In the Matter of: C.T., (Child in Need of Services), N.T. v. Indiana Department of Child Services (mem. dec.)

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

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 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

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 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

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 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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