In the Matter of: S.T. and D.T. (Minor Children) Children in Need of Services and K.T. (Mother) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Mar 07 2018, 7:40 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 Anna Onaitis Holden Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of: March 7, 2018

S.T. and D.T. (Minor Children) Court of Appeals Case No. 49A05-1709-JC-2159 Children in Need of Services Appeal from the Marion Superior and K.T. (Mother), Court Appellant-Defendant, The Honorable Marilyn A. Moores, Judge v. The Honorable Jennifer Hubartt, Judge Pro Temp Indiana Department of Child The Honorable Beth Jansen, Services, Magistrate Appellee-Plaintiff Trial Court Cause Nos. 49D09-1702-JC-634, 49D09-1702- JC-635

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Altice, Judge.

Case Summary [1] K.T. (Mother) appeals from the trial court’s order adjudicating her children to

be Children in Need of Services (CHINS). On appeal, Mother argues that some

of the trial court’s findings are clearly erroneous and that its judgment is not

supported by sufficient evidence. [2] We affirm.

Facts & Procedural History [3] Mother has two children; S.T., born in September 2014, and D.T., born in

March 2016 (collectively, the Children). This case marks the third time in the

Children’s short lives that the family has come to the attention of the

Department of Child Services (DCS). DCS first became involved shortly after

S.T.’s birth, when Mother admitted to using marijuana during her pregnancy.

Mother agreed to an informal adjustment and was ordered to complete a

substance abuse assessment and complete all resulting treatment

recommendations. Mother failed to complete the substance abuse assessment,

but the informal adjustment was nevertheless closed. [4] DCS conducted a second investigation shortly after D.T.’s birth because

Mother had again used marijuana during her pregnancy. The investigation

culminated in a CHINS finding with respect to both of the Children following

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Mother’s admission that the Children were CHINS because she “need[ed]

assistance providing a safe, stable, and appropriate living environment free from

substance abuse.” Exhibit Volume at 5. The Children remained in Mother’s

care, and Mother was ordered to participate in home-based therapy and case

management. Mother completed services and the CHINS case was closed. [5] DCS began its third investigation in February 2017 after receiving an

anonymous report concerning Mother and the Children. A DCS assessment

worker spoke to Mother at the hotel where she was residing with the Children,

and Mother denied the allegations in the anonymous report. Mother did,

however, admit to using marijuana. As a result, DCS filed a petition alleging

that the Children were CHINS, and the trial court ordered the Children

removed from Mother’s care. Thereafter, Mother exercised extended daily

visitation with the Children in her home with pop-in supervision from a home-

based case manager. [6] A fact-finding hearing was conducted on June 15, 2017, and the trial court

issued its order finding the Children to be CHINS on August 24, 2017. A

dispositional hearing was held on August 24, 2017, and the trial court issued its

dispositional order the same day. Mother now appeals. Additional facts will be

provided as necessary.

Discussion & Decision [7] On appeal, Mother challenges some of the trial court’s findings of fact, as well

as its determination that the Children are CHINS. Where, as here, a trial court

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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 directly or by

inference, and a judgment is clearly erroneous if it relies on an incorrect legal

standard. Id. While we defer to the trial court’s findings of fact, we do not do

so as 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. [8] We first address Mother’s arguments that certain findings of the trial court are

clearly erroneous. Mother first challenges the trial court’s finding that “Mother

had submitted to drug testing and she disputes the results.” Appellant’s Appendix

at 145. Mother concedes that she disputed the results of one drug screen, but

she argues that the trial court’s finding is misleading because it suggests that she

disputed the results of multiple drug screens. In other words, Mother does not

dispute the finding itself, but its implication as she perceives it. This is not

enough to establish that the finding was clearly erroneous. The record

establishes that Mother disputed the results of at least one drug screen by

claiming that the sample could not have been hers because it was negative for

certain prescribed medication she had been taking at the time. This evidence

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was sufficient to support the trial court’s finding that Mother had submitted to

drug testing but disputed the results. [9] Mother also challenges two of the trial court’s findings concerning the impact of

her substance abuse on the Children. Specifically, the trial court found that

“Mother has a history of drug use and that drug use has negatively impacted

her ability to parent.” Id. at 145. The trial court further found that “[d]ue to

repeated involvement with this Court and DCS, the Court finds that Mother’s

substance abuse issues have yet to be successfully treated and pose a threat to

the [C]hildren.” Id. According to Mother, there is no evidence in the record to

support a finding that Mother’s marijuana use negatively affected her ability to

parent or posed a threat to the Children. We disagree. [10] In a previous proceeding, Mother admitted that her drug use negatively

impacted her ability to parent. Specifically, she admitted that the Children were

CHINS because she required assistance to provide them with a safe, stable, and

appropriate living environment free from substance abuse. Moreover, Mother

has never completed a substance abuse assessment or treatment, and she did

not consistently submit to random drug screens during the DCS investigation in

this case. At the fact-finding hearing, Mother testified that she had previously

used marijuana to cope with stress and prevent stress-related seizures, but that

she no longer needed marijuana because she had begun using “these little

Chinese balls that you put in your hand” to relieve stress. Transcript at 33. The

trial court specifically found that Mother’s testimony that she had stopped using

drugs was not credible. Being in the care of a parent who regularly uses illegal

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drugs to cope with stress presents an obvious risk to a child, both because an

intoxicated parent cannot provide adequate supervision and because the parent

is at risk for arrest and incarceration. All of this evidence supports the trial

court’s findings that Mother’s drug use has negatively impacted her ability to

parent and poses a risk to the Children. [11] Mother also challenges the trial court’s finding that “Mother acknowledges that

she recommended that the [C]hildren be put in the care of an adult and they

were then injured by that adult.” Appellant’s Appendix at 145. Again, Mother

does not challenge the finding itself, but its perceived implication. Mother does

not dispute that DCS placed the Children with her friend, Kierra Hutchinson,

at her request. Nor does Mother dispute that the Children suffered injuries

while in Hutchinson’s care, necessitating their removal and placement with a

different caregiver. Instead, Mother argues that the trial court’s finding suggests

Mother exercised poor judgment by trusting Hutchinson, an assertion she

claims is not supported by the evidence. But the trial court made no specific

finding that Mother was in any way responsible for the injuries the Children

suffered in Hutchinson’s care, and we decline to look beyond the language of

the finding itself. When taken at face value, the trial court’s finding that the

Children were injured while in the care of an individual Mother recommended

is clearly supported by the evidence. [12] We now turn our attention to Mother’s argument that the trial court’s CHINS

determination in not supported by sufficient evidence. “Because a CHINS

proceeding is a civil action, the State must prove by a preponderance of the

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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). [13] In this case, DCS alleged that the Children were CHINS pursuant to Ind. Code

§ 31-34-1-1, which provides that a child under the age of eighteen is a CHINS

under the following circumstances:

(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.

[14] Mother argues that the record is devoid of evidence to support trial court’s

finding that the Children’s physical or mental conditions were seriously

impaired or endangered as a result of Mother’s marijuana use. On appeal, she

likens the circumstances of this case to those presented in In re K.S., 78 N.E.3d

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740 (Ind. Ct. App. 2017), and In re S.M., 45 N.E.3d 1252 (Ind. Ct. App. 2015),

both of which we find distinguishable. [15] In K.S., this court reversed a CHINS determination based on a mother’s

marijuana use and allegedly unstable housing. 78 N.E.3d at 744. In doing so,

the court reasoned that the mother had admitted to using marijuana two

months before the child’s birth to increase her appetite during pregnancy, but

there was no evidence that this single use of marijuana had any negative impact

on the child. Id. at 745. The court further explained that the trial court’s

finding that the mother lacked stable housing was unsupported by the evidence.

Id. [16] In this case, on the other hand, Mother had prior DCS contacts, including a

prior CHINS adjudication, based on her use of marijuana during both of her

pregnancies.1 Mother admitted in the previous CHINS case that she was

unable to provide the Children with a safe and stable environment free of

substance abuse without the assistance of DCS. Mother participated in some

services during the previous CHINS case, but she has nevertheless continued to

use marijuana. [17] In S.M., this court reversed a CHINS determination based in part on the

mother’s use of marijuana while pregnant. 45 N.E.3d at 1253-54. In finding

1 On appeal, Mother seems to suggest that the evidence established that she smoked marijuana during her first pregnancy only. We note, however, that Mother testified that both of the prior DCS interventions resulted from her marijuana use while pregnant.

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the evidence insufficient to support the CHINS determination, this court noted

that the mother had a history of sporadic marijuana use and prior DCS

substantiations. Id. at 1256. The court noted further, however, that every drug

screen the mother provided during the CHINS case was negative and that the

mother had participated in a substance abuse assessment and no treatment was

recommended as a result. Id. The court also noted that there was no evidence

contradicting the mother’s testimony that she had not known she was pregnant

when she used marijuana and that she had stopped using marijuana as soon as

she realized she was pregnant. Id. [18] Unlike the mother in S.M., Mother has not undergone a substance abuse

assessment, and she did not consistently submit to random drug screens while

the CHINS petition in this case was pending. Further, the trial court

specifically found Mother’s testimony that she had stopped using marijuana to

be lacking in credibility. [19] Mother used marijuana during both of her pregnancies and she admitted in the

previous CHINS proceeding that she needed assistance in providing the

Children with a safe, stable, and appropriate living environment free from

substance abuse. Despite her two prior contacts with DCS, Mother has

continued to use marijuana. It is of particular concern that Mother has never

completed a substance abuse assessment and failed to consistently submit to

drug screens during the pendency of the CHINS petition in this case. We also

note that Mother testified that she relied on marijuana to cope with stress so

severe that it caused her to suffer seizures, but that she no longer needed

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marijuana because she was using “Chinese balls” to relieve her stress.

Transcript at 33. The trial court did not find Mother’s testimony that she had

stopped using drugs to be credible. Mother’s dependence on illegal drugs to

manage her apparently extreme levels of stress, coupled with the Children’s

very young ages, support the trial court’s finding that the Children’s well-being

was seriously endangered so as to support the CHINS determination. [20] Judgment affirmed. [21] May, J. and Vaidik C.J., concur.

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