s participation in

services, Mother volunteered to participate in services after her arrest; these were not

mandatory services required by DCS. To that end, the juvenile court did not find that

Mother refused to participate in services, only that she was confused about what

participation was required of her.3 Mother’s previous involvement with DCS stemmed

from a domestic-violence incident four years ago in which the children’s father, William

Neighbors, was violent toward Mother. Jeffries testified that to her knowledge, Mother

no longer saw Neighbors. Mother confirmed this and further testified that she had a

protective order against Neighbors.            Finally, there was no evidence that Mother’s

suspended driver’s license had any effect on the condition of the children.

        In sum, there was simply no evidence that the children’s physical or mental

condition was seriously impaired or seriously endangered as a result of the inability,

refusal, or neglect of Mother to supply the children with necessary food, clothing, shelter,

        2
          DCS asks that we consider evidence presented at pretrial hearings and included in the juvenile
court’s dispositional order. We decline to do so. We consider only the evidence presented at fact-finding
and relied upon by the juvenile court in determining that B.N. and C.H. are CHINS.
        3
          Mother’s participation in services, to the extent it would be relevant, would go to whether
coercive intervention of the court was needed. We need not reach the second prong of Indiana Code
section 31-34-1-1, however, as we conclude that DCS failed to prove the first prong of the section.
                                                   8
medical care, education, or supervision. We therefore conclude that the juvenile court’s

determination that the children are CHINS was clearly erroneous.

      Reversed.

CRONE, J., and BRADFORD, J., concur.




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