In the Matter of S.K., A Child in Need of Services and A.R. v. The Indiana Dept. of Child Services ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res Aug 09 2013, 9:22 am
judicata, collateral estoppel, or the law
of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
NOAH L. GAMBILL ELIZABETH A. LEWIS
Wagner Crawford and Gambill DCS, Local Office in Vigo County
Terre Haute, Indiana Terre Haute, Indiana
ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF S.K., )
A CHILD IN NEED OF SERVICES, )
)
and, )
)
A.R., )
)
Appellant-Respondent, )
)
vs. ) No. 84A05-1301-JC-7
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE VIGO CIRCUIT COURT
The Honorable David R. Bolk, Judge
The Honorable Daniel W. Kelly, Magistrate
Cause No. 84C01-1204-JC-486
August 9, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
A.R. (“Mother”) appeals the determination that her son, S.K., is a child in need of
services (“CHINS”). We affirm.
Issue
Mother raises one issue, which we restate as whether there is sufficient evidence to
support the trial court’s determination that S.K. is a CHINS.
Facts
On February 28, 2012, then fourteen-year-old S.K. called the Department of Child
Services (“DCS”) to report that he was staying with the Catons, close family friends, in
Terre Haute because of Mother’s homelessness and Mother’s alleged methamphetamine
use. Kerri Brown, a DCS family case manager, opened the investigation and
unsuccessfully attempted to contact Mother. Because Mother had voluntarily placed S.K.
with the Catons, the Catons were willing and able to care for S.K., and S.K. wanted to be
with the Catons, Brown began the process of closing the case.
Mother got her own apartment, and S.K. moved back in with Mother on April 6,
2012. On April 9, 2012, while the case was still in the process of being closed, S.K.
contacted Brown and told her that he was scared because Mother and a friend had
smoked methamphetamine in a bedroom of the apartment. Brown contacted police, who
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conducted a welfare check. Deputy Joe Kenworthy of the Vigo County Sheriff’s
Department investigated. S.K. told Deputy Kenworthy that Mother and her friend had
left to sell Sudafed to earn money for dinner. S.K. showed Deputy Kenworthy a crack
pipe he had found in the bedroom. Deputy Kenworthy noted that there was no food in
the apartment.
When Mother returned, she was “very, very agitated,” and Deputy Kenworthy
believed “that probably she was tweaking a little.” Aug. Tr. p. 6. Mother’s emotions
were like a roller coaster, and Deputy Kenworthy did not think S.K. would be safe there.
When Debbie Seifert from DCS arrived, Mother refused a drug screen but agreed to
allow S.K. to return to the Catons for the night.
Mother met with Brown the next day and again refused a drug screen and refused
all services. Mother did agree to allow S.K. to remain with the Catons and to begin
guardianship proceedings to allow her some time to get on her feet financially. Although
Mother initiated guardianship proceedings, she later changed her mind.
On April 16, 2012, Mother contacted Brown demanding to know why S.K. was
home sick that day, and Brown informed her that she did not know because S.K. was not
a ward of the State. Later that day, the principal from S.K.’s high school called Brown
and told her that Mother was “yelling and screaming inside the school.” Id. at 27.
On April 18, 2012, DCS filed a petition alleging that S.K. was a CHINS. That
same day, Mother submitted to a drug screen, which was positive for methamphetamine.
The next day, she submitted to another screen, which was negative. Mother refused all
further drug screens. On August 7, 2012, and October 9, 2012, fact finding hearings were
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held at which S.K., who was then fifteen years old, testified. On October 22, 2012, the
trial court issued an order finding:
1. That on May 15, 2012, the father, [L.K.], admitted to
all of the facts contained in the DCS petition.
2. That at the factfinding hearing held on August 7, 2012
and concluding on October 9, 2012, Vigo County Sheriff
Reserve Deputy Joe Kenworthy presented testimony that on
April 9, 2012, he was dispatched to International Village
Apartments to conduct a well-child check and met with
[S.K.], who advised that he had been living with a friend but
had returned home three days earlier. [S.K.] informed that
officer that his mother, who used to use drugs, had a friend
come over and go into his mother’s bedroom and smoke
something. He said that they were in the room for about 15
minutes and when they came out, the room was smoky. His
mother told [S.K.] that she was leaving to go sell some
Sudafed. [S.K.] told the officer that he found a crack pipe in
the house and the pipe was photographed. The officer
observed that there was no food in the cabinets or refrigerator.
Officer Kenworthy testified that when he discussed the matter
with [Mother], she was highly agitated and would blow up in
anger, calm down, and pace furiously, all in rapid succession.
[S.K.] stated that he had received numerous texts from his
mother, admitting that she had returned to using
methamphetamines.
3. FCM Debbie Siefert testified that when she arrived at
the home to speak with [S.K.] and [Mother], [S.K.] disclosed
that he did not feel safe at home as a result of his mother’s
erratic behavior. [Mother], who had been yelling and pacing
in the room, refused to submit to a drug screen, but ultimately
agreed to a safety plan that allowed [S.K.] to temporarily
return to the home of the friend he had been living with until
shortly before this incident.
4. FCM Carrie [sic] Brown presented testimony that she
had investigated an earlier report of [Mother] smoking meth
in [S.K.’s] presence, which was not substantiated. But she
then investigated the 4-9-12 report and learned, among other
things, that on April 16, 2012, [Mother] had come to South
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Vigo High School to discuss her son’s situation with the
principal, Chris Mauk. During the meeting, . . . [Mother] was
“sweating profusely and very agitated about her son.” She
“became mad at points and also broke down into tears at other
points.”
5. FCM Brown also testified that DCS substantiated the
4-9-12 report for “neglect for environment life/health
endangering.” At the conclusion of the initial hearing on 4-
18-12, the court ordered [Mother] to submit to a drug screen,
and the test results, which were admitted into evidence as
“Petitioner’s Exhibit I,” showed the presence of meth in
[Mother’s] system.
6. The minor child, [S.K.], provided background
information that demonstrated that he had lived with his
father for several years until 2009 due to his mother’s
incarceration, and that the three-year period of his
reunification with his mother was marked by long periods of
her drug use, domestic violence and housing instability,
resulting in [S.K.] living away from his mother and with
others for much of the time. [S.K.] had only returned to
mother’s home three days before the 4-9-12 incident.
App. pp. 6-7. The trial court concluded that S.K. was a CHINS. Mother now appeals.
Analysis
The CHINS petition was 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
(2) the child needs care, treatment, or rehabilitation that:
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(A) the child is not receiving; and
(B) is unlikely to be provided or accepted without the
coercive intervention of the court.
A CHINS proceeding is a civil action, and the State is required to prove by a
preponderance of 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). In our review of a CHINS determination,
we consider only the evidence that supports the trial court’s decision and reasonable
inferences drawn therefrom, and we neither reweigh the evidence nor judge the
credibility of the witnesses. Id.Because the trial court issued findings and conclusions, our standard of review is
two-tiered. In re A.I., 825 N.E.2d 798, 805 (Ind. Ct. App. 2005), trans. denied. “First,
we must determine whether the evidence supports the findings and, second, whether the
findings support the conclusions of law.” Id. “In deference to the trial court’s unique
position to assess the evidence, we set aside the trial court’s findings and judgment
terminating a parent-child relationship only if they are clearly erroneous.” Id. A finding
is clearly erroneous when there are no facts or inferences drawn therefrom to support it.
A judgment is clearly erroneous only if the conclusions of law drawn by the trial court
are not supported by its findings or the conclusions do not support the judgment.
Mother argues, “[t]he trial court’s decision is clearly erroneous because there is no
evidence that would support a CHINS adjudication based on alleged illegal drug usage.”
Appellant’s Br. p. 17. Mother relies on Perrine v. Marion Cnty. Office of Child Servs.,
866 N.E.2d 269, 277 (Ind. Ct. App. 2007), in which we held “that a single admitted use
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of methamphetamine, outside the presence of the child and without more, is insufficient
to support a CHINS determination.” We also concluded “[t]he mere presence of drug
paraphernalia in a bag in the residence is insufficient to support a finding of neglect under
Indiana Code Section 31-34-1-1.” Perrine, 866 N.E.2d at 277.
To the extent Mother denies that she smoked methamphetamine and argues that
there is not clear evidence drug use took place, she is asking us to reweigh the evidence,
which we cannot do. The positive drug screen, S.K.’s assertions, the paraphernalia found
in the room shortly after Mother was alleged to have been smoking, Mother’s history of
drug use, and the testimony of Mother’s erratic and agitated behavior support the
inference of drug use. This case is distinguishable from Perrine because it does not
involve a single admitted use of methamphetamine outside the presence of a child or the
mere presence of drug paraphernalia in the residence.
Further, although Mother claims that many of the findings are not supported by the
evidence, our review of the record confirms that the trial court’s findings accurately
reflect the testimony of the various witnesses. To the extent Mother, based largely on her
own testimony, challenges these findings, she is asking us to reweigh the evidence. We
cannot do that.
Mother also asserts that the trial court should not have considered any alleged
occurrences before April 9, 2012, because, “[a]s a matter of public policy, it is
counterintuitive that a trial court should rely on previous acts not related to events in the
underlying petition.” Appellant’s Reply Br. p. 7. This argument is flawed because the
petition references S.K. having been with the Catons for the last five months because he
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was homeless, Mother using drugs, and the February 2012 report to DCS. Thus, these
matters were related to allegations in the petition.
Mother also contends it was clearly erroneous to find S.K. to be a CHINS based
on her behavior, “when the Mother is upset and frustrated that a system meant to protect
children is inserting itself into a family situation that she strongly feels is unnecessary and
intrusive.” Appellant’s Br. p. 19. As our supreme court has observed, however, “[a]
CHINS adjudication focuses on the condition of the child.” In re N.E., 919 N.E.2d 102,
105 (Ind. 2010). Further:
While we acknowledge a certain implication of parental fault
in many CHINS adjudications, the truth of the matter is that a
CHINS adjudication is simply that—a determination that a
child is in need of services. Standing alone, a CHINS
adjudication does not establish culpability on the part of a
particular parent. . . . In fact, a CHINS intervention in no way
challenges the general competency of a parent to continue a
relationship with the child.
Id. Thus, to the extent Mother’s behavior impacts S.K., it is a relevant basis for
determining whether he is a CHINS.
As for Mother’s assertion that it was clearly erroneous for the trial court to rely on
Father’s admission when he had not been involved in S.K.’s life for the past three years,
we do not believe the trial court’s determination that S.K. was a CHINS was based on
this admission. Instead, it is clear that the determination was based on the extensive
evidence of Mother’s unstable housing and financial situation over the past several
months, her erratic behavior toward police officers, DCS workers, and school officials,
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S.K.’s fear of Mother, and the purported drug use. The evidence supports the trial court’s
findings, and the findings support the determination that S.K. is a CHINS.
Conclusion
Mother has not established that the trial court’s determination that S.K. is a
CHINS is clearly erroneous. We affirm.
Affirmed.
NAJAM, J., and BAILEY, J., concur.
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