In the Matter of K.H., A Child Alleged to be in Need of Services, C.M. (Mother) and P.H. (Father) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 20 2020, 8:26 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Dorothy Ferguson Curtis T. Hill, Jr.
Anderson, Indiana Attorney General
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of K.H., a Child November 20, 2020
Alleged to be in Need of Court of Appeals Case No.
Services, 20A-JC-1137
C.M. (Mother) and Appeal from the
P.H. (Father), Madison Circuit Court
The Honorable
Appellants-Respondents,
G. George Pancol, Judge
v. Trial Court Cause No.
48C02-2003-JC-93
Indiana Department of Child
Services,
Appellee-Petitioner
Vaidik, Judge.
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Case Summary
[1] C.M. (“Mother”) and P.H. (“Father”) (collectively “Parents”) appeal the trial
court’s determination that their daughter, K.H. (“Child”), is a Child in Need of
Services (CHINS). We affirm.
Facts and Procedural History
[2] Mother and Father are the biological parents of Child, born in November 2014.
In 2016, the Department of Child Services (DCS) assessed Parents for drug use.
Another assessment, also for drug use, was conducted in 2019. In March of this
year, DCS again assessed Parents after receiving a report that Parents were
“using substances” and “allowing [Child’s] grandmother to watch her while
using substances.” Tr. p. 30. On March 10, Family Case Manager (FCM)
Caycia Ransbottom went to Parents’ home to make the assessment. Mother,
Child’s maternal grandmother, and Child were present at the home. The home
“smelled like marijuana,” and Mother was “very manic,” “yelling,” “pacing,”
and “slurring her words.” Id. at 33, 41. Mother and the grandmother admitted
they were “using [marijuana] that day,” but both refused to take a drug test. Id.
at 41. FCM Ransbottom left and returned later that day with law enforcement.
This time, Mother took a drug test and “admitted that there would be cocaine
on her drug screen” and that Father would test positive for marijuana and
cocaine. Id. at 33. Mother’s test was positive for cocaine and marijuana. Child’s
maternal grandmother also took a drug test, which was positive for marijuana.
When Father arrived home later during the assessment, he was not drug tested.
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Finding the report “substantiated against [Mother] and grandmother,” DCS
removed Child from the home and placed her with her paternal grandmother.
Id. at 31. The following day, DCS filed a petition alleging Child was a CHINS
because there was “no sober adult care giver present in [Child’s] home.”
Appellant’s App. Vol. II p. 45.
[3] In May, the trial court conducted the fact-finding hearing. The court admitted
two exhibits—which Parents stipulated to—showing Mother had two positive
drug screens. The first drug screen was taken at the assessment on March 10.
The second was taken on March 19 and was positive for “low level[s]” of THC.
Tr. p. 49. All other drug tests for Mother were negative.
[4] FCM Ransbottom then testified about the events leading to Child’s removal,
specifically that Child was removed “because she did not have a sober
caregiver” and was at “high risk” of “future abuse or neglect” because DCS had
previously been involved with the family due to Parents’ drug use. Id. at 35, 36.
FCM Timothy Johnson, who took over for FCM Ransbottom after Child’s
removal, testified he recommended Parents undergo a “substance use
assessment” and counseling and that he did not “believe that [Parents] would
do so on their own[.]” Id. at 45, 49.
[5] After DCS presented its case, Parents moved to dismiss the case. The following
exchange occurred:
[Parents’ Attorney]: . . . I would, at this time, move to dismiss. I
don’t feel that the department has met their burden of proof at
this time to allege that the child is a child in need of services. The
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only thing that they proved is that my clients failed one (1) drug
screen and [] all the other testimony presented here today is that
the child has been provided for and safe [in] my clients[’] care.
The Court: Let me just tell you where I am right now without
precluding you because I haven’t heard your side of the case yet,
but we have parents that have stipulated to a drug screen and
sounds like admitted and that’s the first step and unfortunately
mom didn’t even get to have her child sleep with her on mother’s
day so my position at this point is, that I’m willing to return this
child based on drug screens to the mother and father but I am
going to make at this point a finding that they would benefit from
the services and I would also make a statement on the record that
they do a substance abuse evaluation, follow the
recommendations and show me continued clean drug screens
and completion of that treatment then I will make a commitment
that at that point I would feel that they’re ready and I will dismiss
the case. So if you want to present evidence that’s where I am at
this point.
Id. at 52-53. Later, before Parents presented their evidence, the trial court stated,
“I do need to warn you that I am gonna consider this evidence as well as the
evidence I already heard for placement.” Id. at 55.
[6] After Parents presented their case, the court stated, “I didn’t find any reason to
change my position either way, so I’m gonna make a finding that this child is in
need of services . . . .” Id. at 64. A dispositional hearing was held immediately
thereafter, and the court ordered Child returned to Parents but required them to
submit to random drug tests and complete a substance-abuse evaluation.
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[7] Parents now appeal.1
Discussion and Decision
I. Due Process
[8] Parents contend the trial court violated their due-process rights. Due-process
protections are vital at all stages of CHINS proceedings because “[e]very
CHINS proceeding has the potential to interfere with the rights of parents in the
upbringing of their children.” In re K.D., 962 N.E.2d 1249, 1258 (Ind. 2012)
(citation omitted). Due process requires the opportunity to be heard at a
meaningful time and in a meaningful manner. Thompson v. Clark Cnty. Div. of
Family & Children, 791 N.E.2d 792, 795 (Ind. Ct. App. 2003), trans. denied.
Parents did not raise a due-process claim before the trial court, and thus we may
consider it waived. See Hite v. Vanderburgh Cnty. Office of Family & Children, 845
N.E.2d 175, 180 (Ind. Ct. App. 2006). But we prefer to resolve due-process
claims on the merits.
[9] Parents argue their due-process rights were violated because the trial court “had
made a determination as to the evidence prior to [Parents] presenting their case
in chief” and then attempted “to deter them from presenting their case[.]”
Appellant’s Br. p. 14. To support this assertion, Parents point to the trial court’s
1
In September, while this appeal was pending, Parents filed a motion to dismiss in the trial court. As of the
date of this opinion, it has not been ruled on.
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comments before their case-in-chief. However, Parents take these comments out
of context and mischaracterize the record.
[10] The trial court’s comments were in response to Parents moving to dismiss the
case. This prompted the court to reply: “Let me just tell you where I am right
now without precluding you because I haven’t heard your side of the case yet.”
Tr. p. 53. The court then discussed DCS’s evidence and what the court’s
findings would be on that evidence alone. The court concluded by saying, “So if
you want to present evidence, that’s where I am at this point.” Id. The court’s
comments were simply an explanation of its reasoning regarding the motion to
dismiss and how the case could proceed. Parents were then allowed to present
their case.
[11] Furthermore, the trial court did not “deter” Parents from presenting their case
by saying, “I am gonna consider this evidence as well as the evidence I already
heard for placement.” Id. at 55. A review of the entire record reveals that the
trial court had previously suggested—based on the DCS’s evidence—that it was
inclined to return Child to Parents. The court then made sure Parents
understood that if they presented their case, it would consider any new
evidence, which could alter its decision. This far from denied Parents a
meaningful opportunity to be heard. On the contrary, it was an effort to make
sure Parents knew what their options were going forward.
[12] For these reasons, the trial court did not deny Parents their due-process right to
be heard.
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II. Sufficiency
[13] Parents also argue the evidence presented at the fact-finding hearing was
insufficient to support the CHINS finding. When determining whether there is
sufficient evidence to support a CHINS determination, we neither reweigh the
evidence nor judge the credibility of the witnesses. In re D.F., 83 N.E.3d 789,
796 (Ind. Ct. App. 2017). Rather, we consider only the evidence that supports
the trial court’s determination and reasonable inferences drawn therefrom. Id.
[14] The trial court found Child to be a CHINS under Indiana Code section 31-34-1-
1, which provides a child is a CHINS if that child is under eighteen and:
(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
(A) when the parent, guardian, or custodian is financially
able to do so; or
(B) due to the failure, refusal, or inability of the parent,
guardian, or custodian to seek financial or other
reasonable means to do so; and
(2) the child needs care, treatment or rehabilitation that the child:
(A) is not receiving; and
(B) is unlikely to be provided or accepted without the
coercive intervention of the court.
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Ind. Code § 31-34-1-1. DCS has the burden of proving by a preponderance of
the evidence that the child is a CHINS. Ind. Code § 31-34-12-3. In sum, a
CHINS adjudication “requires 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 1283, 1287 (Ind. 2014), reh’g denied.
Parents assert DCS failed to show all three elements. We disagree.
[15] For the first element, the record sufficiently shows Parents’ actions seriously
endangered Child. Parents argue their case is analogous to Perrine v. Marion
County Office of Child Services, where this Court held a single use of
methamphetamine outside the presence of child, without more, was insufficient
to support a CHINS determination. 866 N.E.2d 269, 277 (Ind. Ct. App. 2007).
The facts here differ, as Parents’ drug use was neither limited to a single
instance nor done outside the presence of Child. Mother admitted to FCM
Ransbottom she and Child’s grandmother—the only two adults in the home
with five-year-old Child—had smoked marijuana that day. The home also
smelled of marijuana, and Mother appeared under the influence, acting manic,
yelling, pacing, and slurring her words. Mother’s drug screen revealed she was
positive for cocaine and marijuana. This is sufficient to prove Mother was
caring for Child while under the influence of illegal substances. Failing to
provide such a young child with a sober caregiver endangers them. See In re J.L.,
919 N.E.2d 561, 564 (Ind. Ct. App. 2009) (finding the “endangered” element
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met where the mother used illegal substances while her child slept, leaving the
child “without any responsible adult care and supervision”).
[16] Regarding the second element, Parents argue Child “does not have any unmet
needs.” Appellant’s Br. p. 6. But, as stated above, the record clearly shows
Child lacked sober supervision, an undoubtedly important need for a five-year-
old. As to the third element, there is sufficient evidence this unmet need will not
be met without the coercive intervention of the State. DCS contends coercive
intervention is necessary to meet Child’s need as “it remains to be seen whether
Parents’ sobriety continues without the coercive intervention of the court.”
Appellee’s Br. p. 16. We agree. Concerns about continued drug use are well
founded, as this is Parents’ third involvement with DCS for substance-abuse
issues since Child was born in 2014. Despite this past involvement, both
Parents continued to abuse drugs and leave Child with no sober caregiver. And
even after testing positive for cocaine and marijuana and having Child removed
from the home, Mother failed a subsequent drug screen. FCM Johnson also
testified that, after working with Parents for two months, he did not believe they
would seek out a substance-abuse evaluation or other services on their own.
This is sufficient to show Child’s need for sober supervision will not be met
without coercive intervention.
[17] We conclude the trial court properly found Child to be a CHINS.
[18] Affirmed.
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Bailey, J., and Weissmann, J., concur.
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