MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Mar 09 2017, 7:54 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
Bryan M. Abell Curtis T. Hill, Jr.
Clark County Public Defender Attorney General of Indiana
Jeffersonville, 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 R.Y. and B.H. March 9, 2017
(Minor Children) Children in Court of Appeals Case No.
Need of Services, 10A01-1608-JC-1851
Appeal from the Clark Circuit
S.H., Court
Appellant-Respondent, The Honorable Vicki L.
Carmichael, Judge
v.
The Honorable Joni L. Grayson,
Indiana Department of Child Magistrate
Services, Trial Court Cause Nos.
10C04-1603-JC-33 and
Appellee-Petitioner. 10C04-1603-JC-34
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Najam, Judge.
Statement of the Case
[1] S.H. (“Mother”) appeals the trial court’s adjudication of two of her minor
children, R.Y. and B.H. (“the Children”),1 as children in need of services
(“CHINS”). Mother raises four issues for our review, which we consolidate
and restate as whether the trial court’s judgment is clearly erroneous. We
affirm.
Facts and Procedural History
[2] In March of 2017, Mother lived with her boyfriend, C.G.,2 at his residence.
Mother lived there with three of her children—the Children and infant K.H.—
as well as a minor child of C.G.’s. On March 17, K.H. died of sudden infant
death syndrome.
[3] The Indiana Department of Child Services (“DCS”) began an investigation into
K.H.’s death. Pursuant to that investigation, Mother submitted to a drug
screen. She tested positive for amphetamines and methamphetamines.
[4] Around that same time, Charlestown Police Department Detective Tejuan
Johnson conducted two controlled drug buys at C.G.’s residence. Detective
1
The Children have different fathers, but neither father participates in this appeal.
2
C.G. is not the father of either of the Children.
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Johnson then obtained a search warrant for the residence, which he executed
on March 26 around 11:00 p.m.
[5] In executing the warrant, Detective Johnson discovered the Children—R.Y.
was fourteen years old and B.H. was eight years old—alone inside the
residence. The Children informed the officers that Mother and C.G. had gone
to the store. Also inside the residence, the officers discovered
methamphetamine and paraphernalia in the bedroom that Mother and C.G.
had shared.
[6] While officers were searching the residence, L.Y., the father of R.Y.,
approached the residence from across the street. L.Y. told Detective Johnson
that he was there to decorate Easter eggs. However, Detective Johnson knew
that C.G. had a “no trespass warning issued” against L.Y. and, as such,
Detective Johnson arrested L.Y. for violating that order. Tr. Vol. 2 at 8.
During L.Y.’s encounter with the officers, he “never acknowledged himself as
the babysitter” for the Children. Id. at 22.
[7] Officers repeatedly attempted, over several hours, to have Mother take custody
of the Children, but she “refused” and said she instead was going to get a
lawyer in light of the apparent allegations of possession of methamphetamine
and paraphernalia. Id. at 10. C.G. similarly went “on the run.” Id. at 14.
Officers took custody of the Children and informed DCS. The Children’s
maternal grandmother eventually picked the Children up from the police station
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around 5:00 a.m. on March 27. Eventually, DCS placed R.Y. in the care of her
maternal grandmother and B.H. in the care of her father.
[8] The DCS alleged the Children were CHINS. At an ensuing fact-finding
hearing, Mother appeared, even though she was incarcerated, 3 and
acknowledged that she could use substance abuse treatment and relapse
prevention services. Mother also asserted that she had left the residence with
C.G. on March 26 to go to the store and that, while she was there, C.G. had left
the store and she had to go find him, which prevented her from taking custody
of the Children after police had arrived at the residence. Mother further
testified that she had left L.Y. at the residence as a babysitter for the Children.
The trial court expressly found that Mother’s testimony was not credible. The
court also heard testimony from Detective Johnson, on which the court relied
when it adjudicated the Children to be CHINS. Subsequently, the court
entered its dispositional orders with respect to each of the Children. This
appeal ensued.
Discussion and Decision
[9] Mother appeals the trial court’s adjudication of the Children as CHINS.
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
3
On appeal, Mother says she had been released from incarceration by the time of the later dispositional
hearing, but the court’s dispositional order says otherwise, and Mother cites no evidence in the record to
support her statement. See Appellant’s App. Vol. 2 at 39.
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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. DCS has
the burden in the trial court to prove by a preponderance of the evidence that a
child is a CHINS. Ind. Code § 31-34-12-3 (2016); Davis v. Marion Cty. 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 on
appeal, 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.
[10] 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 R. 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).
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[11] On appeal, Mother asserts that her case is “substantially similar” to Perrine v.
Marion County Office of Child Services, 866 N.E.2d 269 (Ind. Ct. App. 2007). In
Perrine, mother was arrested as part of a routine probation sweep, which located
paraphernalia commonly used for methamphetamine consumption in the
bedroom of a houseguest. Mother admitted to using methamphetamine a few
days prior to the probation sweep. As a result of her arrest, DCS filed a petition
alleging her fourteen-year-old daughter was a CHINS based on mother’s failure
to provide her child with a safe and stable home, free from drug use and
neglect. The trial court found the child to be a CHINS. In reviewing the
evidence on appeal, we held that the evidence did not support a finding that
mother used methamphetamine in front of her daughter. Id. at 276. We
reversed, stating that a “single admitted use of methamphetamine, outside the
presence of the child and without more, is insufficient to support a CHINS
determination.” Id. at 277.
[12] Perrine is plainly inapposite to the instant facts. Here, the evidence most
favorable to the trial court’s judgment demonstrates each of the following facts:
Mother had tested positive for amphetamines and methamphetamines on
March 18, 2016, one day after K.H.’s death;
Mother lived at C.G.’s residence with the Children;
Detective Johnson had conducted two controlled drug buys at that
residence around the time of K.H.’s death;
On March 26, around 11:00 p.m., Detective Johnson executed a warrant
to search the residence and discovered methamphetamine and
paraphernalia in a bedroom;
Detective Johnson also discovered the Children home alone;
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Mother refused to take custody of the Children following the execution
of the search warrant, and the Children remained in the custody of the
police until about 5:00 a.m. the next day;
Mother was incarcerated at the time of the fact-finding hearing;
Mother admitted to the trial court that she needs substance abuse
treatment and relapse prevention services.
[13] Thus, unlike in Perrine, the facts here support the trial court’s judgment that the
Children’s mental or physical conditions were seriously endangered by
Mother’s inability, refusal, or neglect to supply necessary care, shelter, or
supervision, and that the Children need care that they are not receiving and that
is unlikely to be provided without the coercive intervention of the court. See
I.C. § 31-34-1-1. Indeed, Mother’s arguments to the contrary, and her
challenges to several facts found by the trial court, simply disregard the
evidence most favorable to the trial court’s judgment and seek to have this court
substitute Mother’s preferred version of the facts in place of those most
favorable to the trial court’s judgment. We will not do so. We reject Mother’s
arguments on appeal and affirm the court’s adjudication that the Children are
CHINS.
[14] Affirmed.
Bailey, J., and May, J., concur.
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