FILED
May 31 2018, 8:44 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Renee M. Ortega Curtis T. Hill, Jr.
Lake County Juvenile Public Defender’s Attorney General of Indiana
Office
Crown Point, Indiana David E. Corey
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: Ad.M., An.M., May 31, 2018
and S.M. (Minor Children); Court of Appeals Case No.
45A04-1711-JC-2634
A.M. (Mother),
Appeal from the Lake Superior
Appellant-Respondent, Court
v. The Honorable Thomas P.
Stefaniak, Jr., Judge
Indiana Department of Child The Honorable Jeffrey Miller,
Services, Magistrate
Appellee-Petitioner. Trial Court Cause Nos.
45D06-1706-JC-722
45D06-1706-JC-723
45D06-1706-JC-724
Najam, Judge.
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Statement of the Case
[1] A.M. (“Mother”) appeals the trial court’s adjudication of her three minor
children, Ad.M., An.M, and S.M. (“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 Children to be CHINS.1
[2] We reverse.
Facts and Procedural History
[3] Mother is married to P.G. (“Father”). Mother and Father have one child,
S.M., born October 27, 2015. Mother also has two children from a prior
relationship: Ad.M., born December 19, 2005, and An.M., born February 24,
2014. When S.M. was born, she tested positive for marijuana. As a result, the
Indiana Department of Child Services (“DCS”) began an informal adjustment2
with Mother, which she successfully completed in 2016.
[4] Mother owns a trailer on Melton Road in Gary. However, in 2017, Mother
and the Children were staying in a house on Whitcomb Road because the
power had been shut off at the trailer. The house belonged to a family friend
named B.V. Father did not reside at the house with Mother. On June 22,
2017, Mother and Father got into a physical altercation at the house while the
1
The Children’s respective fathers do not participate in this appeal.
2
An informal adjustment is “a six[-]month probationary period with DCS in which the family will
participate in services and . . . upon successful completion, then they are done.” Tr. Vol. II at 20.
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Children were present. Mother and Father believed that the Children were
asleep. However, Ad.M. was awake and walked in on the altercation. Ad.M.
saw that Father was holding Mother down. Ad.M. attempted to break up the
fight, but Father shoved Ad.M. Ad.M. got scared, and he called the police.
Officers arrived at the home and conducted an investigation. During their
investigation, officers found six marijuana plants that B.V. admitted belonged
to him. Officers arrested B.V.
[5] DCS received a report that there had been a domestic dispute at the house while
the Children were present and that there were drugs in the house. DCS
investigator Erin Kujawa was assigned to investigate the report. On Friday,
June 23, Kujawa attempted to find Mother, but Mother was not at either the
house or the trailer. Kujawa was finally able to reach Mother by telephone, and
they set up an initial meeting for Monday, June 26. During that weekend,
Mother and the Children moved their belongings from the trailer into the
house.
[6] On June 26, Kujawa met Mother at the house. Kuajwa noticed that the house
was “cluttered.” Tr. Vol. II at 25. During the meeting, Kujawa spoke with
Mother about the marijuana plants that officers had found, and she learned that
Mother knew that the plants had been there. Kujawa also noticed that Ad.M.
had a bruise on his face. Mother stated that Ad.M. was bruised when he
tripped over An.M.’s foot while at the doctor’s office. Kujawa asked Mother to
take a drug test, but mother refused.
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[7] On June 29, Janet Taylor, a permanency case manager with DCS, visited
Mother at the house. Taylor observed that the house was in “terrible
condition.” Id. at 34. She noticed that the water from a bathroom sink was
brown, the kitchen faucet did not work, there was a “minimal amount of food,”
and the carpet was “extremely dirty. It felt sticky under your feet.” Id. at 36.
She also saw that S.M.’s bed was right in front of a television. Taylor thought
that that was dangerous because S.M. could “easily pull the television down on
herself.” Id. at 35. An.M. and Ad.M. slept on air mattresses on the floor, but
the air mattresses were not blown up. Taylor also noticed that the toilet was
not operable and there was a “very bad odor” coming from the toilet. Id. at 37.
Taylor observed that there was no water in the home, and there was very little
food. Mother told Taylor that she went to the store daily to buy food and
water, but there was no drinking water at the time of Taylor’s visit.
[8] Based on her observations, Taylor told Mother that the house was not suitable
for children. Mother called Father and arranged for her and the Children to
stay with Father at Father’s mother’s home. Taylor visited that home and
found it to be appropriate. As such, Mother and the Children moved into
Father’s mother’s home with Father.
[9] That same day, DCS filed petitions alleging that the Children were CHINS due
to the incident of domestic violence, the conditions of B.V.’s house, Mother’s
unstable housing, Mother’s refusal to take a drug test, and the presence of drugs
in B.V.’s house. The Children remained in Mother’s care.
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[10] The next day, Taylor again visited the family to put a safety plan into place due
to the incident of domestic violence. When Taylor mentioned the safety plan,
Mother “cursed [her] out.” Id. at 40. Taylor told Mother about community
resources that were available to Mother, including food stamps and WIC, but
Mother said they “didn’t need those things” because Mother is an attorney. Id.
[11] About one week later, Mother called Taylor to inform Taylor that Mother and
the Children had moved out of Father’s mother’s home, were currently staying
at a hotel, and were going to move back into the trailer. The next day, which
was a Friday, Taylor went to the trailer and observed that it was “extremely
cluttered.” Id. at 43. Taylor informed Mother that she would return on
Monday and that if the house was not clean, then the Children could not stay
there. When Taylor returned to the trailer on Monday, it was clean. Also
during her investigation, Taylor spoke with the Children and learned that the
Children had “seen [marijuana] in the home[.]”3 Id. at 60. And, at some point,
Mother filed for a protective order against Father.
[12] B.V. was also present at the trailer when Taylor arrived on that Monday.
Taylor learned that B.V. watches the Children for Mother when Mother is at
work. Because officers had arrested B.V. and because B.V. had admitted to
using marijuana, Taylor requested that B.V. submit to a background check.
3
It is unclear from the record when Taylor interviewed the Children or in which home the Children had
seen the marijuana. Construing the record in the light most favorable to the trial court’s judgment, as we
must, we conclude that this sentence must refer to Mother’s home at the time of the evidentiary hearing on
the CHINS petition.
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B.V. failed to comply. About ten days after her inspection of the trailer, Taylor
obtained a hair follicle from Mother in order to run a drug test. Mother tested
positive for marijuana.4 Taylor also tested Mother for drugs a second time
about a month later, on August 15, and Mother again tested positive for
marijuana.
[13] On August 31, the trial court held a hearing on the CHINS petition. During the
hearing, the court authorized the following services for Mother: clinical
assessment, home-based case work services, parenting assessment, domestic
violence services, substance-abuse assessment, and hair follicle testing. The
trial court then held a fact-finding hearing on October 24. Thereafter, the trial
court adjudicated the Children to be CHINS. This appeal ensued.
Discussion and Decision
[14] 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.
A CHINS proceeding is a civil action; thus, “the State must
prove by a preponderance of the evidence that a child is a
CHINS as defined by the juvenile code.” [N.L. v. Ind. Dep’t. of
Child Servs. (In re N.E.)], 919 N.E.2d 102, 105 (Ind. 2010). We
neither reweigh the evidence nor judge the credibility of the
witnesses. Egly v. Blackford County Dep’t of Pub. Welfare, 592
N.E.2d 1232, 1235 (Ind. 1992). We consider only the evidence
4
Mother also tested positive for amphetamines. However, Mother has a prescription for Adderall.
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that supports the trial court’s decision and reasonable inferences
drawn therefrom. Id. We reverse only upon a showing that the
decision of the trial court was clearly erroneous. Id.
S.S. v. Ind. Dep’t. of Child Servs. (In re K.D.), 962 N.E.2d 1249, 1253 (Ind. 2012).
The court did not enter specific findings of fact, and neither party requested
them. As such, we review the issues under “the general judgment standard,
under which a judgment ‘will be affirmed if it can be sustained on any legal
theory supported by the evidence.’” J.B. v. Ind. Dep’t. of Child Servs. (In re S.D.),
2 N.E.3d 1283, 1287 (Ind. 2014) (quoting Yanoff v. Muncy, 688 N.E.2d 1259,
1262 (Ind. 1997)).
[15] 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
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.
[16] 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
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(emphasis added). “A CHINS adjudication focuses on the condition of the
child.” In re N.E., 919 N.E.2d at 105. And, when determining whether a child
is a CHINS under Section 31-34-1-1, 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.
[17] Here, Mother contends that the trial court erred when it adjudicated the
Children to be CHINS because there is insufficient evidence that Children were
seriously endangered by Mother’s actions or inactions.5 We must agree.
[18] On appeal, DCS first contends that the Children are CHINS because of
Mother’s marijuana use and the presence of marijuana in Mother’s home. In
support of that contention, DCS presented evidence that Mother had tested
positive for marijuana on two separate occasions after DCS had filed the
CHINS petitions, and Taylor testified that Mother is a “chronic” user. Tr. Vol.
II at 47. In addition, Taylor testified that the Children had told her that they
had seen marijuana in the home.6
[19] We must conclude that evidence of one parent’s use of marijuana and evidence
that marijuana has been found in the family home, without more, does not
5
During the fact-finding hearing, DCS presented evidence regarding Mother’s housing situation. However,
on appeal, DCS does not allege that the Children are CHINS because of Mother’s living arrangements. And
the evidence presented shows that, while Mother moved several times in a matter of only a few weeks, she
now resides with the Children at the trailer, the trailer was in “decent order” when Taylor visited on October
6, and Mother still resided there at the time of the fact-finding hearing. Tr. Vol. II at 54. Additionally,
during the dispositional hearing, the trial court found that Mother’s housing is “fine.” Id. at 85.
6
DCS did not present specific evidence of when or how often the Children had seen marijuana in the home.
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demonstrate that a child has been seriously endangered for purposes of Indiana
Code Section 31-34-1-1. Indeed, DCS did not present any evidence that either
Mother’s drug use or the presence of marijuana in the home have seriously
endangered the Children. Rather, when asked to describe how Mother’s
marijuana use has impacted the Children, Taylor testified that she “really can’t
see the way that it has impacted them.” Id. at 56. Further, DCS did not present
any evidence that Mother used drugs while the Children were present in the
home or while she had care of the Children.
[20] This court has held that children were not CHINS despite Mother’s history of
sporadic marijuana use because there was no evidence that, at any point and
time, any of the children were endangered, that the parents had ever used drugs
in the presence of the children, or that there was ever an occasion in which the
parents were impaired by substance abuse while the children were in their care.
See A.M. v. Ind. Dep’t. of Child Servs. (In re S.M.), 45 N.E.3d 1252, 1255-56 (Ind.
Ct. App. 2015).
[21] Again, it is well-settled that a “CHINS adjudication focuses on the condition of
the child.” In re N.E., 919 N.E.2d at 105. And this court has also held that a
mother’s ingestion of marijuana while pregnant and the presence of marijuana
in the meconium of the child at birth is not sufficient evidence in itself to
demonstrate that a child is seriously impaired or seriously endangered. See In re
S.M., 45 N.E.3d at 1255-56. Following In re S.M., without any specific
evidence that the marijuana itself or Mother’s use of it presented a serious
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danger to the Children, we must conclude that the DCS failed to present
sufficient evidence to support the CHINS determination.7
[22] Still, DCS also alleged that the Children were CHINS because of the single
incident of domestic violence between Mother and Father, which Ad.M. had
witnessed. Specifically, DCS asserts that the Children are CHINS because
Mother moved in with Father approximately one week after the incident,
Mother has not filed for a dissolution of her marriage to Father, Mother did not
file for the protective order right away, Ad.M. had expressed concerns to Taylor
about the domestic violence, and Mother has not received counseling or taken
Ad.M. to be evaluated by a therapist. To support its contention, DCS relies on
In re N.E., 919 N.E.2d at 106, in which the Indiana Supreme Court determined
that the “ongoing domestic violence between [mother] and the alleged father of
her youngest child” and the “several incidents of domestic violence against
Mother in the presence of her children” supported the CHINS adjudication.
[23] However, the domestic violence here was neither “ongoing” nor over “several
incidents,” and we have held that a child is not a CHINS after witnessing a
domestic-violence incident when the mother quit seeing her abuser and had
filed for a protective order against him. See M.C. v. Marion Cty. Dep’t. of Child
7
To the extent that DCS alleged at the fact-finding hearing that the Children are CHINS because B.V., the
primary caretaker of the Children when Mother is at work, was arrested for possession of marijuana and has
admitted to a history of using marijuana but has failed to submit to a background check, DCS similarly
presented no evidence that B.V. had ever used marijuana while the Children were in his care or in the
presence of the Children. Further, DCS did not present any evidence that B.V. has watched the Children at
his house since Mother and the Children moved out.
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Servs. (In re B.N.), 969 N.E.2d 1021, 1026 (Ind. Ct. App. 2012). Similarly, the
evidence in the instant case demonstrates that there was one incident of
domestic violence between Mother and Father, that Mother and the Children
have since moved away from Father, and that Mother has filed for a protective
order against him. Accordingly, DCS has not presented sufficient evidence to
show that the single incident of domestic violence seriously endangered the
Children.
[24] Where the termination of parental rights is at stake, the trial court has
“discretion to weigh a parent’s prior history more heavily than efforts made only
shortly before termination.” E.M. v. Ind. Dep’t. of Child Servs. (In re E.M.), 4
N.E.3d 636, 643 (Ind. 2014) (emphasis added). However, when determining
whether a Child is a CHINS under Section 31-34-1-1, as is the case here, courts
“‘should consider the family’s condition not just when the case was filed, but
also when it is heard.’” Gr. J. v. Ind. Dep’t. of Child Servs. (In re D.J.), 68 N.E.3d
574, 580 (Ind. 2017) (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.
[25] Here, while the facts indicate that there were problems with Mother’s living
arrangements and with domestic violence at the time DCS filed the CHINS
petition, the facts also demonstrate that Mother has remedied the housing
situation, and she has moved away from Father and filed for a protective order
against him. And even though the Children have seen marijuana and Mother
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continues to use marijuana, DCS presented no evidence that either the
Children’s observation of the marijuana or Mother’s use of it has endangered
the Children or impacted them in any way. In sum, DCS did not meet its
burden to demonstrate that the Mother’s actions or inactions have impacted,
much less seriously endangered, the Children. See In re S.D., 2 N.E.3d at 1287.
[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[.]” Appellee’s Br. at 18. But the CHINS finding must be based on
facts. And it was DCS’s burden to prove that Mother’s actions or inactions
have seriously endangered the Children. See In re N.E., 919 N.E.2d at 105.
Here, DCS did not present any evidence that the Children’s physical or mental
conditions were seriously impaired or endangered as a result of Mother’s
actions or inactions. See In re B.N., 969 N.E.2d at 1026. We therefore hold that
the trial court erred when it found the Children to be CHINS, and we reverse
the trial court’s judgment.
[27] Reversed.
Robb, J., and Altice, J., concur.
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