In re the Matter of V.R. (Minor Child), R.C. (Mother) v. Indiana Department of Child Serivces (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 Jul 30 2020, 9:25 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 Ryan D. Bower Curtis T. Hill, Jr. Bower Law Office, LLC Attorney General of Indiana Salem, Indiana Katherine A. Cornelius Robert J. Henke Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Matter of V.R. (Minor July 30, 2020 Child), Court of Appeals Case No. 20A-JC-450 R.C. (Mother), Appeal from the Orange Circuit Appellant-Respondent, Court v. The Honorable Steven L. Owen, Judge Indiana Department of Child Trial Court Cause No. Services, 59C01-1911-JC-246

Appellee-Petitioner. Mathias, Judge. Court of Appeals of Indiana | Memorandum Decision 20A-JC-450 | July 30, 2020 Page 1 of 11 [1] R.C. (“Mother”) appeals the Orange Circuit Court’s order adjudicating her

minor child a Child In Need of Services (“CHINS”). Mother raises three issues,

which we restate as the following two:

I. Whether the trial court abused its discretion when it allowed a toxicologist’s telephonic testimony; and,

II. Whether the Department of Child Services (“DCS”) proved that V.R. was a CHINS by a preponderance of the evidence.

[2] We affirm.

Facts and Procedural History [3] Mother has one child, V.R., who was born on August 10, 2008. 1 V.R. suffers

from a heart condition. V.R.’s maternal grandmother provides medical care to

her. [4] On November 25, 2019, the DCS received a report that Mother was using

illegal substances and not maintaining her mental health. Two family case

managers went to Mother’s home to investigate. They spoke to Mother and her

roommate. V.R. was at her grandmother's house. [5] Mother initially agreed to submit to a drug screen and admitted that the screen

would be positive for methamphetamine. Tr. p. 64. Mother told family case

manager (“FCM”) Rebecca Nail (“Nail”) that she sprayed hairspray on

methamphetamine “to oxidize it or to remove the chemicals so she could sleep

1 The child’s father, H.R., is incarcerated, and his release date is May 24, 2023. Tr. p. 48.

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at night.” Tr. p. 17; see also Tr. p. 62. Mother admitted that she heard voices in

her head. Tr. pp. 18, 65. She was agitated and could not speak in clear and

concise sentences. [6] Dalton Nigg (“Nigg”), the second family case manager, learned that V.R. was

safe at her grandmother’s home but was expected to return to Mother’s home

the next day. Nigg returned to Mother’s home on November 26, 2019. When

he arrived at approximately 11:40 a.m., Mother was still in bed. Mother was

agitated and “somewhat scattered.” Tr. p. 12. Mother’s roommate reported that

Mother was hearing voices and made statements about “sacrificing” V.R. or her

roommate. Tr. p. 13. Mother denied making the statements. V.R. was removed

from Mother’s home and placed in relative care. [7] The same day, DCS filed a petition alleging that V.R. was a CHINS pursuant to

Indiana Code section 31-34-1-1. DCS alleged that V.R. was a victim of neglect

due to Mother’s methamphetamine use and her untreated mental illness.

Mother was no longer taking her prescribed medications for her mental illness

and was not participating in therapy. In 2016, V.R. had previously been

adjudicated a CHINS because of Mother’s methamphetamine use and mental

instability. [8] After an initial hearing held on November 27, 2019, the trial court ordered V.R.

to be placed with relatives. At a family team meeting on December 17, 2019,

Mother admitted to using methamphetamine. Tr. p. 102. FCM Nigg

recommended a substance abuse evaluation. He recommended that V.R.

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should not be returned to Mother’s care until she completed substance abuse

treatment. Tr. p. 103. Mother was also hospitalized for her mental illness for

approximately two weeks in December 2019, after V.R. was removed from her

care. After her release from the hospital, she continued to participate in

treatment once a month with a psychiatrist and a counselor. Tr. p. 54. Mother

is also taking prescribed medications to treat her mental health issues. [9] On January 15, 2020, the trial court held the CHINS fact-finding hearing.

Mother testified that she suffers from schizophrenia. Tr. p. 53. When DCS

began to question Mother about her substance abuse issues, Mother responded,

“if we are going to focus on mental illness we can focus on that. Substance use

is not an issue with me, nor has it been and if we need to, to not talk about that

then I’m not going to answer.” Tr. p. 56. [10] FCM Nail testified that DCS received a report concerning Mother’s substance

abuse, and that Mother had stood over her roommate and V.R. while holding a

knife stating “the voices were telling her to do bad things.” Tr. p. 61. Nail

testified that Mother appeared to be “[m]entally unstable” during Nail’s

November 25, 2019, visit to Mother’s home. Tr. p. 62. Mother told Nail that

people thought she “was crazy because she dressed up and carried a butcher

knife around the house[.]” Tr. p. 63. Nail did not believe that V.R. should be

returned to Mother’s care. Nail felt that Mother’s mental health was unstable,

and that she needed to address her substance abuse issues. Tr. p. 66.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-450 | July 30, 2020 Page 4 of 11 [11] The trial court allowed toxicologist, Dr. Donna Coy, to testify telephonically

over Mother’s objection. Dr. Coy testified that Mother’s drug screens submitted

on November 26, 2019, and December 11, 2019, were both positive for

amphetamine and methamphetamine. Tr. p. 93. [12] After considering Mother’s mental health issues and substance abuse, the trial

court concluded that V.R. was CHINS. Tr. pp. 127–29. Two weeks later, the

trial court held the disposition hearing and issued its dispositional order.

Mother was ordered to participate in visitation with V.R., maintain contact

with DCS, participate in services recommended by DCS, complete a parenting

assessment and a psychological evaluation, take all prescribed medications,

submit to random drug screens, and complete a substance abuse assessment.

Mother now appeals the CHINS adjudication.

I. Telephonic Testimony

[13] Mother argues that the trial court abused its discretion when it allowed a

toxicology witness, Dr. Coy, to testify telephonically at the fact-finding hearing.

DCS contends that, if the testimony was admitted in error, the error was

harmless. [14] The admission of evidence is entrusted to the sound discretion of the trial court.

In re B.H., 989 N.E.2d 355, 360 (Ind. Ct. App. 2013). We will find an abuse of

discretion only where the trial court’s decision is against the logic and effect of

the facts and circumstances before the court. Id. But not all error is reversible.

Id. The improper admission of evidence is harmless error when the judgment is

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supported by substantial independent evidence to satisfy the reviewing court

that there is no substantial likelihood that the questioned evidence contributed

to the judgment. Id. [15] Administrative Rule 14(B) provides guidelines for the admission of telephonic

testimony in a CHINS fact-finding hearing. A motion for telephonic testimony

must be served not less than thirty days before the date specified for the fact-

finding hearing. Admin. R. 14(B). DCS admits that its motion was filed only

twenty-six days before the scheduled fact-finding hearing. Appellee’s Br. at 22.

The trial court’s order granting DCS’s motion to present telephonic testimony

also did not include specific findings as required by Administrative Rule 14(B). [16] Therefore, the trial court abused its discretion when it admitted Dr. Coy’s

telephonic testimony without meeting the requirements of Administrative Rule

14(B). DCS argues that the error is harmless because Dr. Coy’s testimony

concerning the test results of Mother’s drug screens was cumulative of other

properly admitted testimony. [17] Dr. Coy testified that Mother’s November 26 and December 11, 2019, drug

screens were positive for amphetamine and methamphetamine. Tr. p. 93. FCM

Nail testified Mother admitted to methamphetamine use during the initial

investigation in November 2019. Tr. pp. 62, 68. Mother told the case manager

that she would test positive for methamphetamine. She also told Nail that she

sprayed hairspray on methamphetamine before ingesting it. Tr. p. 62. She

indicated that her methamphetamine use did affect her ability to parent V.R.

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Tr. p. 62. At a team meeting on December 17, 2019, Mother told FCM Nigg

that she had used methamphetamine recently. Tr. p. 102. [18] Error in the admission of evidence is harmless “if the erroneously admitted

evidence was cumulative of other evidence appropriately admitted.” In re S.W.,

920 N.E.2d 783, 788 (Ind. Ct. App. 2010). Dr. Coy’s testimony concerning

Mother’s drug screen results was cumulative of Mother’s admissions to the

family case managers that she used methamphetamine in November and

December 2019. For this reason, the trial court did not commit reversible error

when it allowed Dr. Coy’s telephonic testimony.

II. Sufficient Evidence

[19] Mother argues that DCS failed to prove that V.R. was endangered or that the

coercive intervention of the court was necessary. It is well-settled that

[i]n all CHINS proceedings, the State must prove by a preponderance of the evidence that a child is a CHINS as defined by the juvenile code. When reviewing a CHINS adjudication, we do not reweigh evidence or judge witness credibility and will reverse a determination only if the decision was clearly erroneous. A decision is clearly erroneous if the record facts do not support the findings or if it applies the wrong legal standard to properly found facts.

V.B. v. Ind. Dep’t of Child Servs., 124 N.E.3d 1201, 1208 (Ind. 2019) (citations

and quotation marks omitted).

Court of Appeals of Indiana | Memorandum Decision 20A-JC-450 | July 30, 2020 Page 7 of 11 [20] DCS alleged that V.R. was a CHINS pursuant to Indiana Code section 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;

(A) when the parent, guardian, or custodian is financially able to do so; or

(B) due to the failure, refusal or inability of the parent, guardian, or custodian to seek financial or other reasonable means to do so; 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.

[21] “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.’” J.B. v. Ind. Dep’t of Child Servs., 2 N.E.3d 1283, 1287 (Ind. 2014)

(quoting Lake Cty. Div. of Fam. & Child. Servs. v. Charlton, 631 N.E.2d 526, 528

(Ind. Ct. App. 1994)). When considering this requirement, “courts should

consider the family’s condition not just when the case was filed, but also when

it is heard.” Gr.J. v. Ind. Dep’t of Child Servs., 68 N.E.3d 574, 580 (Ind. 2017)

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(quotations omitted). “Doing so avoids punishing parents for past mistakes

when they have already corrected them.” Id. at 581. [22] Mother argues that V.R. was never endangered because she “was not present

during the [M]other’s mental situations or substance abuse.” Appellant’s Br. at

6. Mother claims that case manager Nail “made a number of uncorroborated

fantastical statements about her initial interview with” Mother.2 Id. at 7. Mother

admits her struggles with mental illness but notes that she participated in mental

health treatment in December 2019 after V.R. was removed from her care. [23] After reviewing the testimony of the family case managers and Mother’s

testimony, the trial court was not convinced that Mother’s mental health

condition was stable. The trial court acknowledged that V.R. was with her

grandmother on November 25, 2019, when DCS investigated the initial report

concerning Mother’s mental health and drug use. But the court was concerned

that returning V.R. to Mother’s home would endanger V.R. because Mother

required hospitalization for her mental illness in December 2019, and Mother

refused to address her substance abuse issues. The trial court stated, “I do not

feel comfortable in [] letting somebody who is using methamphetamine and

2 Contrary to Mother’s claim, family case manager Nail’s testimony related Mother’s statements to her during DCS’s initial November 25, 2019, investigation. With her own testimony, Mother attempted to argue that her statements to Nail concerning dressing up like a clown and carrying a butcher knife were misconstrued. It was within the trial court’s discretion to weigh Nail’s recollection of their initial conversation against Mother’s explanation. See In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012).

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suffering from mental illness making decisions” about when it is safe for V.R. to

be in Mother’s home. Tr. p. 128. [24] The trial court also found that Mother was resistant to services, and therefore, it

“is necessary for the department to intervene and to get services to the family

unit so that we can reunite the family[.]” Id. Given the evidence that Mother

hears voices and made statements about sacrificing V.R. or her roommate, see

Tr. p. 13, the court was concerned for V.R.’s safety if she was returned to

Mother’s home. Tr. p. 129 (“The Court’s not going to wait around for

something bad to happen when I get something like this[.]”); see also, In re R.P.,

949 N.E.2d 395, 401 (Ind. Ct. App. 2011) (holding that the CHINS statute does

not require the juvenile court and DCS to wait until a child is physically or

emotionally harmed to intervene; rather, a child may be determined to be a

CHINS if his or her physical or mental condition is endangered). [25] It was also reasonable for the trial court to infer that Mother used

methamphetamine more than once.3 Mother admitted to using

methamphetamine to case manger Nail on November 25, 2019. On December

17, 2019, at a family team meeting, Mother again admitted that she used

3 For this reason, we are not persuaded by Mother’s citation to Perrine v. Marion County Office of Child Services, 866 N.E.2d 269, 277 (Ind. Ct. App. 2007). In Perrine, our court held that a “single admitted use of methamphetamine, outside the presence of the child and without more, is insufficient to support a CHINS determination.” Id.

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methamphetamine. But at the fact-finding hearing, Mother denied

methamphetamine use and refused to discuss her substance abuse issues. [26] Mother cites to her own her testimony to support her argument that V.R. is not

a CHINS. But it is not our role to reweigh the evidence and the credibility of

the witnesses. See In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012); see also Steele-

Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (explaining that appellate courts

grant latitude and deference to trial courts in family law matters). The trial

court was understandably concerned that Mother’s refusal to acknowledge and

receive treatment for her substance abuse issues, combined with Mother’s

failure to consistently treat her mental illness, seriously endangers V.R.’s well-

being. [27] For all of these reasons, we conclude that DCS proved by a preponderance of

the evidence that V.R. is a CHINS pursuant to Indiana Code section 31-34-1-1.

Conclusion [28] The trial court’s error in admitting Dr. Coy’s telephonic testimony was

harmless. And DCS proved by a preponderance of the evidence that V.R. is a

CHINS. We therefore affirm the trial court’s order adjudicating V.R. a CHINS. [29] Affirmed.

Bradford, C.J., and Najam, J, concur.

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