In the Matter of X.M. and D.M., Minor Children, Children Alledged to be in Need of Services, S.B. v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Feb 13 2015, 8:58 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel A. Dixon Gregory F. Zoeller
Lawrence County Public Defender Agency Indiana Attorney General
Bedford, Indiana
Robert J. Henke
Deputy Attorney General

David Dickmeyer
Deputy Attorney General
Indianapolis, Indiana

Darlene Steele McSoley
Bedford, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of X.M. and D.M., February 13, 2015
Minor Children, Children Court of Appeals Cause No.
Alleged to be in Need of Services, 47A01-1409-JC-415
Appeal from the Lawrence Circuit
S.B., Court, The Honorable Andrea K.
Appellant-Respondent, McCord, Judge; The Honorable
James F. Gallagher, Referee
v. Cause Nos. 47C01-1404-JC-93 and
47C01-1404-JC-94
Indiana Department of Child
Services,
Appellee-Petitioner

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 Najam, Judge.

Statement of the Case
[1] S.B. (“Mother”) appeals the juvenile court’s determination that her two

children, X.M. and D.M., were children in need of services (“CHINS”). 1 She

presents one issue for our review, namely, whether the juvenile court

committed clear error2 when it found that X.M. and D.M. were CHINS.

[2] We affirm.

Facts and Procedural History
[3] On April 9, 2014, officers with the Bedford Police Department contacted the

Indiana Department of Child Services (“the DCS”) regarding the “neglect” of

three-year-old X.M. and two-year-old D.M. Appellant’s App. at 10. Prior to

the call, Officers Brian Duffy and Eddie Allen had been dispatched to Mother’s

home on a report that two runaway teenagers, who had stolen several items,

including a gun, were located there.3 Officer Allen went around to the back of

the residence, and, when Officer Duffy knocked on the front door of Mother’s

1
Father is in prison and does not participate in this appeal.
2
The parties spend some time in their briefs discussing whether the Department of Child Services proved by
a preponderance of the evidence that the children in question are in need of services. See, e.g., In re S.A., 15
N.E.3d 602, 607 (Ind. Ct. App. 2014). This, however, is a trial-level burden of proof and does not reflect our
standard of review. We focus on the juvenile court’s judgment and review it under the clearly erroneous
standard.
3
The teenagers had run away from foster care. One of the teenagers and his mother had previously lived
upstairs in Mother’s residence.

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 home, he observed one of the teenagers look through the window blinds, yell,

and then run to the back of the home. Shortly thereafter, X.M., wearing only a

diaper, opened the door and let Officer Duffy into the home. X.M. informed

Officer Duffy that his parents were not at home.

[4] Once inside Mother’s residence—which did not have electricity and which

Officer Duffy described at trial as “dirty,” “smoky,” “haz[y],” “st[i]nk[y],” and

so cluttered that he could only walk on “a designated track”—the officers began

to search for the teenagers. Tr. at 10. As they searched the main floor, the

officers discovered D.M. asleep in a crib, dressed only in a diaper and wrapped

in a large pile of blankets.

[5] As the officers searched, they heard noises emanating from the home’s

basement. Aware of the report of a stolen firearm and concerned for officer

safety, Officers Duffy and Allen called for backup. When backup arrived, a

search of the home’s basement revealed the teenagers, who were hiding with a

gun, and a large quantity of stolen goods. In plain view, the officers also found

drugs and drug paraphernalia in the home, including a water bong in Mother’s

bedroom that field tested positive for marijuana.

[6] Officers detained the two teenagers and contacted Holly Kirstan, a Family Case

Manager with the DCS, regarding X.M. and D.M. After Kirstan arrived, but

before she could enter, Mother returned confused and angry. Police had been

at Mother’s home for approximately thirty-minutes when Mother arrived.

Mother stated that she had left the home to attempt, unsuccessfully, to get her

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 electricity turned back on, which the power company had shut off due to

approximately $900 owed in arrearages. She indicated that she did not leave

the children unattended but had left them with her cousin. Her cousin later

corroborated this, and he stated that he had left the children with the two

teenagers, unaware that they had committed any crimes.

[7] When Mother talked with the officers, she denied that the drugs and

paraphernalia found in the home belonged to her. Instead, she claimed that the

items belonged to the teenage boys. However, Mother appeared impaired.

Thus, the DCS asked Mother to take a drug test, but she refused.

[8] The DCS did not remove the children from Mother’s home on April 9 “on the

condition that the DCS would be following up the next day.” Id. at 42.

Instead, Kirstan created a Safety Plan for Mother to follow in caring for her

children. Mother, X.M., and D.M. then left with relatives, whom Mother had

called.

[9] Sylvia Nowakowski, a Family Case Manager with the DCS, attempted to

follow up with Mother on April 10 and April 11 but was initially unsuccessful.

She could not reach Mother and discovered from Mother’s relatives that

Mother had left town and had left her children in her relatives’ care. Further,

Nowakowski could not get a consistent answer regarding Mother’s

whereabouts, so she detained X.M. and D.M. After the DCS had detained the

children, Nowakowski finally reached Mother on the phone. Mother explained

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 that she was with a relative in Marion, Indiana. Mother stated that she would

text her current address to the DCS, but she never did.

[10] On April 15, 2014, the DCS filed a petition alleging that X.M. and D.M. were

CHINS,4 and the juvenile court held an initial hearing that same day. After the

hearing, the court found that remaining in Mother’s home would be contrary to

the health and welfare of the children, and it authorized the DCS to continue to

detain the children and to place them into protective custody. The DCS then

entered a referral for Mother to participate in supervised visitations with her

children. Nowakowski also continued to meet and work with Mother.

[11] Mother was mostly cooperative with Nowakowski. She would participate in

scheduled meetings, and she agreed to submit to drug screenings. However,

seven of Mother’s eight drug screenings indicated the presence of drugs or

prescription medications for which Mother did not have a prescription, and

some of those screenings occurred on days that Mother had visitation with her

children. Mother also freely admitted to using heroin on one occasion, to

regular use of methamphetamine, and to an addiction to Lortabs. And, in an

interview with the DCS, X.M. stated that, in addition to “brown cigarettes out

of a cigarette box,” Mother smoked a pipe. Appellant’s App. at 13. Further,

X.M. disclosed that “his mommy sometimes gave herself shots . . . on her

waist.” Id. (quotation marks omitted). X.M. knew that Mother kept needles on

4
The Appellant’s Appendix contains only documents related to X.M. The Appellant’s Brief indicates that
this is because the filings for X.M. and D.M. are identical with the sole exception of the identity of the child.

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 top of the home’s refrigerator, and he relayed that “[M]ommy said they are

bad.” Id. (quotation marks omitted).

[12] Nowakowski determined that Mother needed drug treatment and referred her

for a substance abuse assessment, which is necessary for treatment, at

Centerstone Behavioral Center. Despite scheduling the assessment three

different times, Mother never completed the assessment. Mother cancelled her

first appointment and simply did not show up to the latter two.

[13] Mother’s attendance at supervised visitations with her children, conducted by

Ireland Homebased Services, was inconsistent but did improve over time.

Mother was frequently late to visitations and missed three visitations in May.

This resulted in outbursts by both X.M. and D.M. Once, X.M. hit himself in

his head and yelled, “Why does [M]ommy do this to me?” 5 And D.M.

frequently cried and said, “Mommy, [M]ommy, where’s [M]ommy? Where’s

[M]ommy?” Tr. at 31.

[14] When Mother did participate in visitations with her children, the environment

was often tumultuous. As McDonald explained:

At the beginning [of visitation, Mother] always tries to be very
loving[,] and she gives hugs and kisses and smiles at [X.M. and D.M.],
but as the visits progress and the boys’ behavior becomes more difficult
to deal with, she becomes less and less positive and she—her visual
cues, her verbal cues, that she’s getting stressed out and it’s running

5
McDonald also noted that X.M.’s behavior worsened over time and that he “has a lot of anger.” Tr. at 32.

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 her fingers through her hair or biting her lip or the look in her eyes or
things she’ll say. It just becomes a stressful environment.

Id. at 32-33. McDonald also reported that Mother had yelled and cursed at the

children during visitations.

[15] The juvenile court conducted three fact-finding hearings regarding the DCS’s

CHINS petition over June and July, and, on July 29, it entered an order

adjudicating X.M. and D.M. CHINS. In relevant part, the court’s order stated:

1. On April 9th, 2014[,] the Bedford Police Department went to the
mother’s home trying to locate two male juveniles that were wanted
for theft of a gun and several other items[,] as well as for runaway.
After knocking, the officer observed one of the juveniles peek through
the blind and yell. Several minutes later, a small child in just a diaper
([X.M.]) opened the door and let the officers in the home. The wanted
juveniles were found in the home with a large amount of stolen
property, which was being stored in the basement of the home. The
officers also located [D.M.] sleeping in his crib[,] wearing only a
diaper[] but wrapped in a large pile of blankets. No one else was in the
house, which at the time had no heat, had a strong odor o[f] smoke
and[,] according to the officer[,] had things everywhere with only a
track to walk through.

2. The mother arrived home 30 minutes later saying she had been
trying to get the electricity turned back on and that she had left her
children with her cousin, which was verified through testimony[;]
however, the evidence showed he had left the children with the two
juveniles.

3. Also found in the home that day were two glass methamphetamine
pipes, a marijuana pipe, a bag of marijuana, rolling papers[,] and a
water bong. The mother stated these were not hers. She was asked to
submit to a drug screen that day but refused.

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 4. The children were not detained that day[;] however, after further
investigation and being unable to contact the mother, the children
were detained from the grandfather’s home on April 11th, 2014.

5. The mother submitted to a series of drug screens prior to the
hearing in this matter. Of those screens admitted into evidence, 7 of
the 8 were positive for various substances[,] including[] hydrocodone,
amphetamine, methamphetamine[,] and oxycodone.

6. The mother testified that she did not use in the presence of the
children but may have used the day before having them in her care at
times.

7. The court notes that a single instance of drug usage outside the
presence of the child is not sufficient to support a CHINS
determination, see Perrine v. Marion Cnty. Office of Child Servs., 866
N.E.2d 269 (Ind. Ct. App. 2007)[;] however, here[,] we have an
ongoing drug problem that shows the court that the mother cannot
provide appropriate care for the children and that her behavior
seriously impairs and endangers the children.

8. Further, although on the day of the [“]incidents[”] that le[d] to the
eventual detention of the children, the mother thought she was leaving
the children in appropriate care with her cousin, the factors of having
drug paraphernalia, stolen property[,] and wanted juveniles in a home
with no electricity added to a dangerous situation in which a toddler is
left opening the door to a stranger.

9. Even if the [DCS] did not prove by clear and convincing evidence
the statutory factors had been met . . . on th[e] day [the children were
detained], a parent’s situation at the time a CHINS petition is filed is
not the only relevant factor. The trial court should also consider the
situation of the parent at the time of the fact-finding. Montgomery v.
Marion Cnty. Office of Family & Children, 863 N.E.2d 413 (Ind. Ct. App.
2007). Based on the situation as a whole, the department has proven
by clear and convincing evidence that the children at issue are in need
of services that they are not receiving and are unlikely to be provided

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 or accepted without the coercive intervention of the court. The mother
needs help with her drug problem and[,] until she clearly has control of
that[,] she places her children in a situation in which they are
endangered by her inability to make appropriate decisions regarding
their care.

Appellant’s App. at 50-51 (emphases added) (citations corrected). This appeal

ensued.

Discussion and Decision
[16] Mother contends that the juvenile court erred when it adjudicated her children

CHINS. 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

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.

[17] 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.
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 (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).

[18] 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 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

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 inferences drawn in favor of the judgment. Yoon v. Yoon, 711 N.E.2d 1265, 1268

(Ind. 1999).

[19] At the outset, although not addressed by the parties, we note that the juvenile

court applied an incorrect legal standard in its order adjudicating the children as

CHINS; the court applied the clear and convincing evidence standard to the

facts when the DCS had the burden only to prove that X.M. and D.M. were

CHINS by a preponderance of the evidence. Davis, 869 N.E.2d at 1270. “The

‘clear and convincing’ standard is an intermediate standard of proof” that is less

rigorous than beyond a reasonable doubt but more demanding than the

preponderance of the evidence. R.Y. v. Ind. Dep’t of Child Servs. (In re G.Y.), 904

N.E.2d 1257, 1260 n.1 (Ind. 2009) (citation omitted). The standard does not

require proof that the facts “are certainly true[,] . . . almost certainly true[,] or . .

. true beyond a reasonable doubt.” Id. But proof by clear and convincing

evidence is “greater than a burden of convincing you that the facts are more

probably true than not.” Id. While a trial court’s application of an incorrect

legal standard can make its decision clearly erroneous, here, when the juvenile

court applied the more demanding clear and convincing evidence standard to

the facts presented, it necessarily found that the DCS had met its burden by a

preponderance of the evidence. Therefore, the trial court did not err on that

basis.

[20] With respect to the substance of the juvenile court’s findings and conclusions,

Mother asserts that the court’s findings that Mother’s “substance abuse problem

resulted in serious endangerment to D.M. and X.M.s mental and physical

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 health are contrary to law, without support by sufficient evidence in the record,

and are therefore clearly erroneous.” Appellant’s Br. at 5. Mother argues that

her substance-abuse problems did not endanger her children at all, and she

blames any endangerment that the children faced on “the intervening criminal

behavior of the juveniles who entered her home with drugs, paraphernalia, and

stolen property,” which she “could not have anticipated.” Id. We cannot

agree.

[21] First, the juvenile court’s findings are not contrary to law. Mother cites this

court’s decision in Perrine for the proposition that “additional proof of actual

endangerment beyond evidence of drug usage outside the presence of a child” is

needed “to support a CHINS determination.” Appellant’s Br. at 9. However,

the situation here is markedly different than that present in Perrine.

[22] Here, in contrast to Perrine, Mother denied using drugs in the presence of her

children, but the evidence most favorable to the judgment, at the very least,

supports the reasonable inference that Mother did, in fact, use drugs in the

presence of her children. See 866 N.E.2d at 276. In X.M.’s interview with the

DCS, he stated that he had seen Mother smoke a pipe and give herself shots on

her waist. Further, unlike in Perrine, Mother admitted to multiple instances of

drug use outside the presence of her children, not just one. See id. Indeed,

Mother admitted that she was addicted to Lortabs, and she tested positive for

the presence of controlled substances seven times. Finally, and in any event,

the juvenile court found additional evidence of endangerment beyond Mother’s

drug usage: The court noted the presence in the home of drug paraphernalia,

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 the runaway juveniles, and stolen goods, and it cited the home’s lack of

electricity to support its reasoning. The court also recognized Mother’s

“inability to make appropriate decisions regarding [her children’s] care,” which

it attributed to her drug problem. Appellant’s App. at 51.

[23] Thus, we must also reject Mother’s argument that she could not foresee the

runaway juvenile’s intervening criminality. In essence, the juvenile court found

that the presence of the runaway juveniles in Mother’s home resulted from

Mother’s poor decision making, which, in turn, was attendant to her substance

abuse. The evidence supports this conclusion, and Mother’s arguments to the

contrary request that we reweigh the evidence, which we will not do.

[24] We therefore hold that sufficient evidence supports the juvenile court’s findings,

and its findings support its conclusions. The evidence indicates that Mother

had a severe drug problem, which affected her decision making and, as a result,

the children’s wellbeing. The evidence demonstrates that the children lived in a

dirty home, which contained drugs and drug paraphernalia but had no heat.

Mother had approximately $900 in arrearages owed on her electric bill, and, as

a result, the electric company refused to reconnect electricity to her home.

Thus, the children lived in a home without heat, but they were clothed only in

diapers when police arrived. This evidence supports the juvenile court’s

determination that X.M. and D.M. are CHINS, and the court’s judgment is not

clearly erroneous.

[25] Affirmed.

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[26] Mathias, J., and Bradford, J., concur.

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