                                                                            FILED
                                                                      Apr 01 2019, 6:06 am

                                                                            CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Steven Knecht                                               Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C.                                  Attorney General of Indiana
Lafayette, Indiana
                                                            Natalie F. Weiss
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

In the Matter of A.R., A.S., L.S.,                          April 1, 2019
and J.O., Children Alleged to be                            Court of Appeals Case No.
Children in Need of Services;                               18A-JC-2523
M.O. (Mother),                                              Appeal from the Tippecanoe
                                                            Superior Court
Appellant-Respondent,
                                                            The Honorable Faith A. Graham,
         v.                                                 Judge
                                                            The Honorable Tricia L.
Indiana Department of Child                                 Thompson, Juvenile Magistrate
Services,                                                   Trial Court Cause Nos.
                                                            79D03-1806-JC-173
Appellee-Petitioner.
                                                            79D03-1806-JC-174
                                                            79D03-1806-JC-175
                                                            79D03-1806-JC-176



Najam, Judge.




Court of Appeals of Indiana | Opinion 18A-JC-2523 | April 1, 2019                              Page 1 of 13
                                            Statement of the Case
[1]   M.O. (“Mother”) appeals the trial court’s adjudication of her four minor

      children, A.R., A.S., L.S., and J.O. (the “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 the Children to be

      CHINS.1 We conclude that the evidence does not support the CHINS

      determination that the coercive intervention of the court is required to protect

      the Children. Accordingly, we reverse.


                                      Facts and Procedural History
[2]   In June 2018, Mother was pregnant and living at her parents’ house. At that

      time, Mother had three children: A.R., born February 18, 2007; and A.S. and

      L.S., born March 9, 2015. On June 15, Mother’s parents informed her that she

      could no longer live at their house. That same day, Mother checked into a

      hospital and gave birth to her fourth child, J.O. Shortly after J.O.’s birth, the

      hospital tested J.O.’s cord blood, which tested positive for methamphetamine.


[3]   While Mother was still at the hospital, Indiana Department of Child Services

      (“DCS”) Family Case Manager (“FCM”) Andrea Woodard spoke with Mother

      about Mother’s living situation. Mother admitted that she was not sure where

      she was going to live when she left the hospital. FCM Woodard also asked

      Mother about the presence of methamphetamine in J.O.’s cord blood. Mother



      1
          The Children’s respective fathers do not participate in this appeal.


      Court of Appeals of Indiana | Opinion 18A-JC-2523 | April 1, 2019          Page 2 of 13
      told FCM Woodard that she did not know how methamphetamine got into

      J.O.’s system, but that it “could’ve gotten there from being around a friend”

      who was using methamphetamine for approximately thirty minutes. Tr. Vol. II

      at 12. After her conversation with Mother, FCM Woodward determined that

      an emergency existed and removed the Children from Mother’s care “on the

      spot.” Id.


[4]   On June 20, DCS filed a petition alleging that the Children were CHINS.

      Specifically, DCS alleged that the Children were CHINS due to Mother’s

      homelessness. DCS additionally alleged the J.O. was a CHINS because she

      had been born with methamphetamine in her system. The next day, Mother,

      A.R., A.S., and L.S. submitted to a hair follicle test. Mother, A.S., and L.S. all

      tested positive for methamphetamine, with Mother’s level being “fatal.” Id. at

      98.


[5]   The trial court held an initial hearing on the CHINS petition. During that

      hearing, the trial court ordered Mother to submit to drug tests. The court also

      approved Mother’s participation in parenting time if her drug tests came back

      negative but ordered visitations to stop should Mother test positive.


[6]   After DCS removed the Children from Mother’s care, DCS offered Mother case

      management and visitation services. Mother met with her case manager, Molly

      Craig, once per week and was doing “well.” Id. at 20. Mother also regularly




      Court of Appeals of Indiana | Opinion 18A-JC-2523 | April 1, 2019        Page 3 of 13
      participated in visitation with the Children.2 Mother visited with the Children

      three days per week for two and one-half to three and one-half hours per visit.


[7]   The trial court held a fact-finding hearing on the CHINS petition on August 17

      and 20. During the fact-finding hearing, DCS presented evidence that, in 2009,

      Mother, who is a registered nurse, had been convicted of possession of a

      controlled substance, as a Class C felony, after she had stolen prescription pain

      pills from patients. DCS also presented as evidence the results of the June 21

      hair follicle test, which results indicated that Mother had tested positive for

      methamphetamine on that date. DCS also called Nathan Elkins, an employee

      in the permanency department of DCS. Elkins testified that, during one

      random drug screen, Mother admitted that she had used methamphetamine

      while she was pregnant with J.O. and that the last time she had used

      methamphetamine was approximately one month prior to J.O.’s birth. Other

      than the June 21 hair follicle test, DCS did not submit as evidence the result of

      any other drug test during the fact-finding hearing. Rather, at the dispositional

      hearing, Elkins testified that Mother was “testing negative for everything” but

      her prescriptions and that she had not tested positive for methamphetamine

      “since the start of the case.” Id. at 127.


[8]   Elkins also testified regarding the visits between Mother and the Children.

      Elkins testified that the visits have been “outstanding . . . every time.” Id. at 20.



      2
        Mother missed “a couple” of visits with Children due to “scheduling issues with her visit facilitator.” Id. at
      21. But DCS “switched over to a new visit facilitator and things have gone well since then.” Id.

      Court of Appeals of Indiana | Opinion 18A-JC-2523 | April 1, 2019                                  Page 4 of 13
      Elkins stated that he “never had concerns” during any of the visits that he had

      supervised and that the Children “are very, very bonded to” Mother. Id. at 20-

      21. Further, Marcus Jackson, who took over supervising Mother’s visitation

      with the Children on August 1, testified that the visits between Mother and the

      Children “are going really, really great” and that Mother is “doing very well”

      with the Children. Id. at 105. He further testified that Mother is “parenting and

      providing everything they need” such as “bottles, food, . . . all those things, and

      just . . . bonding.” Id. He also testified that Mother does “a great job” at

      multitasking between the Children. Id. Jackson further testified that Mother

      has never appeared to be under the influence at any of the visits and that he had

      not had any concerns about Mother’s visits with the Children.


[9]   Mother also testified during the fact-finding hearing. Mother admitted that she

      had been homeless since June. But she also testified that she had signed a lease

      on a new condo the day before the hearing and that she would be moving into

      the condo that night. Mother also testified that she had everything the Children

      needed in the condo, that Transitional Housing had inspected her new condo,

      and that the condo was safe and appropriate for the Children. Additionally,

      Mother testified that she had recently accepted a new full-time nursing position,

      which was scheduled to begin on September 10. Mother acknowledged that the

      new position was contingent upon her passing a background check and drug

      screen. But Mother testified that her new employer already knew about her

      prior conviction in 2009 and that she had not had any other criminal

      convictions since that date.


      Court of Appeals of Indiana | Opinion 18A-JC-2523 | April 1, 2019         Page 5 of 13
[10]   During her testimony, Mother admitted that, prior to her 2009 conviction, she

       had used pain pills and developed an opiate habit. She further admitted that

       she had started using methamphetamine in August 2017 and that she had used

       methamphetamine while pregnant with J.O. But Mother also testified that she

       had obtained counseling without the assistance of DCS for “methamphetamine

       use in remission” and that she had been seeing her therapist once per week for

       four weeks.3 Id. at 62.


[11]   Mother also called Craig as a witness. Craig testified that, as Mother’s case

       manager, she had met with Mother once per week and that Mother was

       cooperative with her services and proactive with the goals that they had set.

       Craig further testified that Mother made Craig’s job “unusually” easy, as

       Mother had already made her resume and budget. Id. at 100. Craig testified

       that she was “there to support” Mother. Id.


[12]   Following the fact-finding hearing, the trial court adjudicated the Children to be

       CHINS. The trial court then held a dispositional hearing in which it ordered

       Mother to participate in services. This appeal ensued.




       3
         DCS did not authorize a substance abuse assessment for Mother as of the date of the fact-finding hearing.
       Elkins testified that DCS had “overlooked” making a referral for that assessment. Id. at 97.

       Court of Appeals of Indiana | Opinion 18A-JC-2523 | April 1, 2019                               Page 6 of 13
                                        Discussion and Decision
[13]   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.


                When reviewing a trial court’s CHINS determination, we do not
                reweigh evidence or judge witness credibility. In re S.D., 2
                N.E.3d 1283, 1286 (Ind. 2014). “Instead, we consider only the
                evidence that supports the trial court’s decision and [the]
                reasonable inferences drawn therefrom.” Id. at 1287 (citation,
                brackets, and internal quotation marks omitted). When a trial
                court supplements a CHINS judgment with findings of fact and
                conclusions of law, we apply a two-tiered standard of review.
                We consider, first, “whether the evidence supports the findings”
                and, second, “whether the findings support the judgment.” Id.
                (citation omitted). We will reverse a CHINS determination only
                if it was clearly erroneous. In re K.D., 962 N.E.2d 1249, 1253
                (Ind. 2012). A decision is clearly erroneous if the record facts do
                not support the findings or “if it applies the wrong legal standard
                to properly found facts.” Yanoff v. Muncy, 688 N.E.2d 1259, 1262
                (Ind. 1997) (citation omitted).


       Gr. J. v. Ind. Dep’t of Child Servs. (In re D.J.), 68 N.E.3d 574, 577-78 (Ind. 2017)

       (alteration in original).


[14]   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


       Court of Appeals of Indiana | Opinion 18A-JC-2523 | April 1, 2019            Page 7 of 13
       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.


[15]   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. “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).


[16]   DCS additionally alleged that J.O. was a CHINS pursuant to Indiana Code

       Section 31-34-1-10, which provides that a child is a child in need of services if

       the child is born with “any amount, including a trace amount, of a controlled

       substance . . . in the child’s body, including the child’s blood, urine, umbilical

       cord tissue, or meconium” and the child needs care, treatment, or rehabilitation

       that the child is not receiving or is unlikely to be provided or accepted without

       the coercive intervention of the court.


[17]   On appeal, Mother does not dispute that she had recently been homeless, that

       she had previously been convicted of a drug-related felony, that she had used

       methamphetamine while she was pregnant with J.O., or that J.O.’s cord blood

       tested positive for methamphetamine. Rather, Mother contends that the trial

       court erred when it adjudicated the Children to be CHINS because there is


       Court of Appeals of Indiana | Opinion 18A-JC-2523 | April 1, 2019          Page 8 of 13
       insufficient evidence to demonstrate that the Children need care that they are

       not receiving or that they are unlikely to receive without the coercive

       intervention of the court. We must agree.


[18]   DCS first asserted that the trial court’s coercive intervention is necessary

       because Mother has a long history of drug use and because Mother had initially

       lied to DCS about her drug use. To support that contention, DCS presented

       evidence that Mother was convicted of a felony in 2009 after she had stolen

       prescription pain pills from patients, that Mother admitted to using

       methamphetamine in August 2017, and that Mother initially lied to DCS when

       she told DCS that J.O. had been exposed to methamphetamine while Mother

       was at a friend’s house.


[19]   However, when determining whether a Child is a CHINS, courts “‘should

       consider the family’s condition not just when the case was filed, but also when

       it is heard.’” In re D.J., 68 N.E.3d at 580 (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.


[20]   Here, while the facts indicate that Mother has a history of drug use, that Mother

       had used methamphetamine during her pregnancy, and that Mother had

       previously been convicted of a drug-related crime, the facts also demonstrate

       that Mother has received help for her drug problem. Mother testified that she

       had obtained counseling to help with her “methamphetamine use in remission”


       Court of Appeals of Indiana | Opinion 18A-JC-2523 | April 1, 2019          Page 9 of 13
       without any assistance or direction from DCS. Tr. Vol. II at 62. Indeed, at the

       fact-finding hearing, Elkins testified that DCS had “overlooked” offering

       Mother any substance abuse assessment.4 Id. at 97. But, notwithstanding

       DCS’s oversight, Mother began counseling on her own and had been seeing her

       counselor once a week for four weeks. And DCS acknowledged that “Mother

       sought counseling on her own[.]” Appellee’s Br. at 9.


[21]   Further, DCS did not present any evidence that Mother had tested positive for

       methamphetamine or any other controlled substances since DCS filed the

       CHINS petitions. Rather, at the dispositional hearing, Elkins testified that

       Mother was “testing negative for everything” but her prescription medication

       and that she had not tested positive for methamphetamine “since the start of the

       case.” Id. at 127. Accordingly, the evidence demonstrates that, at the time of

       the fact-finding hearing, Mother had both received help for her drug problem

       and responded positively to that help, which included Mother having not failed

       a single drug test following DCS’s removal of the Children.


[22]   Still, DCS also alleged that the Children needed care that they were unlikely to

       receive without the coercive intervention of the court because “Mother’s job

       offer was contingent on her passing a drug screen and background check” and

       “[a]bsent the income from this job, Mother would not be able to afford the




       4
         DCS apparently authorized a substance abuse assessment for Mother after the fact-finding hearing. As of
       the date of the dispositional hearing, Mother had completed that assessment, but DCS had not yet received
       the results.

       Court of Appeals of Indiana | Opinion 18A-JC-2523 | April 1, 2019                            Page 10 of 13
       apartment she had located.” Appellee’s Br. at 17-18. In essence, DCS contends

       that “court intervention was necessary to ensure Mother maintained sobriety

       and passed the drug screen needed to officially obtain her nursing position.” Id.

       at 18.


[23]   However, any concern that DCS may have that Mother “would likely not be

       able to afford her new apartment” or might relapse is merely speculation about

       a potential future problem. Appellee’s Br. at 18. We understand that DCS may

       be concerned about Mother failing the drug test or the background check,

       which could cause her to lose her job. But a mere cause for concern “is not the

       touchstone of a CHINS determination, and an unspecified concern about what

       might happen in the future is insufficient in itself to carry the State’s burden of

       proof.” L.N. v. Ind. Dep’t of Child Servs. (In re L.N.), 118 N.E.3d 43, No. 18A-JC-

       1666, 2019 WL 273110, at *4 (Ind. Ct. App. Jan. 22, 2019).


[24]   We conclude that DCS did not present sufficient evidence that Mother needed

       the coercive intervention of the court in order to protect the Children from

       homelessness that may occur if Mother were to fail the background check and

       lose her new job. Rather, Mother testified that her new employer was aware of

       her criminal history and that she was set to begin her new job less than one

       month after the fact-finding hearing. In any event, even if Mother were to lose

       her new job, “the mere fact of an unemployed parent does not make a CHINS.”

       A.M. v. Ind. Dep’t of Child Servs. (In re S.M.), 45 N.E.3d 1252, 1256 (Ind. Ct. App.

       2015). And even if Mother were to lose her condo, “the mere fact of a family

       living in a shelter while seeking stable housing does not make a CHINS.” Id.

       Court of Appeals of Indiana | Opinion 18A-JC-2523 | April 1, 2019         Page 11 of 13
[25]   There is no dispute that, at the time DCS filed the CHINS petition, Mother was

       homeless, had recently used methamphetamine, and had recently given birth to

       a child who tested positive for methamphetamine. But, again, it is well settled

       that, when determining whether a child is a CHINS, 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. Here, the evidence demonstrates that,

       by the time of the fact-finding hearing, Mother had secured employment,

       created a budget, rented a new condo that was appropriate for the Children,

       actively and successfully participated in the services DCS had authorized, and

       sought out, again, with success, counseling on her own in order to stay sober.

       And Mother had not tested positive for controlled substances since the start of

       the case. Further, Mother was doing “really, really great” with visits, and she

       was “parenting and providing everything [the Children] need[.]” Tr. Vol. II at

       105.


[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. But

       the CHINS findings must be based on facts and reasonable inferences from the

       facts, not on speculative future concerns that may or may not ever happen.

       And it was DCS’s burden to prove that the Children needed care that they were

       unlikely to receive without the coercive intervention of the court. See In re S.D.,

       2 N.E.3d at 1287. In this case, DCS failed to present any evidence that the

       Children needed care that Mother was unlikely to provide without the coercive

       intervention of the court.


       Court of Appeals of Indiana | Opinion 18A-JC-2523 | April 1, 2019        Page 12 of 13
[27]   In sum, DCS did not meet its burden to demonstrate that the Children have

       needs that they were unlikely to receive without the coercive intervention of the

       court. We therefore hold that the trial court erred when it found the Children to

       be CHINS, and we reverse the trial court’s judgment.


[28]   Reversed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 18A-JC-2523 | April 1, 2019      Page 13 of 13
