In the Matter of: K.S. (Minor Child) Child in Need of Services J.J. (Mother) v. The Indiana Department of Child Services

FILED
Jun 29 2017, 11:19 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel G. Foote Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Marjorie Newell
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: K.S. (Minor June 29, 2017
Child) Court of Appeals Case No.
49A02-1701-JC-38
Child in Need of Services;
Appeal from the Marion Superior
J.J. (Mother), Court
Appellant-Respondent, The Honorable Marilyn Moores,
Judge
v. The Honorable Rosanne Ang,
Magistrate
The Indiana Department of Trial Court Cause No.
Child Services, 49D09-1606-2022
Appellee-Petitioner.
Pyle, Judge.
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Statement of the Case
[1] J.J. (“Mother”) appeals the juvenile court’s order adjudicating her son, K.S.
(“K.S.”), to be a Child in Need of Services (“CHINS”). Mother argues that the
Department of Child Services (“DCS”) failed to prove by a preponderance of
the evidence that K.S.’s physical or mental condition was seriously impaired or
seriously endangered as a result of Mother’s inability, refusal, or neglect to
supply K.S. with necessary food, clothing, shelter, medical care, education, or
supervision. Finding that DCS failed to present evidence, let alone sufficient
evidence, that K.S.’s physical or mental condition was seriously impaired or
seriously endangered and that Mother was unable to supply K.S. with necessary
shelter, we reverse the CHINS adjudication.1
[2] We reverse.
Issue
Whether there is sufficient evidence to support the CHINS
adjudication.
Facts
[3] In June 2016, DCS received a report alleging that Mother had tested positive
for marijuana after giving birth to K.S. Within twenty-four hours of K.S.’s
1
Mother also argues that there is insufficient evidence that K.S. needs care, treatment, or rehabilitation that
was unlikely to be provided without the coercive intervention of the court. Because we reverse the juvenile
court on Mother’s first issue, we need not address the second one.
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birth, DCS Family Case Manager Kwanza Johnson (“FCM Johnson”) went to
Community North Hospital to speak with Mother. When FCM Johnson
arrived at the hospital, Mother appeared to just be waking up. While Mother
was still “pretty groggy,” FCM Johnson explained “what [she] was there for
and the nature of [her] report.” (Tr. 17). Mother, who admitted that she had
used marijuana two months earlier to increase her appetite during her
pregnancy, became very “agitated and irate.” (Tr. 20). Mother refused FCM
Johnson’s request that she submit to another drug screen. Mother told FCM
Johnson that she had been living in a motel before being admitted to the
hospital but that she planned to live with her cousin or mother following her
discharge. Mother, however, refused to give FCM Johnson contact
information for either her cousin or mother.
[4] After stepping out of Mother’s hospital room and speaking with her supervisor
by telephone, FCM Johnson “served [Mother] for court.” (Tr. 22). FCM
Johnson explained that, given Mother’s behavior, DCS “had to restrict access
to [K.S.].” (Tr. 22). The case manager further explained that restricted access
meant that Mother “could not visit with the child or remove the child from the
hospital.” (Tr. 23). When FCM Johnson “served [M]other with the papers for
Court,” Mother “balled the paper up and threw it at [FCM Johnson] and told
[FCM Johnson] to get the ‘f’ out of her room.” (Tr. 26). A few days later,
Mother contacted FCM Johnson and asked if the case manager could explain
what was happening. FCM Johnson returned to the hospital and reviewed
DCS paperwork with Mother. Mother signed the documents as requested.
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FCM Johnson “explained what we were doing and why we were involved . . .
.” (Tr. 27). Mother advised the case manager that after she was released from
the hospital, she would be living at her cousin’s house. Mother was calm and
explained why she had initially been afraid of FCM Johnson. At this time,
K.S. was “feeding well. . . . [T]here was nothing to note other than that.” (Tr.
25). There was no evidence presented by DCS that K.S. tested positive for
marijuana.
[5] DCS immediately filed a petition alleging that K.S. was a CHINS. Specifically,
the petition alleged that Mother, who had admitted using marijuana while she
was pregnant, had failed to provide K.S. with a safe, stable and appropriate
living environment that was free from substance abuse. The petition further
alleged that Mother was homeless and lacked a plan for obtaining and
maintaining stable housing. DCS placed K.S. in foster care upon his discharge
from the hospital.
[6] Testimony at the CHINS fact-finding hearing revealed that after it filed the
petition alleging that K.S. was a CHINS, DCS had referred Mother to home-
based case management services and supervised visitation. Home-based
services case manager Gianna Simpson (“Case Manager Simpson”) testified
that she supervised two visits between Mother and K.S. in June 2016. During
the visits, Mother “was very engaged with her son. . . . She did everything you
expected a mother to do. She was loving, she [fed] him, changed his diaper . . .
.” (Tr. 53). Mother told Case Manager Simpson that she was living with her
cousin; however, visits took place at an agency because Mother told the case
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manager that her cousin did not want visitation at her house. Mother
specifically explained that “she kind of felt like she wasn’t really wanted . . . or
that the stress of everything and the contact with everyone was a little bit much
for her cousin.” (Tr. 48). Mother cancelled a scheduled visitation with K.S. in
July 2016 and, at the time of the CHINS hearing in September and October
2016, Mother had had no further contact with her son.
[7] Further testimony at the fact-finding hearing revealed that DCS Case Manager
Andrea Wilburn (“Case Manager Wilburn”) was assigned to K.S.’s case in
August 2016. When Case Manager Wilburn reached Mother after two weeks
of attempting to contact her, Mother told her that everything was going well.
Case Manager Wilburn further testified that Mother had open referrals for
home-based case work, supervised visitation, random drug screens, and a drug
assessment. The case manager recommended that Mother complete a
parenting assessment because she had not seen K.S. since June 2016. Case
Manager Wilburn also recommended that Mother complete a mental health
assessment.
[8] K.S.’s foster mother testified that K.S. was “developing well, he’s a happy little
. . . baby meeting his milestones, doing well.” (Tr. 65). Also at the hearing,
Mother testified that she worked at a clothing store, was living with her cousin,
and had “[her] own therapist,” who was “outside of a DCS referral.” (Tr. 40).
Mother told the juvenile court the address of her cousin’s house as well as the
name of her therapist.
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[9] Following the hearing, the trial court adjudicated K.S. to be a CHINS.
Specifically, the juvenile court concluded, in relevant part, that:
15. [K.S.’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. [Mother] uses marijuana and does not
have stable housing for herself and her child.
(App. 72-73). Mother appeals the adjudication.
Decision
[10] Mother argues that there is insufficient evidence to support the CHINS
adjudication. When determining whether there is sufficient evidence to support
a CHINS determination, we consider only the evidence most favorable to the
judgment and the reasonable inferences to be drawn therefrom. In re S.D., 2
N.E.3d 1283, 1287 (Ind. 2014). This Court will not reweigh the evidence or
reassess the credibility of the witnesses. Id. at 1286. Where, as here, a juvenile
court’s order contains specific findings of fact and conclusions of law, we
engage in a two-tiered review. In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App.
2014). First, we determine whether the evidence supports the findings, and
then, we determine whether the findings support the judgment. Id. Findings
are clearly erroneous when there are no facts or inferences to be drawn
therefrom that support them. Id. A judgment is clearly erroneous if the
findings do not support the juvenile court’s conclusions or the conclusions do
not support the resulting judgment. Id.Court of Appeals of Indiana | Opinion 49A02-1701-JC-38 | June 29, 2017 Page 6 of 9
[11] A mother’s constitutionally protected right to raise her child is not without
limitation. E.P. v. Marion Cty. Office of Family and Children, 653 N.E.2d 1026,
1031-32 (Ind. Ct. App. 1995). This is because the State has a compelling
interest in protecting the welfare of the child by intervening in the parent-child
relationship when parental neglect, abuse, or abandonment is at issue. Id. at
1032.
[12] A CHINS proceeding is a civil action. In re N.E., 919 N.E.2d 102, 105 (Ind.
2010). Therefore, DCS must prove by a preponderance of the evidence that the
child is a CHINS as defined by the juvenile code. Id. INDIANA CODE § 31-34-
1-1 provides that a child is a CHINS 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 the 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.
[13] A CHINS designation focuses on the child’s condition rather than the parent’s
culpability. In re N.E., 919 N.E.2d at 105. The purpose of a CHINS
adjudication is to provide proper services for the benefit of the child, not to
punish the parent. Id. at 106.
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[14] Here, Mother specifically contends that DCS failed to prove by a
preponderance of the evidence that K.S.’s physical or mental condition was
seriously impaired or seriously endangered as a result of Mother’s inability,
refusal, or neglect to supply K.S. with necessary food, clothing, shelter, medical
care, education, or supervision. We agree.
[15] As set forth in the relevant CHINS statute, it is DCS’s burden to prove that a
parent’s actions or inactions have seriously endangered her child and that the
child’s specific needs have not been met. The trial court adjudicated K.S. to be
a CHINS after concluding that Mother used marijuana and did not have stable
housing. As to the first finding, Mother admitted that she had used marijuana
two months before K.S.’s birth to increase her appetite during pregnancy.
However, there is no evidence showing how, specifically, Mother’s use of
marijuana two months prior to giving birth seriously impaired or seriously
endangered K.S. DCS presented no evidence that he tested positive for
marijuana, or, even if he did, how a positive marijuana test would have or did
endanger him. See In the Matter of S.M., 45 N.E.3d 1252, 1255-56 (Ind. Ct. App.
2015) (concluding that there was no evidence presented that infant H.G. was
endangered when he was born with marijuana-positive meconium). In fact,
testimony at the hearing revealed that during his first days of life, K.S. was
“feeding well” and that there was nothing other to note. (Tr. 25). During
supervised visits with K.S. shortly after his birth, Mother was engaged and
loving and “did everything you expected a mother to do.” (Tr. 53). At the
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time of the fact-finding hearing, K.S.’s foster mother testified that he was
developing well and meeting his milestones.
[16] As to the second finding, DCS presented absolutely no evidence that Mother
did not have stable housing. Rather, our review of the evidence reveals that
within twenty-four hours of K.S.’s birth, Mother told FCM Johnson that she
and her son planned to live with her cousin when they were discharged from
the hospital. Mother’s testimony at the fact-finding hearing confirmed that
Mother had moved in with her cousin and had lived there for several months.
Mother’s statement to Case Manager Simpson that she felt that she “wasn’t
really wanted” at her cousin’s house does not support the juvenile court’s
finding that Mother did not have stable housing. (Tr. 48). Although the trial
court may have been concerned that at some point, Mother and K.S. would be
asked to move out of Mother’s cousin’s house, at the time of the fact-finding
hearing, this had not happened. See S.M. (explaining that future concerns
rather than present facts are not enough to support a CHINS adjudication).
Based upon the totality of this evidence, there is insufficient evidence to support
the CHINS adjudication.
[17] Reversed.
May, J., and Brown, J., concur.
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