C.L. and J.L. v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 20 2016, 8:29 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Daniel C. Reuter Gregory F. Zoeller Nashville, Indiana Attorney General of Indiana

Kurt A. Young Robert J. Henke Nashville, Indiana Deputy Attorney General

James D. Boyer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

C.L. and J.L., April 20, 2016 Appellants-Defendants, Court of Appeals Case No. 07A04-1510-JC-1611 v. Appeal from the Brown Circuit Court Indiana Department of Child The Honorable Judith A. Stewart, Services, Judge Appellee-Plaintiff. Trial Court Cause No. 07C01-1505-JC-26, 07C01-1505- JC-27, 07C01-1505-JC-28

Altice, Judge. Court of Appeals of Indiana | Memorandum Decision 07A04-1510-JC-1611 | April 20, 2016 Page 1 of 10

Case Summary [1] C.L. (Mother) and J.L. (Father) (collectively, Parents) appeal the trial court’s

determination that their children are Children in Need of Services (CHINS).

Parents argue that the evidence was insufficient to support the CHINS

adjudication. [2] We affirm.

Facts & Procedural History [3] Parents are married and have three children, M.L., S.L., and H.L. (collectively,

Children), who were born in 2003, 2005, and 2008, respectively. In 2010,

Children were adjudicated CHINS and placed in foster care after law

enforcement discovered an active methamphetamine lab on the same property

where the family lived in a mobile home. Additionally, marijuana and drug

paraphernalia were found inside the home, and Parents both tested positive for

methamphetamine. As part of the dispositional order, Parents were ordered to

participate in marriage counseling and drug treatment. The CHINS case closed

in 2013 and Children were reunified with Parents. [4] On May 6, 2015, Parents, who at that time had been separated for about a

month, were involved in a domestic violence incident. Father came to visit

Mother at her mother’s home, and they spoke in a car in the driveway while

Children slept inside the house. Mother and Father got into a physical struggle

over a cell phone, during which Mother sustained a bruise on her chest. At

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some point, Father exited the car and Mother attempted to drive away, but

Father jumped onto the hood of the car and tried to break the window. Mother

drove away with Father still on the hood of the car, and Father fell off. Father’s

feet were seriously injured and he was admitted to the hospital for treatment.

When he arrived at the hospital, Father was under the influence of meth and in

possession of marijuana and a meth pipe. [5] On May 11, 2015, the Brown County Department of Child Services (DCS)

received a report concerning the May 6 domestic violence incident. On May

14, 2015, DCS received an additional report alleging that Parents were using

methamphetamine and marijuana. The next day, Family Case Manager

(FCM) Emily Bock met with Mother at her residence. Mother told FCM Bock

that Children were present at her mother’s house when the May 6 incident

occurred. Mother denied being under the influence of drugs or alcohol at the

time of the incident and stated that she had last used marijuana approximately

nine months before. Mother told FCM Bock that Father had recently broken a

window and kicked a door at their home. Mother stated that she would not be

allowing Father to return to the residence upon his release from the hospital.

Mother refused a drug screen and denied FCM Bock access to the residence on

that date. [6] FCM Bock returned to Mother’s home on May 27, 2015. This time, Mother

allowed FCM Bock access to the home, but she again refused a drug screen.

FCM Bock informed Mother that DCS was restricting Father’s contact with

Children and that failure to cooperate would result in Children’s removal from

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the home. Mother told FCM Bock that she understood and that she did not

know Father’s whereabouts. FCM Bock could not locate Father, but she was

able to get a message to him through family members about the initial hearing

scheduled for May 28, 2015. [7] Both Mother and Father appeared at the initial hearing. FCM Bock testified

concerning her investigation up until that point, and the trial court granted

DCS’s request to file a CHINS petition with respect to Children. The trial court

ordered that Children would remain in Mother’s care at that time and have

only supervised visitation with Father. [8] On June 9, 2015, DCS decided to remove Children from the home after

learning that Mother had, in violation of the trial court’s order, allowed Father

to move back into the home. When FCM Bock and her police escort arrived at

the home to remove Children, Mother admitted that Father had moved back in

so that they could work on their relationship. Mother also admitted that she

was aware that Father was not to have contact with Children unless supervised

by an individual approved by DCS. Mother and Father both refused drug

screens, and Mother told FCM Bock to go ahead and take Children. Children

were placed with their maternal aunt. [9] On June 11, 2015, DCS filed an amended CHINS petition and a Report of

Preliminary Inquiry. In the report, DCS indicated that Father had told FCM

Bock that Mother had been violent toward him on multiple occasions in the

past, and during the May 6 incident, she had ripped his shirt off and punched

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him in the face twice, breaking his nose. Father also told FCM Bock that he

smoked marijuana regularly, that he was high on meth when he was admitted

to the hospital, and that he and Mother had used meth together on May 4 or 5,

2015. A detention hearing was held, at which Parents denied the allegations set

forth in the CHINS petition. The trial court ordered Children’s continued

placement outside the home and ordered Parents to submit to random drug

screens. [10] A fact-finding hearing was held on July 1, 2015, at which Parents both testified.

Mother admitted to knowingly violating the trial court’s order by allowing

Father to move back in and stated that she did so because Children were very

upset and missing Father. Mother stated that she had used marijuana a few

months ago, but had not used any other illegal drugs for years. Mother testified

that she did not think there was anything wrong with smoking marijuana in the

garage while Children were in the house playing, and that Children would not

be impacted if she were arrested for using illegal drugs because she would just

bond out. Mother admitted that she had not complied with the court order to

submit to random drug screens because she did not think she should have been

ordered to do so. [11] At the fact-finding hearing, Father denied telling FCM Bock that Mother had

punched him in the face and broken his nose on May 6. He also denied telling

FCM Bock that he and Mother had used meth together or that he was high on

meth and in possession of marijuana and a meth pipe when he was admitted to

the hospital on May 6. Father admitted to using marijuana to cope with stress,

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but stated it had been two or three months since his last use. He stated that he

did not comply with the court order requiring him to participate in random

drug screens because “[i]t’s [his] right.” Transcript at 101. [12] FCM Bock testified that she had spoken to Parents about reunification services,

and they had told her that they did not want to be involved with DCS and

offered to give a family member temporary guardianship over Children. When

FCM Bock explained that DCS would not consent to this arrangement because

Children need permanency, Parents offered to voluntarily terminate their

parental rights to Children. At the conclusion of the evidence, the trial court

took the matter under advisement. [13] On July 9, 2015, the trial court issued its order adjudicating Children CHINS.

On September 8, 2015, the trial court issued its dispositional order requiring

Parents to participate in reunification services. Parents now appeal. Additional

facts will be provided as necessary.

Discussion & Decision [14] Where, as here, a juvenile 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 erroneous. Id. Findings are

clearly erroneous when the record contains no facts to support them either

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directly or by inference, and a judgment is clearly erroneous if it relies on an

incorrect legal standard. Id. While we defer to the juvenile court’s findings of

fact, we do not do so 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. [15] In this case, DCS alleged Children were CHINS pursuant to Ind. Code § 31-34-

1-1, which provides that a child under eighteen years of age is a CHINS if:

(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] “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).

Court of Appeals of Indiana | Memorandum Decision 07A04-1510-JC-1611 | April 20, 2016 Page 7 of 10 [17] In this case, the trial court determined that Children were CHINS because they

were seriously endangered as a result of Parents’ drug use and the domestic

violence in their relationship. On appeal, Parents argue that the trial court’s

finding of endangerment is not supported by sufficient evidence because there is

no indication that Parents ever used drugs or physically fought in the presence

of Children. Parents argue further that there is no indication that Children had

been impacted by or were even aware of any drug use or domestic violence. [18] We note, as did the trial court, that Children appear to be doing well.

However, DCS need not wait until a child is actually harmed to intervene;

rather, a child may be adjudicated a CHINS if his or her physical or mental

condition is endangered. I.C. § 31-34-1-1; K.B. v. Ind. Dep’t of Child Servs., 24

N.E.3d 997, 1003 (Ind. Ct. App. 2015). This court has held that a parent’s drug

use while caring for a child can support a CHINS determination, even when the

drug use does not occur in the child’s presence. In re J.L., 919 N.E.2d at 564.

This is so because when a caregiver is under the influence of drugs, a child is

“essentially abandoned . . . without any responsible supervision.” Id. In this

case, Children were previously adjudicated CHINS based on their exposure to

Parents’ illegal drug use, and Father told FCM Bock that he and Mother had

used meth together on May 4 or 5, 2015. Father also told FCM Bock that he

was high on meth when he was admitted to the hospital following the May 6

domestic violence incident. Furthermore, both Parents admitted to using

marijuana, and Mother testified that there was nothing wrong with smoking

marijuana in the garage while Children were inside the house playing.

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According to Mother, Children would not be harmed if she were arrested

because she would simply bond out. In light of these facts, we conclude that

the trial court’s finding that Children were seriously endangered by Parents’ use

of illegal drugs was supported by the evidence. [19] With respect to the domestic violence between Mother and Father, we note that

our Supreme Court has acknowledged that a child’s exposure to domestic

violence can support a CHINS finding. In re N.E., 919 N.E.2d at 106; see also In

re S.W., 920 N.E.2d 783, 789-90 (Ind. Ct. App. 2010) (affirming CHINS finding

based, in part, on child’s statement that domestic violence had been occurring

in the household). The trial court in this case acknowledged that there was no

evidence that Children actually witnessed the violence between Mother and

Father. However, the evidence presented at the fact-finding hearing supports a

conclusion that domestic violence is an ongoing problem in Parents’ marriage.

In addition to the May 6 incident, which took place outside the house where

Children were sleeping, Mother reported that Father had recently broken a

window and kicked a door at the home. Father reported that Mother punched

him in the face and broke his nose, and he further asserted that Mother had

been violent toward him on multiple occasions in the past. Even if we accept

Parents’ assertions that Children never directly witnessed the violence, Children

were nevertheless placed at risk due to the pattern of violence and volatility in

Parents’ relationship. Accordingly, the trial court’s finding that Children were

seriously endangered as a result of domestic violence is supported by the

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evidence. Based on the foregoing, we conclude that the trial court properly

found Children to be CHINS. [20] Judgment affirmed. [21] Bailey, J. and Bradford, J., concur.

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