In the Matter of E.P. & G.P. (Minor Children), Children in Need of Services, and J.P. (Father) 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 Oct 31 2018, 9:18 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Deidre L. Monroe Curtis T. Hill, Jr.
Public Defender’s Office Attorney General
Gary, Indiana
David E. Corey
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of E.P. & G.P. October 31, 2018
(Minor Children), Children in Court of Appeals Case No.
Need of Services, and 18A-JC-1344
J.P. (Father), Appeal from the Lake Superior
Court
Appellant-Respondent,
The Honorable Thomas P.
v. Stefaniak, Jr., Judge
The Honorable Matthew B.
Indiana Department of Child Gruett, Magistrate
Services, Trial Court Cause Nos.
45D06-1710-JC-1126, - 1127
Appellee-Petitioner

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-1344 | October 31, 2018 Page 1 of 7
 Case Summary
[1] J.P. (“Father”) appeals the trial court’s determination that his minor children

E.P. and G.P. (“the Children”) are children in need of services (“CHINS”).1

He contends that the evidence was insufficient to support the trial court’s

decision. Finding the evidence sufficient and concluding that the trial court’s

decision is not clearly erroneous, we affirm.

Facts and Procedural History
[2] The Indiana Department of Child Services (“DCS”) filed a petition alleging the

Children were CHINS after reports that the Children and their parents were

living in an uninhabitable home and that both parents were using illegal drugs.

The Children were removed from their parents’ care and placed with their

grandparents. After detention and initial hearings in the matter, the trial court

entered denials on behalf of both parents on November 21, 2017. The trial

court held a factfinding hearing on April 3, 2018, at which Mother appeared

with counsel and Father appeared pro se. Thereafter, the trial court found in

relevant part as follows:

The evidence presented in the instant matter establishes that the
parents have been without suitable and/or stable housing since
the inception of the case in October of 2017. It is uncontested
that the home was without electric and gas utility services. Also,
the conditions existing within the family’s home in Highland
were observed to be deplorable, thereby necessitating the

1
The Children’s mother, M.S. (“Mother”), does not participate in this appeal.

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 involvement of the Town of Highland. The home had fallen into
such disrepair that the parents had to move out to allow for
necessary repairs and reconnection of utility services. The
parents were unable to provide sufficient explanation for either
the existence of the deplorable conditions within the home or the
absence of necessary utility services. To this date, the parents
have not established any other stable residence, which would
allow for the children’s return thereto. The parents have
continued to offer claims of securing another residence; however,
no objective evidence thereof has been provided. Additionally,
despite testimony of the parents’ efforts, it has yet to be shown
that the residence in Highland is cured of the substandard living
conditions. The issue of unsuitable/unstable housing continues
to be unresolved.

Furthermore, both parents have a history of involvement with
DCS due to substance abuse and poor living conditions within
the home. Most recently, on December 12, 2017, both Mother
and Father tested positive for opiate substances, which are
metabolites of heroin. Neither parent was able to provide an
adequate explanation for said drug screen results. Additionally,
in calendar year 2018, Father has received multiple criminal
charges relating to possession of drugs and/or illegal substances.
In March of 2018, Father was arrested and spent time in jail on
drug related charges. It is apparent that Mother and Father
continue to struggle with drug possession and/or use, which
impedes their ability to discharge their parental responsibilities.

The parents’ inability to secure and/or maintain safe, suitable,
and stable housing poses a threat to the health, safety, and
welfare of the children. The parents’ continued struggles with
substance abuse further magnify their inability to provide the
necessities of daily living for the children.

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 Appellant’s App. Vol. 2 at 2-3. Accordingly, the trial court adjudicated the

Children as CHINS and set the matter for disposition hearing. The trial court

entered its dispositional decree on May 8, 2018. Father now appeals.

Discussion and Decision
[3] Indiana Code Section 31-34-1-1 provides that a child is a CHINS if, before the

child becomes eighteen years of age, “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

“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.” DCS has the burden of proving that a child is a

CHINS by a preponderance of the evidence. In re Des.B., 2 N.E.3d 828, 835-36

(Ind. Ct. App. 2014) (citing Ind. Code § 31-34-12-3).

[4] “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.” Id. at 836. This Court will not

reweigh the evidence or judge witness credibility. In re M.W., 869 N.E.2d 1267,

1270 (Ind. Ct. App. 2007). Where, as here, a trial court enters specific findings

and conclusions, we apply a two-tiered standard of review. Bester v. Lake Cty.

Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine

whether the evidence supports the findings, and second, we examine whether

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 the findings support the judgment. Id. We will set aside the trial court’s

judgment only if it is clearly erroneous. Id.

[5] In challenging the sufficiency of the evidence that the Children are CHINS,

Father’s argument is incredibly brief, and he appears to challenge only two of

the trial court’s specific findings. Accordingly, the unchallenged findings stand

as correct. McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997)

(unchallenged trial court findings are accepted as true). Father argues that the

court’s findings that the parents “were unable to provide sufficient explanation

for … the existence of the deplorable conditions within the home” and that “the

issue of unsuitable/unstable housing continues to be unresolved” were

unsupported by the evidence. Appellant’s App. Vol. 2 at 2. Specifically, he

complains that the trial court failed to “t[ake] into account” that the home was

not owned by the parents and that, at the time of the factfinding hearing, “work

was being done on the home” to correct some of the conditions. Appellant’s

Br. at 8. Father fails to explain, however, how the ownership of the home

where the Children were undisputedly residing excuses its deplorable condition,

and he further fails to explain how the fact that work is now being done on the

home necessitates a finding that the issues with habitability have been resolved.

In essence, Father simply requests us to reweigh the evidence, and we will not.

Ample evidence was presented to support the trial court’s ultimate conclusion

that the shelter being supplied to the Children by the parents was, and continues

to be, unsuitable and inadequate for the Children.

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[6] Father also implies that any findings that his past struggles with substance

abuse currently affect his ability to parent the Children are unsupported by the

evidence because there was evidence presented that he is taking methadone to

address his problems, and that the methadone in his system was within

“therapeutic levels” on his December 2017 drug screen. Id. at 9. Father

ignores that, in addition to testing positive for methadone on his latest drug

screen, he also tested positive for amphetamine, heroin, and morphine. Again,

ample evidence supports the trial court’s findings regarding Father’s continued

struggles with substance abuse.

[7] Finally, Father maintains that he “can do whatever is necessary for his family,”

and therefore the coercive intervention of the court is unnecessary. Id.

Regarding the need for the court’s coercive intervention, a trial court necessarily

considers a parent’s “past, present, and future ability to provide sufficient care”

during a CHINS adjudication. Matter of J.L.V. Jr., 667 N.E.2d 186, 190-91 (Ind.

Ct. App. 1996); see also In re D.J. v. Indiana Dep’t of Child Servs., 68 N.E.3d 574,

580 (Ind. 2017) (“When determining CHINS status under Section 31-34-1-1,

particularly the ‘coercive intervention’ element, courts should consider the

family’s condition not just when the case was filed, but also when it is heard.”).

Here, the trial court’s unchallenged findings demonstrate Father’s history of

parental deficiencies and substance abuse as well as his present inability to

provide sufficient care for the Children. Therefore, the trial court’s conclusion

that court intervention is necessary is supported by its findings and is not clearly

erroneous.

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[8] In sum, we will reverse a trial court’s CHINS adjudication “only upon a

showing of ‘clear error’—that which leaves us with a definite and firm

conviction that a mistake has been made.” Egly v. Blackford Cty. Dep't of Pub.

Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We find no such error here and

therefore affirm the trial court.

[9] Affirmed.

Najam, J., and Pyle, J., concur.

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