MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Aug 09 2018, 9:32 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Roberta Renbarger Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Abigail R. Recker
Robert J. Henke
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: August 9, 2018
D.K.M. and A.M. (Minor Court of Appeals Case No.
18A-JC-672
Children)
Appeal from the Allen Superior
Court
A.D.M. (Mother), The Honorable Charles F. Pratt,
Appellant-Respondent, Judge
The Honorable Sherry A. Hartzler,
v. Magistrate
Trial Court Cause No.
The Indiana Department of 02D08-1706-JC-465
Child Services,
Appellee-Petitioner.
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Riley, Judge.
STATEMENT OF THE CASE
[1] Appellant-Respondent, A.D.M. (Mother) appeals the trial court’s determination
that her minor child, A.M. (Child), is a Child in Need of Services (CHINS).
[2] We affirm.
ISSUE
[3] Mother presents one issue on appeal, which we restate as: Whether the trial
court’s order, adjudicating Child as a CHINS, is clearly erroneous.
FACTS AND PROCEDURAL HISTORY
[4] Around June 8, 2017, the Indiana Department of Child Services (DCS)
received a report that Child, who was then three-years-old, had “crawled out
the broken second story window and was on top of the porch.” (Transcript p.
10). The following day, Child got out on the roof again, where he was found by
law enforcement. At all times during these proceedings, Father was
incarcerated.
[5] On June 12, 2017, DCS Family Case Manager, Deborah McClintock (FCM
McClintock), conducted a family assessment. Mother informed her that Child
was “very hyperactive” and “almost impossible” to “supervise a hundred
percent of the time.” (Tr. p. 29). She also admitted that Child “had been up on
the roof unsupervised.” (Tr. p. 29). FCM McClintock observed the home to
have sustained water damage and was concerned about the disorganization of
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the residence and the “really large number of cats present” but the home “did
meet minimum stand[ards] for cleanliness and it did have ample food and all
working utilities.” (Tr. p. 30). Mother refused to take a drug screen and stated
“very adamantly that she felt she would not benefit from” DCS’s services or
any home-based services. (Tr. p. 30). When FCM McClintock returned to the
home a couple of days later, Mother had fixed the broken window.
[6] On June 19, 2017, DCS filed its petition alleging Child to be a CHINS. 1 At the
end of June 2017, Family Case Manager Ashley Johnson (FCM Johnson) met
with Mother during a child and family team meeting to discuss services and to
schedule a home visit. At the end of the meeting, Mother submitted a drug
screen which returned positive for heroin metabolite and morphine. Mother
was “very alarmed” at the result. (Tr. p. 34). “She said she had no clue how
she could test positive for something such as heroin[.]” (Tr. p. 34). Mother was
screened seven days later and again tested positive. Because of the positive
screens, DCS removed the Child on July 19, 2017. DCS referred Mother for a
diagnostic assessment and a substance abuse assessment. Mother completed
the diagnostic assessment and she was recommended to participate in ongoing
psychiatric medication and pain management, but Mother declined any further
assistance for substance abuse.
1
Initially, the CHINS petition was filed for both A.M. and his older brother, D.K.M. However, the court
did not adjudicate D.K.M as a CHINS as he was seventeen years old.
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[7] FCM Johnson continued to test Mother for another eight screens and “each one
has been positive for heroin and other substances[,]” such as fentanyl,
hydrocodone, suboxone, and oxycodone. (Tr. p. 35). Mother testified that she
has been using Percocet and hydrocodone for chronic pain as a result of
degenerative disc disease, as well as muscle relaxers and anti-inflammatories.
Mother explained that in May or June of 2017, she had visited a holistic healer
who provided her with a “supplement” based on herbs to help with pain
management and which she takes four to six times daily. (Tr. p. 14). She
clarified that she was unaware that the supplement contained heroin until she
tested positive during DCS’s screens. However, since becoming aware of the
heroin component, Mother has continued to use the supplement and although
she tried to stop “cold turkey,” she became ill and exhibited withdrawal
symptoms. (Tr. p. 16). Mother has been taking suboxone to get clean but also
takes heroin when she does not have suboxone available. She admitted that she
participated in a suboxone treatment program at Clean Slate in Fort Wayne,
Indiana, but has not signed a release for DCS to obtain information from the
program. DCS is unaware of Mother’s participation in services other than the
suboxone program.
[8] On December 7, 2017, the trial court conducted a fact-finding hearing. FCM
Johnson testified that she remained concerned about the lack of supervision of
the Child due to Mother’s heroin use. She stated that “the substance use can
impede on her ability to properly supervise [Child] especially with her
expressing that he is very active and motivated[.] . . . [Child] is very
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aggressive. Like I’ve gone to a visit and he’s been aggressive, difficult to control
with words, telling him no, . . . He’s very vocal and needs a lot of redirection.”
(Tr. p. 44).
[9] On December 11, 2017, the trial court issued its order adjudicating Child as a
CHINS. On February 18, 2018, after a dispositional hearing, the trial court
entered its dispositional decree, ordering Mother to participate in services,
substance abuse counseling, homebased services, and participate in a
medication management service.
[10] Mother now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
[11] Mother argues that the trial court’s CHINS determination is not supported by
the evidence. When determining whether sufficient evidence exists in support
of a CHINS determination, we consider only the evidence most favorable to the
judgment and the reasonable inferences therefrom. In re S.D., 2 N.E.3d 1283,
1287 (Ind. 2014). This court will not reweigh the evidence or reassess the
credibility of the witnesses. Id. at 1286. When a juvenile court’s order contains
specific findings of fact and conclusions thereon, we engage in a two-tiered
review. In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014). First, we determine
whether the evidence supports the findings, and then, we determine whether the
findings support the judgment. Id. Findings are clearly erroneous when there
are no facts or inferences drawn therefrom that support them. Id. A judgment
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is clearly erroneous if the findings do not support the juvenile court’s
conclusions or the conclusions do not support the resulting judgment. Id.
[12] CHINS proceedings are civil actions, and therefore, “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). On review, we
neither reweigh the evidence nor judge the credibility of the witnesses. Id. We
consider only the evidence that supports the juvenile court’s decision and
reasonable inferences drawn therefrom. Id. We reverse only upon a showing
that the decision of the juvenile court was clearly erroneous. Id.
[13] To meet its burden of establishing CHINS status, DCS must prove that the
child is under 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.
Ind. Code § 31-34-1-1. Although the acts or omissions of one or both parents
can cause a condition that creates the need for court intervention, the CHINS
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designation focuses on the condition of the child rather than on an act or
omission of the parents. In re N.E., 919 N.E.2d at 105. “[T]he purpose of a
CHINS adjudication is to protect children, not punish parents.” N.L. v. Ind.
Dep’t of Child Servs, 919 N.E.2d 102, 106 (Ind. 2010).
[14] While not disputing the trial court’s facts in its Order, Mother claims that the
conditions which gave rise to the DCS investigation and involvement were fully
resolved prior to the fact-finding hearing. She fixed the broken window and
“she personally secured treatment in a suboxone program.” (Mother’s Br. p.
12). Accordingly, she denies that the coercive intervention of the court is
needed as she “firmly believes that she has always provided for her children
emotionally, physically, psychologically, and medically for the past twenty-two
years.” (Mother’s Br. p. 13). Mother claims that “although there may be issues
in her life, they are not issues that she requires assistance to address, but are
issues she has and can address herself.” (Mother’s Br. p. 13).
[15] While we agree with Mother that the initial reason of DCS’s involvement with
the family was very quickly remedied by fixing the window, the Child’s CHINS
determination was solely based on Mother’s drug use and inability to supply
him with the necessary supervision. Since DCS became involved with the
family and instigated drug screens, Mother tested positive for heroin eight
times, with the most recent drug screen of September 11, 2017 showing the
highest levels of all previous screens. Mother admitted to using heroin in lieu of
medically prescribed pain medication. She also conceded that she used this
supplement four to six times daily while caring for Child and continued to
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ingest it after being made aware of the supplement’s heroin component. At
times, Mother not only tested positive for heroin but also for suboxone, which
she was supposed to use to get clean, and fentanyl. During these proceedings,
Mother not only adamantly refused DCS’s help but also “doesn’t think she
needs a substance abuse treatment.” (Tr. p. 9).
[16] Assessing the evidence as a whole, we note that “[p]arents who make positive
changes in their lives should be applauded, rather than being subjected to the
coercion of a CHINS finding.” Matter of E.K., 83 N.E.3d 1256, 1261 (Ind. Ct.
App. 2017). As such, a CHINS finding 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
1283, 1290 (Ind. 2014). Here, the record demonstrates that Mother did not
make even a modicum of effort to alleviate DCS’s concerns for the safety and
supervision of the Child. Rather, Mother’s drug screens were invariably
positive and reflected increasing levels of substance abuse. While we empathize
with Mother’s situation, and despite DCS’s urging and help, Mother never
enrolled in a pain management program but rather chose to self-medicate in an
unsafe manner. Accordingly, we agree with the trial court that the Child needs
supervision that he is unlikely to receive without coercive intervention by the
State.
CONCLUSION
[17] Based on the foregoing, we hold that the trial court’s order, adjudicating Child
as a CHINS, is not clearly erroneous.
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[18] Affirmed.
[19] Vaidik, C. J. and Kirsch, J. concur
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