In the Matter of: M.J., Minor Child, and K.M., Mother v. The Indiana Department of Child Services (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
court except for the purpose of establishing May 05 2017, 6:30 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
William W. Gooden Curtis T. Hill, Jr.
Mt. Vernon, Indiana Attorney General of Indiana
James D. Boyer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: May 5, 2017
M.J., Minor Child, Court of Appeals Case No.
65A01-1612-JC-2786
and
Appeal from the Posey Circuit
K.M., Mother, Court
Appellant-Respondent, The Honorable James M.
Redwine, Judge
v. Trial Court Cause No.
65C01-1606-JC-110
The Indiana Department of
Child Services,
Appellee-Petitioner.
Brown, Judge.
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[1] K.M. (“Mother”) appeals the trial court’s order determining that M.J. is a child
in need of services (“CHINS”). Mother raises one issue which we revise and
restate as whether the evidence is sufficient to support the court’s determination
that M.J. is a CHINS. We affirm.
Facts and Procedural History
[2] M.J. was born in March 2004. The Indiana Department of Child Services
(“DCS”) received a report of abuse or neglect regarding M.J. and conducted an
assessment in June 2016. Mother submitted to a drug screen which returned
positive for methamphetamine. On June 22, 2016, DCS filed a petition alleging
M.J. was a CHINS.1 The petition alleged Mother tested positive for
methamphetamine on or about June 16, 2016; Mother admitted to the use of
methamphetamine and use of hydrocodone in an attempt to self-medicate due
to struggles with prescription medication; Mother reported her struggle to
obtain services has resulted in the use of methamphetamine as a coping
mechanism; and the exposure of M.J. to involvement with illegal and impairing
substances indicates an ongoing lack of appropriate supervision which has not
been remedied.
[3] On October 5, 2016, the court held a fact-finding hearing at which it heard
testimony from Mother and the DCS family case manager assigned to M.J.,
Lindsey Huffer (“FCM Huffer”). Mother testified that M.J. was twelve years
1
DCS’s pre-dispositional report states that the date of removal of M.J. was June 20, 2016, and that M.J. was
placed in relative foster care.
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old, FCM Huffer and another person made contact with Mother in June 2016
and asked her to submit to a drug screen, and she submitted to the screen the
following day. Mother indicated that they asked about her drug use and she
told them she had recently used methamphetamine. She also stated she was
using prescription medication, Lortab, for which she did not have a
prescription at that time and that Lortab is opiate. When asked how long she
had been using opiates at that point without a prescription, Mother said “I
don’t know exact amount. A year or two.” Transcript Volume 2 at 8. When
asked why she did not attempt to obtain a prescription for the medication, she
replied “I don’t, I can’t answer that, honestly,” and when asked how she
obtained the medications, she answered “[o]ff of the streets.” Id.
[4] Mother indicated she is obtaining substance abuse treatment through Raintree
Counseling, that she obtained “help with the pain pills through [her] pain
management doctor,” and that she has tested negative on “all of their drug
tests.” Id. at 9. She stated she had been seeing a doctor at Southwestern
Indiana Mental Health since she was fifteen years old, she has anxiety and
depression, she had been receiving counseling every three months for her
anxiety and depression earlier in the year, and that she was now off medicines.
When asked about her methamphetamine use, Mother answered “I messed up
and used that one weekend. [M.J.] was gone and I was trying to numb myself
from everything going around me.” Id. at 11. She said she smoked
methamphetamine “[t]hat one time and got caught.” Id. When asked if she
had ever previously used methamphetamine, Mother responded “[w]ay in the
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past, Um, years” and “I did it in 2011. I did it one other time, maybe 2009.”
Id. When asked if she felt like she still needed to go to counseling, she
answered in the negative, and when asked if she believed the drug screens
helped hold her accountable, she testified “[n]o. It’s this whole lesson learned”
and “I did it one time and got caught. And now my daughter is paying for it.”
Id. at 12.
[5] On cross-examination, Mother indicated that M.J. was not present when she
used methamphetamine in June, 2016 and had been gone with a friend for that
weekend. Id. at 13. Mother further testified that she had been prescribed
Lortab “a year or two prior to being on them, with a prescription.” Id. at 14.
She stated the last time she had used Lortab without a prescription was when
she started pain management “[a]bout a month and a half ago.” Id. She
indicated she never used Lortab in the presence of her child and that her child
never knew. Mother also testified that she is now thirty-three years old, she is
no longer in counseling with a doctor due to DCS, and she recently attempted
to see the doctor but was told she could not obtain their counseling while
obtaining help with opiates and that DCS had contacted that office.
[6] Mother stated that M.J. is twelve years old, during her lifetime has never gone
without food, clothing, shelter, or medical care, has attended school, and has
never been unsupervised when she should have been supervised. Mother
indicated she did not know of any care, treatment, or rehabilitation that M.J.
needs that she was not providing, and that M.J. started talking to a counselor at
school since she was taken out of the home and it is fair to say that DCS’s
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involvement has created a problem for M.J. She further indicated the DCS
workers inspected her home and did not indicate it was unsafe for M.J., that
something needed to be corrected, or that there was some care M.J. needed but
was not receiving. On redirect examination, when asked if she felt like she
needed any kind of counseling for her substance abuse issues, Mother replied “I
don’t feel like I need them but I’m getting them.” Id. at 21.
[7] FCM Huffer testified that she walked through M.J.’s home, the home was not
dirty, and there were appropriate beds in the home. She testified that on June
20, 2016, she discussed with Mother that she had testified positive for
methamphetamine and needed to discuss the removal of M.J. According to
FCM Huffer, Mother indicated to her that June 6th was her last use of
methamphetamine, Mother gave her prescription bottles to FCM Huffer and
stated that her doctor had taken her off “cold turkey, but she couldn’t stop the
usage,” and Mother stated that she attempted to obtain help and needs help
with the opiates but not the methamphetamine. Id. at 27.
[8] FCM Huffer also testified that on June 27th, 2016 Mother “wanted to talk to me
about the paperwork that was filed that stated that the methamphetamine was
not a coping strategy it was recreational usage.” Id. FCM Huffer further
indicated that, after the CHINS case was filed, DCS offered Mother a drug
assessment, that Mother asked to begin the drug assessment on August 2nd,
and Mother officially started with the drug screens on August 23rd. With
respect to the assessment, FCM Huffer testified “the first time she went she did
end up walking out so the counselor told me that she couldn’t give me any
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information as far as what she’s recommending,” “we had her come in like a
week later I believe, and she finished out the assessment,” and “they were
recommending outpatient intensive services” in a sixteen-week program. Id. at
29. FCM Huffer stated that Mother believed the outpatient program was too
intense for her, she was given a couple of different options, and she decided on
Raintree Counseling. She testified Mother had attended Raintree once and that
she had not received any recommendations from Raintree as of that day. When
asked if, since Mother had been screening, “has she been positive,” FCM
Huffer answered “No. Well, besides the medication she’s currently
prescribed.” Id. at 31.
[9] On cross-examination, Mother’s counsel asked if Mother had admitted to any
other methamphetamine use other than in June 2016 and “other than maybe
five (5) or six (6) years ago,” and FCM Huffer replied “[n]o.” Id. at 35. When
asked “what treatment does she need that she is not getting,” FCM Huffer
answered “[t]he counseling,” and when asked “[w]hat does that have to do with
[Mother] having tested positive for meth on one (1) occasion? Anything?” she
replied “[n]ot that I’m aware of.” Id. at 37-38. When asked “How about
having used Loritab [sic] without a prescription? Is that anxiety connected to
that?” she answered “[n]ot that I’m aware of.” Id. at 38.
[10] FCM Huffer testified she was recommending that the family participate in
services to maintain Mother’s stability, that Mother has not yet completed her
substance abuse treatment and has been doing drug screens for about a month
and a half, and DCS has not yet received a recommendation from Raintree.
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[11] The trial court found:
Mother admitted to one (1) time use of methamphetamine. She
also admitted to using methamphetamine in the past, in 2011 and
2009. But more importantly to the Court, she admitted to
contemporary use of Loritabs [sic] when she had no prescription
for Loritabs [sic] and indicating she was getting those drugs off of
the streets. Meaning that every time that she bought a Loritab
she was committing a felony. So, this is not a case of a single use
by the Mother. . . . Mother is using Loritabs [sic] on a regular
basis. The Court finds that it is proven by a preponderance of the
evidence that the Mother’s ability to provide care and custody of
the child is impaired or likely to be impaired by her ongoing use
of prescription medications without a prescription. And that is
one of the allegations in the Petition. It says child’s Mother
admitted to use of amphetamine and use of hydrocodone in an
attempt to self medicate, due to struggle with prescription
medication. So, [DCS] has proved by a preponderance of the
evidence that the child is a child in need of services.
Transcript Volume 2 at 47-48. The court states in its chronological case
summary entry for the fact-finding hearing that it finds DCS acted reasonably in
becoming involved in the lives of the family and it would have been
unreasonable and contrary to the health, safety, and welfare of the child for it to
not have intervened.
Discussion
[12] The issue is whether sufficient evidence supports the trial court’s determination
that M.J. is a CHINS. In reviewing a trial court’s determination that a child is
in need of services, we neither reweigh the evidence nor judge the credibility of
witnesses. In re S.D., 2 N.E.3d 1283, 1286-1287 (Ind. 2014), reh’g denied.
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Instead, we consider only the evidence that supports the trial court’s decision
and reasonable inferences drawn therefrom. Id. at 1287. As to issues covered
by findings, we apply the two-tiered standard of whether the evidence supports
the findings and whether the findings support the judgment. Id. We review
remaining issues under the general judgment standard, under which a judgment
will be affirmed if it can be sustained on any legal theory supported by the
evidence. Id.[13] Ind. Code § 31-34-1-1 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:
(A) the child is not receiving; and
(B) is unlikely to be provided or accepted without the
coercive intervention of the court.
The CHINS statute, however, does not require that a court wait until a tragedy
occurs to intervene. In re A.H., 913 N.E.2d 303, 306 (Ind. Ct. App. 2009).
Rather, a child is a CHINS when he or she is endangered by parental action or
inaction. Id. The purpose of a CHINS adjudication is not to punish the
parents, but to protect the child. Id.Court of Appeals of Indiana | Memorandum Decision 65A01-1612-JC-2786 | May 5, 2017 Page 8 of 12
[14] Mother contends there is no evidence “that Mother’s drug usage, minimal as it
was, caused M.J. to lack food, clothing, shelter, medical care, education, or
supervision.” Appellant’s Brief at 6. She argues that DCS’s case was based
solely on her drug usage and that “[t]he evidence supporting this consists in its
entirety on a positive test for methamphetamine on June 16, 2016, Mother’s
admission that she had used opiates for which she had no prescription ‘about a
month and a half ago,’ and her admission that prior to the June 16 positive
methamphetamine screen she had last used that drug in 2011.” Id. at 7 (citing
Transcript Volume 2 at 14). She also argues that DCS acknowledged it had no
evidence that she ever used methamphetamine or opiates when she was caring
for M.J. and that there was no evidence she was impaired while M.J. was in her
care.
[15] DCS maintains that the evidence shows Mother had a pervasive substance
abuse problem with illegally acquired opiate pain medication for a year or two
while caring for M.J., and that there is no question that, during the entire time
Mother was and is using opiates, she had responsibility for M.J.’s care and
custody. In reply, Mother contends that nothing in the record indicates she had
custody of M.J. during the one- or two-year period she was using non-
prescribed drugs. Mother argues that DCS did not address her argument that
there was no evidence that M.J. was deprived of necessary food, clothing,
shelter, medical care, education, or supervision and that perhaps the failure of
the DCS to address the issue is a concession that such evidence was in fact
lacking.
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[16] The record reveals that Mother tested positive for methamphetamine on or
about June 16, 2016, and she indicated that she previously used
methamphetamine in 2009 and 2011. Mother indicated that M.J. was living
with her when DCS visited her in June 2016 and that at the time she was using
prescription medication, Lortab, which was an opiate, for which she did not
have a prescription. She testified that she had been using opiates without a
prescription for “[a] year or two” and that she obtained the medication “[o]ff of
the streets.” Transcript Volume 2 at 8. Mother had previously had a
prescription but could not stop her usage after she no longer had a prescription.
Although she indicated M.J. was not present when she used the
methamphetamine or Lortab, when asked if she believed her use of opiate
medication without a prescription was an issue, Mother answered affirmatively,
that she had been trying to obtain help, and that she is now obtaining help for
that. When later asked if she felt like she needed any kind of counseling for her
substance abuse issues, Mother answered “I don’t feel like I need them but I’m
getting them.” Id. at 21. FCM Huffer testified that, on June 20, 2016, Mother
had indicated to her that she needs help with the opiates but not the
methamphetamine, and that a parent’s drug use would affect the parent’s ability
to supervise her child. We also note Mother ended up walking out of her first
substance abuse assessment and, after she later completed the assessment,
believed the recommended sixteen-week outpatient program was too intense for
her.
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[17] To the extent Mother characterizes her drug use as minimal, we note the trial
court expressly found that “this is not a case of a single use by the Mother,” she
is using illegally-obtained prescription medication “on a regular basis,” and
Mother’s ability to provide care is impaired or likely to be impaired by her
ongoing use of prescription medications without a prescription. Transcript
Volume 2 at 47. The evidence presented at the fact-finding hearing supports the
court’s determination. The evidence does not establish a mere single or isolated
instance of proscribed drug use but rather reveals Mother’s use of and struggle
with prescription medication over a meaningful period of time, which she was
unable to or did not satisfactorily address prior to DCS’s involvement.2 As
noted, the CHINS statute does not require that a court wait until a tragedy
occurs to intervene. See In re A.H., 913 N.E.2d at 306. Based upon the record,
we conclude that the judgment reached by the trial court is not clearly
erroneous.
2
In support of her argument, Mother cites In re S.M., 45 N.E.3d 1252 (Ind. Ct. App. 2015), and In re S.K., 57
N.E.3d 878 (Ind. Ct. App. 2016). In finding that the evidence did not support the CHINS determinations,
the court in those cases, observed that the evidence showed either a prior history of sporadic substance abuse
or an isolated instance of drug use without more. See In re S.M., 45 N.E.3d at 1256 (noting that the mother
had a history of sporadic marijuana use but stopped using marijuana as soon as she realized she was pregnant
and that the substance abuse assessment did not recommend substance abuse treatment); In re S.K., 57
N.E.3d at 883 (observing that the court’s findings indicate nothing more than an isolated use). Here, the trial
court found and the evidence supports the conclusion that Mother had used prescription medication without
a prescription which she obtained off the streets for one or two years prior to DCS’s involvement. Her use of
prescription drugs without a prescription was not sporadic, not an isolated instance, and had not ended prior
to DCS’s assessment. We find In re S.M. and In re S.K. to be distinguishable.
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Conclusion
[18] For the foregoing reasons, we affirm the trial court’s determination that M.J. is
a CHINS.
[19] Affirmed.
May, J., and Pyle, J., concur.
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