In Re the Matter of L.P., Alleged Child In Need of Services, S.P. and M.H. v. Indiana Department of Child Services and Miami County CASA Program

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before May 28 2013, 9:45 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
CARA SCHAEFER WIENEKE ROBERT J. HENKE
Special Assistant to the State Public Defender Indiana Department of Child Services
Plainfield, Indiana Indianapolis, Indiana
PATRICIA CARESS MCMATH NATALIE FANTETTI
Indianapolis, Indiana Indiana Department of Child Services
Peru, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE MATTER OF L.P., )
ALLEGED CHILD IN NEED OF SERVICES, )
)
S.P. and M.H., )
)
Appellants-Respondents, )
)
vs. ) No. 52A02-1212-JC-1028
)
INDIANA DEPARTMENT OF CHILD SERVICES )
and MIAMI COUNTY CASA PROGRAM, )
)
Appellees-Petitioners. )
APPEAL FROM THE MIAMI CIRCUIT COURT
The Honorable Douglas P. Morgan, Judge Pro Tempore
Cause No. 52C01-1212-JC-90
May 28, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
S.P. (“Father”) and M.H. (“Mother”) (collectively, “the Parents”) appeal the trial
court’s adjudication of their child, L.P., as a child in need of services (“CHINS”). The
Parents present three issues for our review, which we consolidate and restate as whether
the trial court abused its discretion when it adjudicated L.P. to be a CHINS. We affirm.
FACTS AND PROCEDURAL HISTORY1
On October 1, 2012, Sergeant Ronald Dausch of the Miami County Sheriff’s
Department went to the Parents’ residence to serve a protective order on Father. When
he arrived, Sergeant Dausch observed Father standing in front of the storm door, and
Father “immediately made a quick movement” to put down something in his hand. Fact-
Finding Transcript at 5. Sergeant Dausch approached Father and explained why he had
arrived. Sergeant Dausch then “detected the odor of what [he] knew to be burnt
marijuana.” Id. at 6.
Sergeant Dausch entered the Parents’ house and saw Mother and L.P. At the time,
L.P. was seven months old. He then conducted a search of the Parents’ house, during
which he discovered marijuana in various locations, including on a couch and inside a
baby food jar.2 He further discovered “one or two pipes” and “a digital scale.” Id.
Sergeant Dausch asked Father about the marijuana, and “he took ownership” of it. Id.
Sergeant Dausch then contacted the Department of Child Services (“DCS”) and arrested
the Parents.
1
Father’s statement of the facts in his appellate brief is not consistent with our standard of
review, contrary to Indiana Appellate Rule 46(A)(6)(b).
2
The amount of marijuana discovered in the Parents’ home is not in the record.
2
On October 3, the DCS filed its petition alleging L.P. to be a CHINS. The court
held a fact-finding hearing on November 21. At that hearing, Family Case Manager
David Balmer (“FCM Balmer”) testified that he had talked to Father about Father’s drug
use. FCM Balmer then testified, without objection, that Father “has admitted to long[-
]term chronic use since the age of approximately nine years. [H]e says that he does it as
a form of self-medication because he has some mental health and learning disab[ilites]
and that’s how he copes with the problems.” Id. at 17. FCM Balmer further testified as
follows:
Q How is [L.P.’s] physical or mental condition seriously impaired or
endangered as a result of her parents?
A Well, at this point, [Mother] is incarcerated and unable to care for
her child, . . . which would have left the caring to [Father,] who admits to
being a long[-]term chronic marijuana user. If he’s under the influence of
marijuana while trying to provide care for [L.P.], it can lead to lapses in
judgment, potentially endangering her safety and well-being. If there were
to be an emergency and he was under the influence, he may not be able to
respond in an appropriate manner . . . .
Id. at 19. The court adjudicated L.P. to be a CHINS. This appeal ensued.
DISCUSSION AND DECISION
The Parents appeal the trial court’s adjudication of L.P. as a CHINS. Indiana
Code Section 31-34-1-1 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 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
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provided or accepted without the coercive intervention of the court. The DCS has the
burden of proving by a preponderance of the evidence that a child is a CHINS. Ind. Code
§ 31-34-12-3; Davis v. Marion Cnty. Dep’t of Child Servs. (In re M.W.), 869 N.E.2d
1267, 1270 (Ind. Ct. App. 2007). When reviewing the sufficiency of the evidence to
support a CHINS adjudication, we consider only the evidence favorable to the judgment
and the reasonable inferences raised by that evidence. In re M.W., 869 N.E.2d at 1270.
This court will not reweigh evidence or judge witnesses’ credibility. Id.
Moreover, the trial court entered findings of fact and conclusions thereon pursuant
to Indiana Trial Rule 52(A). We may not set aside the findings or judgment unless they
are clearly erroneous. Ind. Trial R. 52(A); Menard, Inc. v. Dage–MTI, Inc., 726 N.E.2d
1206, 1210 (Ind. 2000). In our review, we first consider whether the evidence supports
the factual findings. Menard, 726 N.E.2d at 1210. Second, we consider whether the
findings support the judgment. Id. “Findings are clearly erroneous only when the record
contains no facts to support them either directly or by inference.” Quillen v. Quillen, 671
N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous if it relies on an incorrect
legal standard. Menard, 726 N.E.2d at 1210. We give due regard to the trial court’s
ability to assess the credibility of witnesses. T.R. 52(A). While we defer substantially to
findings of fact, we do not do so to conclusions of law. Menard, 726 N.E.2d at 1210.
We do not reweigh the evidence; rather we consider the evidence most favorable to the
judgment with all reasonable inferences drawn in favor of the judgment. Yoon v. Yoon,
711 N.E.2d 1265, 1268 (Ind. 1999).
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The Parents first assert that the trial court’s order is clearly erroneous because
there is no evidence that Father is a chronic marijuana user, as opposed to drugs
generally. See Father’s Br. at 4; Mother’s Br. at 5-6. We are not persuaded by the
purported relevance of the distinction. Father admitted to being a “long[-]term chronic
[drug] use[r] since the age of approximately nine years . . . .” Fact-Finding Transcript at
17. Whether he chronically uses marijuana, other drugs, or a combination of marijuana
and other drugs, Father’s admission demonstrates a clear problem with drug use. We will
not reverse the court’s judgment on this purported distinction.
The Parents next assert that the court’s order is contrary to this court’s opinion in
Perrine v. Marion County Office of Child Services, 866 N.E.2d 269 (Ind. Ct. App. 2007).
In Perrine, mother was arrested as part of a routine probation sweep, which located
paraphernalia commonly used for methamphetamine consumption in the bedroom of a
houseguest. Mother admitted to using methamphetamine a few days prior to the
probation sweep. As a result of her arrest, the DCS filed a petition alleging her fourteen-
year-old daughter was a CHINS based on mother’s failure to provide her child with a safe
and stable home, free from drug use and neglect. The trial court found the child to be a
CHINS. In reviewing the evidence, we noted that the evidence did not support a finding
that mother used methamphetamine in front of her daughter. Id. at 276. We reversed the
trial court’s determination on appeal, finding that a “single admitted use of
methamphetamine, outside the presence of the child and without more, is insufficient to
support a CHINS determination.” Id. at 277.
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Perrine is plainly inapposite to the instant facts. Father admitted he was a chronic
drug user, saying “he does it as a form of self-medication.” Fact-Finding Transcript at
17. Sergeant Dausch observed Father smoking marijuana in the house with L.P. on
October 1, 2012. Sergeant Dausch further discovered marijuana scattered throughout the
house, including on a couch and in a baby food jar. These facts go well beyond a “single
admitted use . . . outside the presence of the child and without more . . . .” Perrine, 866
N.E.2d at 277.3
Finally, while Mother separately argues that “there is no evidence [she] uses drugs
in or out of L.P.’s presence,” see Mother’s Br. at 6, that fact is not persuasive. As
discussed above, the evidence most favorable to the trial court’s judgment demonstrates
that Father, with Mother’s knowledge, routinely used drugs and possessed marijuana in
the home with the child. As the trial court concluded: “This is not a one[-]time event
outside the child’s presence but instead is a daily feature of her life and environment.”
Mother’s App. at 10. The Parents’ arguments on appeal amount to requests for this court
to reweigh the evidence, which we will not do. The Parents cannot demonstrate that the
trial court’s judgment is clearly erroneous, and we affirm the court’s adjudication of L.P.
as a CHINS.
Affirmed.
BAILEY, J., and BARNES, J., concur.
3
Insofar as the Parents separately assert that this evidence “did not show that [Father’s marijuana
use] was a daily feature of L.P.’s life and environment,” see Father’s Br. at 7, for the same reasons Perrine
is inapposite we reject this argument.
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