In the Matter of: S.M. (Minor Child), and D.M. (Father) v. The 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 May 04 2017, 9:02 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 Justin L. Froedge Curtis T. Hill, Jr. Goebel Law Office Attorney General of Indiana Crawfordsville, Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of: May 4, 2017

S.M. (Minor Child), Court of Appeals Case No. 54A01-1612-JC-2795 And Appeal from the Montgomery D.M. (Father), Circuit Court Appellant-Respondent, The Honorable Harry A. Siamas, Judge v. Trial Court Cause No. 54C01-1606-JC-190 The Indiana Department of Child Services, Appellee-Petitioner.

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STATEMENT OF THE CASE [1] Appellant-Respondent, D.M. (Father), appeals the trial court’s Order

adjudicating his minor child, S.M. (Child), as a Child in Need of Services

(CHINS). 1 [2] We affirm.

ISSUES [3] Father presents us with two issues on appeal, which we restate as:

(1) Whether the trial court abused its discretion by admitting certain exhibits

pertaining to Father’s oral drug screens; and

(2) Whether there was sufficient evidence to support the trial court’s

determination of the Child as a CHINS.

FACTS AND PROCEDURAL HISTORY [4] S.D. (Mother) and Father are the biological parents of S.M., born on February

16, 2016. Since the birth of S.M., the parents had been residing together in

Crawfordsville, Indiana. On June 13, 2016, the Indiana Department of Child

Services (DCS) received a report regarding the Child, alleging that both parents

were abusing substances while caring for S.M. and that Father was recently

1 Mother is not participating in this appeal. However, facts pertaining to Mother are included where necessary for our decision.

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released from jail where he had been incarcerated on a probation violation due

to a failed drug screen for methamphetamine. [5] Upon receiving the report, J.T. Chadd, Family Case Manager with DCS (FCM

Chadd), made multiple attempts to contact the family. Eventually, on June 20,

2016, Father contacted FCM Chadd. That same day, FCM Chadd made an

announced visit to the residence to meet the parents and observe the Child.

Both parents denied the drug use and agreed to submit to oral drug screens, as

administered by FCM Chadd in their residence. Father confirmed that he was

recently released from jail, but denied the use of illegal substances. He

informed FCM Chadd that he had recently taken a drug screen for his

employer, which had tested negative. [6] Father’s oral drug screen, administered on June 20, 2016, returned positive for

morphine. On June 23, 2016, FCM Chadd and Father met at the family home

where Father continued to deny any drug use. In fact, Father alleged that

“someone he used to be friends with may have slipped something in his drink

because they were mad at him.” (Transcript p. 37). That same day, Father

agreed to take another oral drug screen, which returned positive for

hydrocodone, a medication for which Father presented a prescription. [7] On June 27, 2016, FCM Chadd met again with Father and Mother at the DCS

office to address the positive drug screen and to develop a plan for the safety of

the Child. Because Father reiterated that someone must have spiked his drink,

DCS restricted Father’s access to the home and the Child. Father agreed to

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remove himself from the home, so the Child could remain in the residence with

Mother. The following day, on June 28, 2016, the DCS filed its verified

petition alleging Child to be a CHINS due to the substance abuse of Child’s

parents. On June 29, 2016, the trial court ordered the Child’s continued

placement with Mother, while Father was ordered to remain outside the home. [8] On July 7, 2016, an oral drug screen was administered to Father at the DCS

office, which returned positive for amphetamine and hydrocodone. Father

provided a valid prescription for hydrocodone. David Fissell, Family Case

Manager with DCS (FCM Fissell), inherited the case from FCM Chadd on July

28, 2016. FCM Fissell recommended Father to participate at substance abuse

intake at Wabash Valley and the treatment plan associated with that, as well as

parenting classes, home based case management, and supervised visits. Father

“vehemently denied” needing parenting classes. (Tr. p. 67). However, Father

agreed to do the substance abuse intake and do the visits. Father completed the

intake at Wabash Valley, and it was recommended that he participate in the

intensive outpatient program and relapse prevention. An oral drug screen

conducted on July 28, 2016, by FCM Fissell returned positive for

amphetamine. [9] A drug screen performed on August 8, 2016, returned negative for drugs. At

the time, Father also expressed that in his opinion the recommendation for a

substance abuse program at Wabash Valley was “nonsense.” (Tr. p. 68). Two

days later, on August 10, 2016, FCM Fissell conducted a home visit with

Mother. During the visit, Mother informed FCM Fissell that Father abuses

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illegal substances. She advised FCM Fissell that “the morphine came from him

working on a truck in Indy and he was paid in heroin.” (Tr. p. 70). She also

admitted that Father’s positive screens for amphetamine came from using her

prescription drugs. [10] On August 19, 2016, Father returned for another oral drug screen. Father was

agitated because he believed FCM Chadd was tampering with his drug screens

and he wanted someone else to administer the tests. Father “believed that

[FCM Chadd] was actually on drugs and was tampering with his drug screen by

spitting in the drug screen himself because [FCM Chadd] is on drugs which was

making his drug screens test positive.” (Tr. p. 56). Father “brought in some

glue with him which was actually some kind of like rubber cement or some kind

of glue that he was requesting that he glue the label onto the drug screen with

that glue[.]” (Tr. p. 56). The drug screen returned positive for hydrocodone,

for which Father could not provide a prescription. Although Father initially

participated in supervised visitations with the Child, there had been one or two

cancellations and he had ceased all visits since September 21, 2016. [11] On October 19, 2016, the trial court conducted a fact finding hearing where

Mother entered an admission to DCS’s allegations. On November 10, the trial

court entered its Order, concluding Child to be a CHINS. The trial court

found, in pertinent part, that

Father has used controlled substances including methamphetamine, since the baby’s birth. The child needs sober

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caregivers or he is at risk. Parents will not participate in services without the coercive intervention of the court.

(Appellant’s Rec. Appendix, p. 13). [12] Father now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION I. Admission of Evidence

[13] First, Father contends that the trial court abused its discretion when it admitted

the results of his oral drug screen over his objection as these drug screens were

not administered in accordance with the protocol for such screens. The

admission of evidence rests within the sound discretion of the trial court and is

reviewed on appeal for an abuse of discretion. In re Involuntary Termination of

Parent Child Relationship of A.H., 832 N.E.2d 563, 567 (Ind. Ct. App. 2005). An

abuse of discretion occurs when the trial court’s decision is clearly against the

logic and effect of the facts and circumstances before it. Id. [14] When an exhibit is offered for an evidentiary purpose, the exhibit must be

separately authenticated pursuant to Indiana Evidence Rule 901. The Rule

provides that “[t]he requirement of authentication or identification as a

condition precedent to admissibility is satisfied by evidence sufficient to support

a finding that the matter in question is what its proponent claims.” Absolute

proof of authenticity is not required. In re Paternity of B.B., 1 N.E.3d 151, 156

(Ind. Ct. App. 2013). When evidence establishes a reasonable probability that

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an item is what it is claimed to be, the item is admissible. Id. Ind. Evid. R.

901(b) provides “[b]y way of illustration only, and not by way of limitation, the

following are examples of authentication or identification conforming with the

requirements of this rule” and includes “(9) Evidence About a Process or

System.” [15] During the evidentiary hearing, Bridget Lemberg (Lemberg), lab director at

Forensic Fluids Laboratories, testified to the process used when administering

oral drug screens. She explained:

A test kit consists of a piece of paper called the chain of custody, a clear plastic specimen bag that’s tamper proof when it’s sealed and a collection device that’s sealed. The donor is instructed to [] open the collection device. The donor is instructed to put the cotton pad in their mouth. First there’s a ten minute observation period to make sure there isn’t anything in the donor’s mouth. The donor is instructed to place the cotton pad in their mouth to saturate the cotton pad, it has a plastic handle. Then to take it out after it is saturated by the handle, place it in a tube of buffer which keeps it stable for twenty-three days, place the lid on it and then place [sic] there’s evidence sealing tape that’s on the paperwork or the chain of custody that has a spot for the donor name and the date and it as a specimen ID on it. That sealed sample tube then goes into the clear plastic specimen bag, the paperwork or the chain of custody that the caseworker and the donor have signed and dated also goes into the clear plastic specimen bag then goes into a UPS bag that gets sealed and delivered to the laboratory the next day.

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(Transcript p. 15). When DCS offered exhibits two, three, four, five, and six,

containing Father’s drug screen results, into evidence, Father objected based on

a lack of foundation to authenticate the exhibits. [16] With respect to exhibits two, three, and four, containing Father’s drug screens

collected on June 20, June 23, and July 7, 2016, by FCM Chadd, Father

asserted that FCM Chadd had not abided by the ten-minute observation period

necessary to ensure the donor’s mouth is empty. During his testimony, FCM

Chadd stated that prior to administering the oral drug screen, he had observed

Father “for twenty to thirty minutes[.]” (Tr. p. 33). Accordingly, as the

procedure was established for exhibits two, three, and four, the trial court

properly admitted these exhibits over Father’s objection. [17] Next, DCS offered exhibit six, which contained Father’s drug screen collected

on August 19, 2016, by DCS Supervisor Harmony Jenson (Supervisor Jenson).

Father objected, again claiming that the ten-minute observation period had not

been followed. Supervisor Jenson testified that when people show up at the

DCS office for a drug screen, “you just tell the folks to sit there in the waiting

room . . . like ten or fifteen minutes” to make sure that they do not have

anything in their mouth. (Tr. pp. 52-53). Supervisor Jenson clarified that they

are observed by the clerk working the front desk that “they’re not going in and

out of our bathroom[.]” (Tr. p. 53). She added that there was no concern that

Father had tainted his sample by having something in his mouth. After hearing

the testimony, the trial court found that the procedure was substantially

followed and admitted the exhibit. We agree.

Court of Appeals of Indiana | Memorandum Decision 54A01-1612-JC-2795 | May 4, 2017 Page 8 of 13 [18] Lastly, with respect to exhibit five, Father’s July 28, 2016 drug screen

administered by FCM Fissell, Father objected and argued that FCM Fissell had

tainted the sample by handling “the vial or the tube in which the swab is

inserted and taken out[.]” (Tr. p. 64). During the hearing, FCM Fissell

explained that “[s]ometimes I do I do open the vial, it twists off. Sometimes

when they have the swab in the mouth and they say they’re done you know

trying to do that one handed can be difficult so I will hold the bottom of the vial

and twist the top off. I do not touch the inside of the vial or anything.” (Tr. p.

63). After hearing this testimony, the trial court admitted exhibit five. We

agree with the trial court’s decision. Because FCM Fissell complied

substantially with the procedure and merely twisted the top of the vial without

touching the inside, he did not contaminate the sample. Accordingly, all

contested exhibits were properly authenticated and admitted.

II. CHINS Determination

A. Standard of Review

[19] DCS bears the burden of proving that a child is a CHINS by a preponderance of

the evidence. In re K.B., 24 N.E.3d 997, 1001 (Ind. Ct. App. 2015). In

reviewing a CHINS determination, our court does not reweigh evidence or

assess witness credibility. Id. We consider only the evidence in favor of the

trial court’s judgment, along with any reasonable inferences derived therefrom.

Id. Further “a CHINS adjudication may not be based solely on conditions that

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no longer exist. The trial court should also consider the parents’ situation at the

time the case is heard.” In re R.S., 987 N.E.2d 155, 159 (Ind. Ct. App. 2013). [20] When a trial court, as here, enters 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. In re K.B., 24 N.E.3d at 1001. In

our review, we first consider whether the evidence supports the factual findings

and 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.” Id. at 1002. A judgment is clearly erroneous if it

relies on an incorrect legal standard. Id. We give due regard to the trial court’s

ability to assess the credibility of the witnesses. T.R. 52(A). While we defer

substantially to findings of fact, we do not do so for conclusions of law. In re

K.B., 24 N.E.3d at 1002.

B. Sufficiency of the Evidence

[21] The purpose of the CHINS adjudication is to “protect the children, not punish

parents.” In re A.I., 825 N.E.2d 798, 805 (Ind. Ct. App. 2005), trans. denied.

When it is in the child’s best interest, the State may exert its parens patriae power

and intervene to safeguard the child’s welfare. In re K.B., 24 N.E.2d at 1002.

However, trial courts must balance the child’s needs against the due process

rights of the parents. Id. To support a CHINS adjudication, the CHINS statute

provides that DCS must establish that, before the child becomes eighteen years

of age:

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(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. “That final element guards against unwarranted State

interference in family life, reserving that intrusion for families ‘where parents

lack the ability to provide for their children,’ not merely where they ‘encounter

difficulty in meeting a child’s needs.’” In re S.D., 2 N.E.3d 1283, 1287 (Ind.

2014). [22] Father now challenges the sufficiency of the DCS’s evidence supporting the

conclusion that the Child is a CHINS. In essence, Father asserts that “[o]verall,

the screens that the DCS has amassed do not show an abuse of substances by

the Appellant, as they alleged in their petition, and therefore, do not meet their

burden of proof in this case.” (Appellant’s Br. p. 11). He likens his situation to

B.N. v. Marion Cnty., Dept. of Child Servs., 969 N.E.2d 1021 (Ind. Ct. App. 2012),

where we reversed the trial court’s CHINS determination. We deemed it

important that although the mother had been charged with possession of

oxycodone and marijuana, the mother presented DCS with current

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prescriptions for oxycodone and Xanax. Id. at 1023. She voluntarily submitted

to drug screens, which all tested negative, and she voluntarily participated in

home-based services. Id. The mother was employed and had taken care of an

abusive situation. Id. at 1024. Accordingly, as the mother had been proactive

in remedying her situation and participating with DCS, we concluded that there

was no evidence to support the trial court’s determination. Id. at 1026. [23] We find B.N. to be inapposite to the case at hand. Unlike in B.N., Father’s drug

screens were not all negative. In fact, Father had four positive drug screens for

which he was unable to provide valid prescriptions. Although Father initially

seemed receptive to participating in services, after an initial intake assessment at

Wabash Valley, he changed his mind, determining the substance abuse

determination to be “nonsense.” (Tr. p. 68). He also “vehemently denied”

needing parenting classes and refused to participate. (Tr. p. 67). Even though

Father initially participated in supervised visitations with Child, he had not

visited S.M. in almost a month prior to the fact-finding hearing. [24] The CHINS statute does not require the trial court and DCS to wait until a

child is physically or emotionally harmed to intervene; rather, a child may be

determined to be CHINS if his or her physical or mental condition is

endangered. In re R.P., 949 N.E.2d 395, 401 (Ind. Ct. App. 2011). Children

who are “endangered by parental action or inaction” are protected under the

CHINS statute. In re A.H., 913 N.E.2d 303, 306 (Ind. Ct. App. 2009). Here, we

conclude that Father’s positive drug screens and his refusal to participate in

services, as well as his recent abandonment of the supervised visitations,

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highlights his inability or refusal to properly care for the Child. See, e.g., In re

K.B., 24 N.E.2d at 1007. Accordingly, we cannot say that the trial court’s

adjudication of the Child as a CHINS is clearly erroneous.

CONCLUSION [25] In light of the foregoing, we conclude that the trial court’s Order adjudicating

Child as a CHINS is not erroneous. [26] Affirmed. [27] Najam, J. and Bradford, J. concur

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