S.E. v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
court except for the purpose of establishing Aug 03 2017, 6:26 am

the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Brooklyn, Indiana Attorney General of Indiana

Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

S.E., August 3, 2017
Appellant-Defendant, Court of Appeals Case No.
84A01-1702-JC-358
v. Appeal from the Vigo Circuit
Court
Indiana Department of Child The Honorable Sarah K. Mullican,
Services, Judge
Appellee-Plaintiff Trial Court Cause No.
84C01-1607-JC-824, 84C01-1607-
JC-825

Altice, Judge.

Case Summary

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[1] S.E. (Mother) appeals from the trial court’s order adjudicating her children to

be Children in Need of Services (CHINS). On appeal, Mother argues that the

trial court’s order is not supported by sufficient evidence.

[2] We affirm.

Facts & Procedural History

[3] Mother has two sons, B.E., born in January 2007, and A.M., born in September

2012 (collectively, the Children).1 The family first came to the attention of the

Department of Child Services (DCS) in November 2014, after law enforcement

found B.E. locked outside the home for approximately forty minutes in twenty-

degree weather. When Mother came home, it appeared to the Family Case

Manager (FCM) that Mother was under the influence, and there were human

feces found inside the home. The Children were removed from Mother’s care

at that time, but eventually returned and the case was closed successfully in

April 2015.

[4] In April 2016, FCM Melissa Eldred went to Mother’s brother’s home to

conduct an unrelated investigation concerning his children. When she arrived,

FCM Eldred could smell a very strong odor of marijuana from the sidewalk in

front of the house, and the smell intensified as she approached the house.

When FCM Eldred knocked on the door, she saw A.M. pull back the curtain.

1
The Children’s fathers are not actively involved in their lives and they have not participated in the DCS
assessment or this appeal.

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 The residents of the home then answered the door, and while FCM Eldred was

talking to them, Mother and A.M. left through the back door. The individuals

present at the home refused to identify Mother, but FCM Eldred finally learned

Mother’s identity approximately a month later. On May 19, 2016, FCM Eldred

generated a report and an investigation began.

[5] The next day, FCM Eldred made an unannounced visit to Mother’s home,

during which Mother admitted to using methamphetamine a couple of days

earlier. Mother submitted to a drug screen and tested positive for

amphetamine, methamphetamine, and THC. Prior to the filing of the CHINS

petitions, Mother was referred for a substance abuse assessment, random drug

screens, and home-based case management. Mother made an appointment for

her substance abuse assessment, but did not show up and did not reschedule,

stating that she would not comply with services until court ordered to do so.

Mother did submit to a number of drug screens, and she tested positive for

illegal drugs numerous times. Specifically, she tested positive for THC six more

times and amphetamine and methamphetamine two more times. Mother’s last

positive drug screen was August 1, 2016; after that, she refused to submit to any

more drug screens. Mother’s participation in home-based case management

was limited and sporadic, with the majority of Mother’s participation occurring

in the weeks preceding the CHINS fact-finding hearing.

[6] During this time, DCS also learned that B.E. had missed eleven days of school

and been tardy fourteen times. Mother told FCM Abigail Tracy that the

reasons for B.E.’s absences were “not DCS’s business.” Fact Finding Hearing

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 Transcript at 25. Additionally, on several occasions, Mother needed monetary

assistance to pay her utility bills in order to avoid being evicted.

[7] DCS filed petitions alleging that the Children were CHINS on July 29, 2016.

The Children remained in Mother’s care, and a fact-finding hearing was held on

December 12, 2016. On December 30, 2016, the trial court issued its order

adjudicating the Children CHINS. After a dispositional hearing was held but

prior to the entry of a written dispositional order, DCS filed a petition to modify

in which it sought the Children’s removal from Mother’s care due to her

continued refusal to submit to drug screens as ordered. The trial court held a

hearing on the petition to modify on January 6, 2017, at which Mother failed to

appear. On January 17, 2016, the court issued an order granting the petition to

modify and authorizing the Children’s continued placement in foster care. On

January 23, 2017, the court entered its dispositional decree ordering Mother to

participate in services. Mother now appeals.

Discussion & Decision

[8] Mother argues that the trial court’s CHINS finding was not supported by

sufficient evidence. Where, as here, a trial court enters findings of fact and

conclusions of law in support of its CHINS determination, we apply a two-

tiered standard of review. Parmeter v. Cass Cnty. Dep’t of Child Servs., 878 N.E.2d

444, 450 (Ind. Ct. App. 2007). First, we consider whether the evidence

supports the findings, and second, whether the findings support the judgment.

Id. We will not set aside the findings or judgment unless they are clearly

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 erroneous. Id. Findings are clearly erroneous when the record contains no

facts to support them either directly or by inference, and a judgment is clearly

erroneous if it relies on an incorrect legal standard. Id. While we defer to the

trial court’s findings of fact, we do not do so as to its conclusions of law. Id.

Additionally, we will not reweigh the evidence; rather, we consider the

evidence favorable to the judgment and draw all reasonable inferences in favor

of the judgment. Id.

[9] “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.” In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). In reviewing the

sufficiency of the evidence supporting a CHINS determination, we consider

only the evidence most favorable to the judgment and the reasonable inferences

flowing therefrom. In re J.L., 919 N.E.2d 561, 563 (Ind. Ct. App. 2009).

[10] In this case, DCS alleged that the Children were CHINS pursuant to Ind. Code

§ 31-34-1-1, which provides that a child under the age of eighteen is a CHINS

under the following circumstances:

(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
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 (B) is unlikely to be provided or accepted without the
coercive intervention of the court.

[11] On appeal, Mother argues that in the absence of evidence that her

methamphetamine use occurred in the Children’s presence, her three positive

tests for methamphetamine are insufficient to support a CHINS adjudication.

In support of her argument, Mother cites Perrine v. Marion Cnty. Office of Child

Servs., 866 N.E.2d 269, 276 (Ind. Ct. App. 2007), in which this court found that

a mother’s single admitted use of methamphetamine outside her child’s

presence was insufficient to support a CHINS finding.

[12] The facts of this case are readily distinguishable. This case began because A.M.

was present with Mother inside a home that smelled strongly of marijuana—in

other words, there was evidence that Mother exposed A.M. to illegal drug use.

Moreover, in the span of less than three months, Mother tested positive for

amphetamine and methamphetamine three times and THC seven times, and

she then refused to submit to any more drug screens. Additionally, Mother had

a previous DCS case in November 2014, she was unemployed and consistently

needed assistance with paying her utility bills in order to avoid eviction, and

B.E. had missed eleven days of school and been tardy fourteen times. This

evidence was sufficient to support a finding that the Children’s mental or

physical conditions were seriously endangered as a result of Mother’s untreated

substance abuse problems, her difficulty maintaining suitable housing, and her

failure to ensure that B.E. attended school.

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[13] We note further that Mother refused to engage in services and submit to drug

screens voluntarily, and she stated that she would not comply with services

until ordered to do so. This evidence is sufficient to support the trial court’s

finding that the Children needed care, treatment, or rehabilitation that they

were not receiving and was unlikely to be provided or accepted without the

coercive intervention of the court. In sum, DCS presented sufficient evidence

to support the trial court’s CHINS findings.

[14] Judgment affirmed.

[15] Baker, J. and Bailey, J., concur.

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