In the Matter of A.R., A.S., L.S., and J.O., Children Alleged to be Cihldren in Need of Services M.O. (Mother) v. Indiana Department of Child Services , 121 N.E.3d 598 ( 2019 )

FILED
Apr 01 2019, 6:06 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven Knecht Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C. Attorney General of Indiana
Lafayette, Indiana
Natalie F. Weiss
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of A.R., A.S., L.S., April 1, 2019
and J.O., Children Alleged to be Court of Appeals Case No.
Children in Need of Services; 18A-JC-2523
M.O. (Mother), Appeal from the Tippecanoe
Superior Court
Appellant-Respondent,
The Honorable Faith A. Graham,
v. Judge
The Honorable Tricia L.
Indiana Department of Child Thompson, Juvenile Magistrate
Services, Trial Court Cause Nos.
79D03-1806-JC-173
Appellee-Petitioner.
79D03-1806-JC-174
79D03-1806-JC-175
79D03-1806-JC-176
Najam, Judge.
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Statement of the Case
[1] M.O. (“Mother”) appeals the trial court’s adjudication of her four minor
children, A.R., A.S., L.S., and J.O. (the “Children”), as children in need of
services (“CHINS”). Mother raises a single issue for our review, which we
restate as whether the trial court erred when it adjudicated the Children to be
CHINS.1 We conclude that the evidence does not support the CHINS
determination that the coercive intervention of the court is required to protect
the Children. Accordingly, we reverse.
Facts and Procedural History
[2] In June 2018, Mother was pregnant and living at her parents’ house. At that
time, Mother had three children: A.R., born February 18, 2007; and A.S. and
L.S., born March 9, 2015. On June 15, Mother’s parents informed her that she
could no longer live at their house. That same day, Mother checked into a
hospital and gave birth to her fourth child, J.O. Shortly after J.O.’s birth, the
hospital tested J.O.’s cord blood, which tested positive for methamphetamine.
[3] While Mother was still at the hospital, Indiana Department of Child Services
(“DCS”) Family Case Manager (“FCM”) Andrea Woodard spoke with Mother
about Mother’s living situation. Mother admitted that she was not sure where
she was going to live when she left the hospital. FCM Woodard also asked
Mother about the presence of methamphetamine in J.O.’s cord blood. Mother
1
The Children’s respective fathers do not participate in this appeal.
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told FCM Woodard that she did not know how methamphetamine got into
J.O.’s system, but that it “could’ve gotten there from being around a friend”
who was using methamphetamine for approximately thirty minutes. Tr. Vol. II
at 12. After her conversation with Mother, FCM Woodward determined that
an emergency existed and removed the Children from Mother’s care “on the
spot.” Id.
[4] On June 20, DCS filed a petition alleging that the Children were CHINS.
Specifically, DCS alleged that the Children were CHINS due to Mother’s
homelessness. DCS additionally alleged the J.O. was a CHINS because she
had been born with methamphetamine in her system. The next day, Mother,
A.R., A.S., and L.S. submitted to a hair follicle test. Mother, A.S., and L.S. all
tested positive for methamphetamine, with Mother’s level being “fatal.” Id. at
98.
[5] The trial court held an initial hearing on the CHINS petition. During that
hearing, the trial court ordered Mother to submit to drug tests. The court also
approved Mother’s participation in parenting time if her drug tests came back
negative but ordered visitations to stop should Mother test positive.
[6] After DCS removed the Children from Mother’s care, DCS offered Mother case
management and visitation services. Mother met with her case manager, Molly
Craig, once per week and was doing “well.” Id. at 20. Mother also regularly
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participated in visitation with the Children.2 Mother visited with the Children
three days per week for two and one-half to three and one-half hours per visit.
[7] The trial court held a fact-finding hearing on the CHINS petition on August 17
and 20. During the fact-finding hearing, DCS presented evidence that, in 2009,
Mother, who is a registered nurse, had been convicted of possession of a
controlled substance, as a Class C felony, after she had stolen prescription pain
pills from patients. DCS also presented as evidence the results of the June 21
hair follicle test, which results indicated that Mother had tested positive for
methamphetamine on that date. DCS also called Nathan Elkins, an employee
in the permanency department of DCS. Elkins testified that, during one
random drug screen, Mother admitted that she had used methamphetamine
while she was pregnant with J.O. and that the last time she had used
methamphetamine was approximately one month prior to J.O.’s birth. Other
than the June 21 hair follicle test, DCS did not submit as evidence the result of
any other drug test during the fact-finding hearing. Rather, at the dispositional
hearing, Elkins testified that Mother was “testing negative for everything” but
her prescriptions and that she had not tested positive for methamphetamine
“since the start of the case.” Id. at 127.
[8] Elkins also testified regarding the visits between Mother and the Children.
Elkins testified that the visits have been “outstanding . . . every time.” Id. at 20.
2
Mother missed “a couple” of visits with Children due to “scheduling issues with her visit facilitator.” Id. at
21. But DCS “switched over to a new visit facilitator and things have gone well since then.” Id.
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Elkins stated that he “never had concerns” during any of the visits that he had
supervised and that the Children “are very, very bonded to” Mother. Id. at 20-
21. Further, Marcus Jackson, who took over supervising Mother’s visitation
with the Children on August 1, testified that the visits between Mother and the
Children “are going really, really great” and that Mother is “doing very well”
with the Children. Id. at 105. He further testified that Mother is “parenting and
providing everything they need” such as “bottles, food, . . . all those things, and
just . . . bonding.” Id. He also testified that Mother does “a great job” at
multitasking between the Children. Id. Jackson further testified that Mother
has never appeared to be under the influence at any of the visits and that he had
not had any concerns about Mother’s visits with the Children.
[9] Mother also testified during the fact-finding hearing. Mother admitted that she
had been homeless since June. But she also testified that she had signed a lease
on a new condo the day before the hearing and that she would be moving into
the condo that night. Mother also testified that she had everything the Children
needed in the condo, that Transitional Housing had inspected her new condo,
and that the condo was safe and appropriate for the Children. Additionally,
Mother testified that she had recently accepted a new full-time nursing position,
which was scheduled to begin on September 10. Mother acknowledged that the
new position was contingent upon her passing a background check and drug
screen. But Mother testified that her new employer already knew about her
prior conviction in 2009 and that she had not had any other criminal
convictions since that date.
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[10] During her testimony, Mother admitted that, prior to her 2009 conviction, she
had used pain pills and developed an opiate habit. She further admitted that
she had started using methamphetamine in August 2017 and that she had used
methamphetamine while pregnant with J.O. But Mother also testified that she
had obtained counseling without the assistance of DCS for “methamphetamine
use in remission” and that she had been seeing her therapist once per week for
four weeks.3 Id. at 62.
[11] Mother also called Craig as a witness. Craig testified that, as Mother’s case
manager, she had met with Mother once per week and that Mother was
cooperative with her services and proactive with the goals that they had set.
Craig further testified that Mother made Craig’s job “unusually” easy, as
Mother had already made her resume and budget. Id. at 100. Craig testified
that she was “there to support” Mother. Id.
[12] Following the fact-finding hearing, the trial court adjudicated the Children to be
CHINS. The trial court then held a dispositional hearing in which it ordered
Mother to participate in services. This appeal ensued.
3
DCS did not authorize a substance abuse assessment for Mother as of the date of the fact-finding hearing.
Elkins testified that DCS had “overlooked” making a referral for that assessment. Id. at 97.
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Discussion and Decision
[13] Mother contends that DCS failed to present sufficient evidence to demonstrate
that the Children are CHINS. Our Supreme Court has set out our standard of
review.
When reviewing a trial court’s CHINS determination, we do not
reweigh evidence or judge witness credibility. In re S.D., 2
N.E.3d 1283, 1286 (Ind. 2014). “Instead, we consider only the
evidence that supports the trial court’s decision and [the]
reasonable inferences drawn therefrom.” Id. at 1287 (citation,
brackets, and internal quotation marks omitted). When a trial
court supplements a CHINS judgment with findings of fact and
conclusions of law, we apply a two-tiered standard of review.
We consider, first, “whether the evidence supports the findings”
and, second, “whether the findings support the judgment.” Id.(citation omitted). We will reverse a CHINS determination only
if it was clearly erroneous. In re K.D., 962 N.E.2d 1249, 1253
(Ind. 2012). 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.” Yanoff v. Muncy, 688 N.E.2d 1259, 1262
(Ind. 1997) (citation omitted).
Gr. J. v. Ind. Dep’t of Child Servs. (In re D.J.), 68 N.E.3d 574, 577-78 (Ind. 2017)
(alteration in original).
[14] DCS alleged that the Children were CHINS pursuant to Indiana Code Section
31-34-1-1, which provides that a child is a child in need of services if, before the
child becomes eighteen 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
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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.
[15] Our Supreme Court has interpreted that statute to require “three basic elements:
that the parent’s actions or inactions have seriously endangered the child, that
the child’s needs are unmet, and (perhaps most critically) that those needs are
unlikely to be met without State coercion.” In re S.D., 2 N.E.3d at 1287. “A
CHINS adjudication focuses on the condition of the child.” N.L. v. Ind. Dep’t of
Child Servs. (In re N.E.), 919 N.E.2d 102, 105 (Ind. 2010).
[16] DCS additionally alleged that J.O. was a CHINS pursuant to Indiana Code
Section 31-34-1-10, which provides that a child is a child in need of services if
the child is born with “any amount, including a trace amount, of a controlled
substance . . . in the child’s body, including the child’s blood, urine, umbilical
cord tissue, or meconium” and the child needs care, treatment, or rehabilitation
that the child is not receiving or is unlikely to be provided or accepted without
the coercive intervention of the court.
[17] On appeal, Mother does not dispute that she had recently been homeless, that
she had previously been convicted of a drug-related felony, that she had used
methamphetamine while she was pregnant with J.O., or that J.O.’s cord blood
tested positive for methamphetamine. Rather, Mother contends that the trial
court erred when it adjudicated the Children to be CHINS because there is
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insufficient evidence to demonstrate that the Children need care that they are
not receiving or that they are unlikely to receive without the coercive
intervention of the court. We must agree.
[18] DCS first asserted that the trial court’s coercive intervention is necessary
because Mother has a long history of drug use and because Mother had initially
lied to DCS about her drug use. To support that contention, DCS presented
evidence that Mother was convicted of a felony in 2009 after she had stolen
prescription pain pills from patients, that Mother admitted to using
methamphetamine in August 2017, and that Mother initially lied to DCS when
she told DCS that J.O. had been exposed to methamphetamine while Mother
was at a friend’s house.
[19] However, when determining whether a Child is a CHINS, courts “‘should
consider the family’s condition not just when the case was filed, but also when
it is heard.’” In re D.J., 68 N.E.3d at 580 (quoting In re S.D. at 1290) (citation
omitted)). “Doing so avoids punishing parents for past mistakes when they
have already corrected them.” Id. at 581. Thus, in a CHINS case, we give
special consideration to a family’s current conditions.
[20] Here, while the facts indicate that Mother has a history of drug use, that Mother
had used methamphetamine during her pregnancy, and that Mother had
previously been convicted of a drug-related crime, the facts also demonstrate
that Mother has received help for her drug problem. Mother testified that she
had obtained counseling to help with her “methamphetamine use in remission”
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without any assistance or direction from DCS. Tr. Vol. II at 62. Indeed, at the
fact-finding hearing, Elkins testified that DCS had “overlooked” offering
Mother any substance abuse assessment.4 Id. at 97. But, notwithstanding
DCS’s oversight, Mother began counseling on her own and had been seeing her
counselor once a week for four weeks. And DCS acknowledged that “Mother
sought counseling on her own[.]” Appellee’s Br. at 9.
[21] Further, DCS did not present any evidence that Mother had tested positive for
methamphetamine or any other controlled substances since DCS filed the
CHINS petitions. Rather, at the dispositional hearing, Elkins testified that
Mother was “testing negative for everything” but her prescription medication
and that she had not tested positive for methamphetamine “since the start of the
case.” Id. at 127. Accordingly, the evidence demonstrates that, at the time of
the fact-finding hearing, Mother had both received help for her drug problem
and responded positively to that help, which included Mother having not failed
a single drug test following DCS’s removal of the Children.
[22] Still, DCS also alleged that the Children needed care that they were unlikely to
receive without the coercive intervention of the court because “Mother’s job
offer was contingent on her passing a drug screen and background check” and
“[a]bsent the income from this job, Mother would not be able to afford the
4
DCS apparently authorized a substance abuse assessment for Mother after the fact-finding hearing. As of
the date of the dispositional hearing, Mother had completed that assessment, but DCS had not yet received
the results.
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apartment she had located.” Appellee’s Br. at 17-18. In essence, DCS contends
that “court intervention was necessary to ensure Mother maintained sobriety
and passed the drug screen needed to officially obtain her nursing position.” Id.
at 18.
[23] However, any concern that DCS may have that Mother “would likely not be
able to afford her new apartment” or might relapse is merely speculation about
a potential future problem. Appellee’s Br. at 18. We understand that DCS may
be concerned about Mother failing the drug test or the background check,
which could cause her to lose her job. But a mere cause for concern “is not the
touchstone of a CHINS determination, and an unspecified concern about what
might happen in the future is insufficient in itself to carry the State’s burden of
proof.” L.N. v. Ind. Dep’t of Child Servs. (In re L.N.), 118 N.E.3d 43, No. 18A-JC-
1666, 2019 WL 273110, at *4 (Ind. Ct. App. Jan. 22, 2019).
[24] We conclude that DCS did not present sufficient evidence that Mother needed
the coercive intervention of the court in order to protect the Children from
homelessness that may occur if Mother were to fail the background check and
lose her new job. Rather, Mother testified that her new employer was aware of
her criminal history and that she was set to begin her new job less than one
month after the fact-finding hearing. In any event, even if Mother were to lose
her new job, “the mere fact of an unemployed parent does not make a CHINS.”
A.M. v. Ind. Dep’t of Child Servs. (In re S.M.), 45 N.E.3d 1252, 1256 (Ind. Ct. App.
2015). And even if Mother were to lose her condo, “the mere fact of a family
living in a shelter while seeking stable housing does not make a CHINS.” Id.Court of Appeals of Indiana | Opinion 18A-JC-2523 | April 1, 2019 Page 11 of 13
[25] There is no dispute that, at the time DCS filed the CHINS petition, Mother was
homeless, had recently used methamphetamine, and had recently given birth to
a child who tested positive for methamphetamine. But, again, it is well settled
that, when determining whether a child is a CHINS, the juvenile court “should
consider the family’s condition not just when the case was filed, but also when
it is heard.” In re S.D., 2 N.E.3d at 1290. Here, the evidence demonstrates that,
by the time of the fact-finding hearing, Mother had secured employment,
created a budget, rented a new condo that was appropriate for the Children,
actively and successfully participated in the services DCS had authorized, and
sought out, again, with success, counseling on her own in order to stay sober.
And Mother had not tested positive for controlled substances since the start of
the case. Further, Mother was doing “really, really great” with visits, and she
was “parenting and providing everything [the Children] need[.]” Tr. Vol. II at
105.
[26] We acknowledge that the CHINS statutes do not require the juvenile court and
DCS to wait until a child is physically or emotionally harmed to intervene. But
the CHINS findings must be based on facts and reasonable inferences from the
facts, not on speculative future concerns that may or may not ever happen.
And it was DCS’s burden to prove that the Children needed care that they were
unlikely to receive without the coercive intervention of the court. See In re S.D.,
2 N.E.3d at 1287. In this case, DCS failed to present any evidence that the
Children needed care that Mother was unlikely to provide without the coercive
intervention of the court.
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[27] In sum, DCS did not meet its burden to demonstrate that the Children have
needs that they were unlikely to receive without the coercive intervention of the
court. We therefore hold that the trial court erred when it found the Children to
be CHINS, and we reverse the trial court’s judgment.
[28] Reversed.
Pyle, J., and Altice, J., concur.
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