MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jun 18 2018, 8:38 am
court except for the purpose of establishing
                                                                            CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Benjamin J. Church                                       Curtis T. Hill, Jr.
Church Law Office                                        Attorney General of Indiana
Monticello, Indiana
                                                         Abigail R. Recker
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Matter of:                                     June 18, 2018
Mad.R. and Mas.R.                                        Court of Appeals Case No.
(Children in Need of Services),                          91A04-1711-JC-2809
and                                                      Appeal from the White Circuit
                                                         Court
D.C. (Custodian),
                                                         The Honorable Robert Thacker,
Appellant-Respondent,                                    Judge

        v.                                               Trial Court Cause No.
                                                         91C01-1705-JC-21
                                                         91C01-1705-JC-22
The Indiana Department of
Child Services,
Appellee-Petitioner.



Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 91A04-1711-JC-2809 | June 18, 2018            Page 1 of 11
                                   Case Summary and Issue
[1]   D.C. appeals the juvenile court’s adjudication of Mad.R. and Ma.R.

      (“Children”) as children in need of services (“CHINS”). D.C. raises two issues

      for our review, which we consolidate and restate as a single issue: whether the

      juvenile court’s CHINS determination is clearly erroneous. Concluding the

      juvenile court’s CHINS determination is not clearly erroneous, we affirm.



                               Facts and Procedural History
[2]   Mad.R. and Ma.R. are twins born to N.R. (“Mother”) in November of 2015.1

      Approximately six months after their birth, Mother placed her Children with

      D.C. and her husband, C.C. D.C. and C.C. are neighbors with the Children’s

      maternal grandmother.2 Although no guardianship was ever established, the

      Children have been raised and cared for by D.C. and her husband for a majority

      of their life.


[3]   In March of 2017, C.C. was arrested for possession of marijuana, possession of

      methamphetamine, and burglary. Shortly thereafter, the Indiana Department

      of Child Services (“DCS”) received allegations of excessive consumption of

      alcohol by D.C., drug use in the home, and unsanitary home conditions. DCS




      1
          The Children’s father is unknown.
      2
        D.C. and C.C.’s minor biological son, L.C., also lives in their home. The Indiana Department of Child
      Services also filed a petition alleging him to be a CHINS; however, the juvenile court determined he was not
      a CHINS.

      Court of Appeals of Indiana | Memorandum Decision 91A04-1711-JC-2809 | June 18, 2018             Page 2 of 11
      opened an investigation and met with D.C. and C.C. At the meeting on March

      10, 2017, D.C. admitted to using marijuana and she and her husband submitted

      to drug screens. D.C. tested positive for marijuana and C.C. tested positive for

      marijuana and methamphetamine. Their positive drug screens resulted in the

      DCS drug screening the Children. Ma.R. tested positive for methamphetamine

      and Mad.R. tested positive for methamphetamine and marijuana.


[4]   After receiving the results of their drug screens, D.C. did not permit C.C. to live

      with her and the Children and moved into a different home. Additionally, DCS

      created a safety plan in which maternal grandmother was to move in with D.C.

      to help care for Children. On April 28, 2017, maternal grandmother informed

      the DCS that due to her poor health, she was unable to help care for the

      Children. That same day, the DCS again drug tested the Children. Mad.R.’s

      drug screen showed a decreased exposure to methamphetamine and marijuana;

      however, Ma.R.’s showed an increase in exposure to methamphetamine and a

      positive test result for marijuana. The DCS then removed the Children from

      D.C.’s care and placed them in foster care.


[5]   On May 2, 2017, the DCS filed a verified petition alleging the Children to be

      CHINS. The juvenile court held a fact-finding hearing on the DCS’ petition on

      June 19, 2017. At the conclusion of the hearing, the juvenile court stated “I

      believe that the [Children] are Children in Need of Services, and I don’t think

      [D.C.] is an appropriate custodian for those children . . . .” Transcript, Volume

      2 at 143. Two days later, the juvenile court issued its order on the fact-finding,

      adjudicating the Children as CHINS. The order provides, in relevant part,

      Court of Appeals of Indiana | Memorandum Decision 91A04-1711-JC-2809 | June 18, 2018   Page 3 of 11
        In support for this conclusion of law, the following findings of
        fact are found:

        ***

        3.       [Mother] placed the child, as well as the child’s twin, with
                 [C.C.] and [D.C.] soon after they were born, and the child
                 has lived with them since that time. A guardianship was
                 never established for the child.

        4.       In March 2017, DCS received reports of suspected child
                 neglect involving the children alleging that [C.C.],
                 custodian, was arrested for drug possession, possession of
                 paraphernalia, and burglary, that [D.C.], custodian, was
                 consuming large amounts of alcohol and driving with the
                 children while under the influence of alcohol, and that
                 drugs were being used in the home.

        5.       After DCS received the initial report in March 2017,
                 [D.C.] tested positive for marijuana, [C.C.] tested positive
                 for marijuana and methamphetamine, the child tested
                 positive for methamphetamine and marijuana, and [C.C.]
                 was re-arrested and is currently in jail on several pending
                 criminal charges, including charges for theft relating to
                 taking proceeds from the sale of cattle not belonging to
                 him in amounts exceeding $14,000.00 and possession of
                 methamphetamine.

        6.       [D.C.] has a long history of alcohol and marijuana use and
                 has consumed alcohol and used marijuana while
                 supervising the child. A few years ago, she left a job she
                 had been at for several years and has not had stable
                 employment since that time; a previous employer testified
                 that she sometimes smelled alcohol on [D.C.’s] breath
                 while [D.C.] was at work. [D.C.] currently works part
                 time at a liquor store.

        7.       [Mother] is unable to provide the child with its basic
                 needs, care, and supervision and has a history of instability
                 and methamphetamine use.



Court of Appeals of Indiana | Memorandum Decision 91A04-1711-JC-2809 | June 18, 2018   Page 4 of 11
        8.       The child has been exposed to the effects of illegal drug
                 use.

        9.       [D.C.’s] alcohol and illegal drug use and [C.C.’s] illegal
                 drug use, criminal matters, and incarceration interfere with
                 their ability to provide the child with its basic needs, care,
                 and supervision.

        10.      [C.C.] and [D.C.] have demonstrated irrational thinking
                 and lack of insight to such an extent that their household is
                 not functioning at a level high enough to provide a safe
                 environment for the child.

        11.      The child’s physical or mental condition is seriously
                 impaired or seriously endangered as a result of the
                 inability, refusal, or neglect of the parents and custodians
                 to supply the child with necessary supervision.

        12.      The child needs care, treatment, or rehabilitation that it
                 isn’t receiving and is unlikely to be provided or accepted
                 without the Court’s coercive intervention.


Appendix of Appellant, Volume 2 at 30-31.3 D.C. now appeals. Additional

facts will be added as necessary.



                            Discussion and Decision




3
  The juvenile court’s order provided in the appendix only references Mad.R. and not Ma.R. See App. of
Appellant at 30-31. If there is a separate order adjudicating Ma.R. a CHINS, it has not been provided in the
appendix. Nonetheless, the transcript clearly demonstrates the juvenile court found both Mad.R. and Ma.R.
to be CHINS. The juvenile court concluded the fact-finding hearing stating, “Judgment of Child in Need of
Services on both of the [Children], and denying the petition on [L.C.].” Tr., Vol. 2 at 145.

Court of Appeals of Indiana | Memorandum Decision 91A04-1711-JC-2809 | June 18, 2018            Page 5 of 11
                                     I. Standard of Review
[6]   This court engages in a two-tiered standard of review when reviewing a juvenile

      court’s findings of fact and conclusions of law in a CHINS case. Matter of K.S.,

      78 N.E.3d 740, 744 (Ind. Ct. App. 2017).


              First, we determine whether the evidence supports the findings,
              and then, we determine whether the findings support the
              judgment. Findings are clearly erroneous when there are no facts
              or inferences to be drawn therefrom that support them. A
              judgment is clearly erroneous if the findings do not support the
              juvenile court’s conclusions or the conclusions do not support the
              resulting judgment.


      Id. (internal citations omitted). Moreover, when reviewing a juvenile court’s

      findings of fact, we do not reweigh evidence or judge the credibility of

      witnesses. In re D.F., 83 N.E.3d 789, 796 (Ind. Ct. App. 2017). Instead, we

      consider only the evidence supporting the judgment and the reasonable

      inferences drawn from that evidence. Id.


                                   II. CHINS Adjudication
[7]   D.C.’s argument is two-fold. First, D.C. challenges the juvenile court’s findings

      of fact. D.C. contests four of the juvenile court’s specific findings and argues

      they are unsupported by the evidence. Second, D.C. alleges the findings of fact

      do not support the juvenile court’s judgment.


                       A. The Juvenile Court’s Findings of Fact
[8]   D.C. challenges findings number 9 through 12. Those findings provide,

      Court of Appeals of Indiana | Memorandum Decision 91A04-1711-JC-2809 | June 18, 2018   Page 6 of 11
                9.       [D.C.’s] alcohol and illegal drug use and [C.C.’s] illegal
                         drug use, criminal matters, and incarceration interfere with
                         their ability to provide the child with its basic needs, care,
                         and supervision.

                10.      [C.C.] and [D.C.] have demonstrated irrational thinking
                         and lack of insight to such an extent that their household is
                         not functioning at a level high enough to provide a safe
                         environment for the child.

                11.      The child’s physical or mental condition is seriously
                         impaired or seriously endangered as a result of the
                         inability, refusal, or neglect of the parents and custodians
                         to supply the child with necessary supervision.

                12.      The child needs care, treatment, or rehabilitation that it
                         isn’t receiving and is unlikely to be provided or accepted
                         without the Court’s coercive intervention.


       App. of Appellant, Vol. 2 at 31.4


[9]    In regard to finding number 9, D.C. argues there is no evidence that her

       “alcohol or marijuana use had any tangible, harmful effects on [the Children].”

       Brief of Appellant at 10. D.C. also points to the fact she passed several alcohol

       and marijuana drug screens prior to the fact-finding hearing.


[10]   The evidence presented at the fact-finding hearing provides ample support for

       finding number 9. By her own admission and confirmed by her drug screens,




       4
        Numbers 11 and 12 are not findings of fact; they represent the juvenile court’s judgment that Children are
       CHINS and we address the juvenile court’s judgment below. Further, finding number 10, even if we were
       able to determine what constitutes “irrational thinking,” is not relevant to our ultimate conclusion. App. of
       Appellant, Vol. 2 at 31. The facts pertinent to the removal of the Children from the home and their CHINS
       adjudication relate to D.C. and C.C.’s use of alcohol and illegal drugs and exposure of the Children to those
       drugs. Thus, we confine our review to finding number 9.

       Court of Appeals of Indiana | Memorandum Decision 91A04-1711-JC-2809 | June 18, 2018              Page 7 of 11
       D.C. uses marijuana. Her husband, C.C., uses marijuana and

       methamphetamine and is facing criminal charges for his use of both substances.

       Moreover, there was concerning evidence about the amount of alcohol D.C.

       consumed. D.C. admitted to using alcohol while the Children were under her

       supervision and the Children’s maternal grandmother testified she often saw

       D.C. drinking alcohol and on at least one occasion witnessed D.C. drive after

       drinking alcohol. A former employer of D.C. who is also her relative testified

       she has smelled alcohol on D.C.’s breath at work. And D.C.’s mother-in-law

       testified she “thinks she drinks too much” and “needs to cut back on drinking.”

       Tr., Vol. 2 at 52. D.C.’s mother-in-law also stated she has witnessed D.C. drive

       after drinking alcohol with the Children in the vehicle.


[11]   Most importantly, the Children have been exposed to D.C. and C.C.’s drug

       abuse with both Children testing positive for marijuana and methamphetamine.

       The evidence presented at the hearing provides a link between D.C. and C.C.’s

       illegal drug use and harmful and potentially harmful effects upon the Children,

       such as drinking and driving with them in the vehicle, supervising them while

       consuming alcohol, and exposing them to the illegal drugs of marijuana and

       methamphetamine. See In re J.L., 919 N.E.2d 561, 564 (Ind. Ct. App. 2009)

       (affirming a CHINS determination where the mother knowingly exposed her

       thirteen-month-old child to an environment of illegal drug use). Accordingly,

       the juvenile court’s finding that D.C. and C.C.’s drug and alcohol use interfered

       with their ability to provide for the Children’s basic needs is not clearly

       erroneous.


       Court of Appeals of Indiana | Memorandum Decision 91A04-1711-JC-2809 | June 18, 2018   Page 8 of 11
                              B. The Juvenile Court’s Judgment
[12]   D.C. also alleges the juvenile court’s findings do not support the judgment the

       Children are CHINS. Specifically, D.C. argues the Children were not

       endangered at the time of the fact-finding hearing because she remedied the

       concerns about her drug use; therefore, coercive intervention of the court was

       unnecessary.


[13]   Pursuant to Indiana Code section 31-34-1-1, 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.


[14]   Thus, the statute requires the DCS to prove three basic elements: (1) the

       parent’s actions or inactions have seriously endangered the children, (2) the

       children’s needs are unmet, and (3) the children’s needs are unlikely to be met

       without State intervention. In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014).

       Because a CHINS proceeding is a civil proceeding, the DCS must prove the

       children are CHINS by a preponderance of the evidence. In re K.D., 962

       N.E.2d 1249, 1253 (Ind. 2012).

       Court of Appeals of Indiana | Memorandum Decision 91A04-1711-JC-2809 | June 18, 2018   Page 9 of 11
[15]   D.C.’s main argument with respect to the juvenile court’s judgment is that

       coercive judicial intervention is unnecessary because she remedied the

       conditions by passing numerous alcohol and drug tests in the months prior to

       the fact-finding hearing. D.C. cites to In re R.S., 987 N.E.2d 155, 159 (Ind. Ct.

       App. 2013), where we stated a “CHINS adjudication may not be based solely

       on conditions that no longer exist.”


[16]   While it may be that D.C. passed her drug and alcohol screens, we conclude the

       juvenile court’s judgment is supported by the findings and State intervention is

       necessary to protect the Children. After the Children were born, their biological

       mother left them with D.C., who never established a guardianship or possessed

       legal custody of the Children. As far as the record demonstrates, Mother still

       possesses legal custody of the Children although she is unable or unwilling to

       care for them.5 Moreover, Mother left the Children in an environment where

       they were exposed to alcohol abuse and illegal drugs and subsequently tested

       positive for those same drugs. The juvenile court’s judgment, therefore, is not

       clearly erroneous.




       5
        According to the DCS family case manager, Holly Bishop, Mother has expressed her desire that the
       Children not be returned to D.C. and C.C.’s care and custody. See Tr., Vol. 2 at 99.

       Court of Appeals of Indiana | Memorandum Decision 91A04-1711-JC-2809 | June 18, 2018        Page 10 of 11
                                               Conclusion
[17]   The judgment of the juvenile court is not clearly erroneous. Accordingly, we

       affirm the Children’s adjudication as CHINS.


[18]   Affirmed.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 91A04-1711-JC-2809 | June 18, 2018   Page 11 of 11
