In Re: the Matter of A.M. (Minor Child), A Child in Need of Services, and, J.J. (Mother) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 13 2018, 10:33 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kimberly A. Jackson Curtis T. Jill, Jr. Indianapolis, Indiana Attorney General of Indiana

David E. Corey Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re: the Matter of A.M. June 13, 2018 (Minor Child), Court of Appeals Case No. A Child in Need of Services, 17A-JC-3038 Appeal from the Knox Superior and, Court The Honorable Gara U. Lee, J.J. (Mother), Judge Appellant-Respondent, The Honorable J. David Holt, Senior Judge v. Trial Court Cause No. 42D01-1708-JC-143 The Indiana Department of Child Services, Appellee-Petitioner.

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Barnes, Judge.

Case Summary [1] J.J. (“Mother”) appeals the trial court’s order finding her child, A.M., to be a

child in need of services (“CHINS”). We affirm.

Issue [2] Mother raises one issue, which we restate as whether the evidence is sufficient

to support the trial court’s finding that A.M. is a CHINS.

Facts [3] Mother and T.M. (“Father”) are the parents of A.M., who was born in April

2017. On July 31, 2017, Mother and Father went to a hospital with three-

month-old A.M. They reported that they picked up a hitchhiker earlier in the

evening, that the hitchhiker rode in the backseat with A.M., that Father was

experiencing sweating, shaking, and hallucinations after taking a “pain pill”

given to him by the hitchhiker, and that they were concerned A.M. had been

given drugs by the hitchhiker. Appellant’s App. Vol. II p. 32. Shortly after

arriving at the hospital, Mother decided that A.M. was fine and attempted to

leave. She was stopped, and the hospital tested A.M.’s urine. His results

“came back clean.” Id. Father, on the other hand, tested positive for

methamphetamine, THC, opiates, and amphetamines. Mother refused to

participate in a drug screen.

Court of Appeals of Indiana | Memorandum Decision 17A-JC-3038 | June 13, 2018 Page 2 of 10 [4] The hospital contacted the Knox County Office of the Department of Child

Services (“DCS”). Mother told DCS that she was involved in a domestic

violence situation with Father. After DCS informed Mother that they were

going to detain A.M., Mother attempted to run out of the hospital while

holding him. Officers asked her to hand over the baby, but she held him tightly

while screaming profanities in the emergency room. Officers had to pry her

arms off A.M. Mother became aggressive with the officers, and she was

handcuffed and arrested. [5] DCS filed a petition alleging that A.M. was a CHINS. At the start of the fact-

finding hearing, Father stipulated to the following:

3. That on or about July 31, 2017, the child’s physical or mental condition was seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child’s parents, guardian or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision in that: the parents suffer from substance abuse issues.

4. That the following services will be agreed to at the dispositional hearing to be held in this case and are necessary to remedy the reasons for removal:

Visitation, homebased casework focusing on sober living and/or parenting education; random drug screens and treatment for substance abuse; and ensuring the provision of a safe, stable environment free of abuse or neglect.

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5. This stipulation is not, and shall not be construed in any manner, as an admission of any criminal act or omission on the part of either parent;

6. That the child, [A.M.], needs care, treatment, or rehabilitation that the child is unlikely to be provided or accepted without the coercive intervention of the court, and the parents agree to participate in all services ordered by the court to protect and safeguard Child; and,

7. That there is a factual basis for adjudicating Child as a child in need of services under § 31-34-1-1.

Id. at 12. Father then verbally admitted “that there is a drug issue, or has

been,” but he claimed to be “working on it . . . .” Tr. Vol. II p. 7. Mother’s

counsel stated that Mother would be entering into a verbal stipulation.

However, after privately conferring with her attorney, Mother denied the

CHINS allegations. The parties stipulated that the “sole evidence before the

Court will be the intake officer’s report of preliminary inquiry, and the CHINS

petition.” Id. at 14. They agreed that those documents would be “entered as

substantive evidence” and that the trial court would “make a finding based on

those two documents.” Id. The trial court found A.M. to be a CHINS. The

trial court then entered a dispositional order that required Mother and Father to

participate in certain services. Mother now appeals.

Analysis [6] Mother challenges the trial court’s finding that A.M. is a CHINS. “A CHINS

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

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the evidence that a child is a CHINS as defined by the juvenile code.’” In re

K.D., 962 N.E.2d 1249, 1253 (Ind. 2012) (quoting In re N.E., 919 N.E.2d 102,

105 (Ind. 2010)). We neither reweigh the evidence nor judge the credibility of

the witnesses. Id. We consider only the evidence that supports the trial court’s

decision and reasonable inferences drawn therefrom. Id. We reverse only upon

a showing that the decision of the trial court was clearly erroneous. Id. [7] “There are three elements DCS must prove for a juvenile court to adjudicate a

child a CHINS.” Id. DCS must first prove the child is under the age of

eighteen. Id. DCS must then prove that at least one of eleven different

statutory circumstances exists that would make the child a CHINS. Id. Finally,

“in all cases, DCS must prove the child needs care, treatment, or rehabilitation

that he or she is not receiving and that he or she is unlikely to be provided or

accepted without the coercive intervention of the court.” Id. [8] Here, the trial court found A.M. to be a CHINS based on Indiana Code Section

31-34-1-1, which provides:

A child is a child in need of services if before the child becomes eighteen (18) years of age:

(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

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(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.

Mother argues that DCS failed to prove that A.M.’s physical or mental

condition was endangered by the parents or that the coercive intervention of the

court was necessary. [9] We first address whether DCS proved that A.M.’s physical or mental condition

is seriously impaired or seriously endangered as a result of the inability, refusal,

or neglect of his parent to supply him with necessary food, clothing, shelter,

medical care, education, or supervision. The trial court found that DCS had

met this burden because “the parents suffer from substance abuse issues.”

Appellant’s App. Vol. II p. 66. Mother argues this finding is erroneous because,

other than Father’s stipulation, the record contains no evidentiary support for

the finding that Mother has a drug issue. Mother argues that Father’s

stipulation “was not admitted during the factfinding hearing” and that the only

evidence at the factfinding hearing was the preliminary inquiry and the CHINS

petition. Appellant’s Br. p. 11. [10] It is possible for one parent’s admission to considered as evidence even where

the other parent is contesting the CHINS determination. See In re Matter of L.S.,

82 N.E.3d 333, 341 (Ind. Ct. App. 2017) (“While Father’s admission was

evidence in support of a CHINS determination, the trial court was not required Court of Appeals of Indiana | Memorandum Decision 17A-JC-3038 | June 13, 2018 Page 6 of 10

to find the Children to be CHINS based on that admission.”), trans. denied; see

also K.D., 962 N.E.2d at 1256-57. Here, Father stipulated that “the parents

suffer from substance abuse issues.” Appellant’s App. Vol. II p. 12. However,

later during the hearing, the parties stipulated that the “sole evidence before the

Court will be the intake officer’s report of preliminary inquiry, and the CHINS

petition.” Tr. Vol. II p. 14. They agreed that those documents would be

“entered as substantive evidence” and that the trial court would “make a

finding based on those two documents.” Id. Under these circumstances, we

conclude that Father’s stipulation should not have been considered with respect

to Mother. [11] The preliminary inquiry and the CHINS petition support the finding that Father

has a substance abuse issue, but there is no direct support in those documents

for the finding that Mother has a substance abuse issue. DCS was not

necessarily required to present evidence as to Mother. See K.D., 962 N.E.2d at

1257 (“[A] scenario could exist where a child is born positive for cocaine and

the mother wants to admit the child is a CHINS, but the father, who has no

problems of his own and does not live with the mother, wants to contest that his

newborn child is a CHINS. While he might not contest the factual allegation

the mother is admitting, he has the right to contest the allegation that his child

needs the coercive intervention of the court.”). However, even if we examine

the evidence directly related to Mother, there is evidence to support the trial

court’s conclusion.

Court of Appeals of Indiana | Memorandum Decision 17A-JC-3038 | June 13, 2018 Page 7 of 10 [12] Even where a trial court’s finding is erroneous, we may affirm where, after

examining the entire judgment, we determine that the erroneous finding does

not constitute the sole support for any conclusion of law necessary to sustain

the judgment. In re B.J., 879 N.E.2d 7, 20 (Ind. Ct. App. 2008), trans. denied.

Even if we do not consider Father’s stipulation, we conclude that the evidence

is sufficient to conclude that A.M.’s physical or mental condition is seriously

impaired or seriously endangered as a result of the inability, refusal, or neglect

of his parent to supply the child with necessary food, clothing, shelter, medical

care, education, or supervision. Later in the order, the trial court also

concluded:

The Parents took the child to the hospital believing him to have been given a substance by a stranger, attempted to leave the hospital before the child was checked, and the mother [was] behaving very erratically. The Father tested positive for amphetamine, methamphetamine, THC, and opiates. The Mother refused a screen.

Appellant’s App. Vol. II p. 66. This finding is supported by the preliminary

inquiry. While A.M. was in their care, Mother and Father allowed a hitchhiker

to sit in the backseat with A.M. Father took a pill from the hitchhiker that

caused him to need emergency care, and they were concerned that the

hitchhiker had also given a substance to A.M. This evidence supports the trial

court’s conclusion that A.M.’s physical or mental condition is seriously

impaired or seriously endangered as a result of the inability, refusal, or neglect

of his parents to supply him with necessary supervision.

Court of Appeals of Indiana | Memorandum Decision 17A-JC-3038 | June 13, 2018 Page 8 of 10 [13] Next, Mother argues that the trial court erroneously found that A.M. needs

care, treatment, or rehabilitation that he is unlikely to be provided or accepted

without the coercive intervention of the court. Mother contends that the

“record does not reflect any inadequacies in Mother’s care of A.M.”

Appellant’s Br. p. 15. We disagree. The preliminary inquiry and CHINS

petition demonstrate that, despite concern that a hitchhiker had given A.M. a

substance, Mother attempted to remove A.M. from the hospital without having

the test results completed. She was stopped, but later attempted to remove

A.M. from the hospital a second time. Officers had to restrain her, forcibly

remove A.M. from her arms, and arrest her. The trial court properly found that

A.M. needed care, treatment, or rehabilitation that he was unlikely to be

provided or accepted without the coercive intervention of the court. [14] We, therefore, conclude that sufficient evidence was presented at the fact-

finding hearing to establish that Mother was unable or refused to supply A.M.

with necessary food, clothing, shelter, medical care, education, or supervision,

and A.M.’s physical or mental condition was seriously impaired or seriously

endangered as a result and that A.M. needed care, treatment, or rehabilitation

that he was not receiving and was unlikely to be provided without the coercive

intervention of the court. See Ind. Code § 31-34-1-1. Sufficient evidence

supported the juvenile court’s determination that A.M. was a CHINS.1

1 Mother challenges the trial court’s findings that the parents agreed to participate in certain services. Mother argues that she never agreed to the services and that the services were unnecessary. This portion of the order

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Conclusion [15] The evidence is sufficient to support the trial court’s determination that A.M. is

a CHINS. We affirm. [16] Affirmed.

Vaidik, C.J., concurs.

Pyle, J., dissents.

is identical to Father’s stipulation. Mother is correct that, although Father agreed to those services, she did not. This error, however, does not impact the determination of whether A.M. is a CHINS. Rather, it relates to the services ordered in the dispositional order, which Mother does not address. Consequently, the error is harmless. Mother also argues that the following finding is erroneous: “The Court finds that reasonable efforts to prevent or eliminate the removal of the child was not required due to the emergency nature of the situation.” Appellant’s App. Vol. II p. 66. This finding relates to A.M.’s detention under Indiana Code Chapter 31-34-5, not the CHINS determination. Further, the finding is supported by the evidence. Based on the preliminary inquiry, which was admitted as substantive evidence, Mother and Father picked up a hitchhiker and allowed the person to sit in the backseat with A.M., Father took drugs from the person and started hallucinating, they worried that A.M. had also been given drugs, and Mother was behaving erratically at the hospital but refused a drug test for herself. Based on this evidence, the trial court’s finding is not erroneous.

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