In the Matter of M.C. and D.M. (Minor Children), Children in Need of Services, and P.C. (Mother) 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 Oct 04 2017, 7:55 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven J. Halbert Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
David E. Corey
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of M.C. and D.M. October 4, 2017
(Minor Children), Court of Appeals Case No.
49A02-1704-JC-753
Children in Need of Services,
Appeal from the Marion Superior
and Court
P.C. (Mother), The Honorable Marilyn A.
Appellant-Respondent, Moores, Judge
Honorable Diana J. Burleson,
v. Magistrate
Trial Court Cause Nos.
Indiana Department of Child 49D09-1608-JC-3239, - 3240
Services,
Appellee-Petitioner
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Crone, Judge.
Case Summary
[1] P.C. (“Mother”) appeals a trial court order adjudicating her children, M.C. and
D.M. (collectively “the Children”), as children in need of services (“CHINS”).
She asserts that the trial court abused its discretion in considering evidence of
her current substance abuse issues and improperly took judicial notice of her
previous criminal cases. She also challenges the sufficiency of the evidence to
support the CHINS determination. We affirm.
Facts and Procedural History
[2] Mother was involved with the Department of Child Services (“DCS”) of Vigo
County from 2008 through 2013. She voluntarily terminated her parental rights
to three of her children, had her parental rights to her fourth child involuntarily
terminated, and then voluntarily terminated her parental rights to her fifth
child. In November 2013, she gave birth to M.C. In March 2014, Marion
County DCS filed a CHINS petition concerning M.C., due largely to Mother’s
continued use of illegal drugs. Mother admitted to the allegations in the
CHINS petition and participated in ordered services, and the case was closed
successfully on July 1, 2015. Meanwhile, Mother had given birth to D.M. in
March 2015.
[3] In August 2016, acting on a report of suspected drug activity and prostitution at
Mother’s home, DCS initiated proceedings to have the Children adjudicated as
CHINS. The CHINS petition cited Mother’s substance abuse issues, extensive
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history with DCS, and pending criminal charges in Hamilton County. Mother
failed to appear for an initial hearing, and the Children were ordered removed
from her care. For approximately one week, the Children’s whereabouts were
unknown. On September 6, 2016, DCS located them at Mother’s home and
removed them from her care.
[4] Mother tested positive for methamphetamine (“meth”) and marijuana on
September 21, 2016. At the pretrial hearing the following week, the court
ordered her to take a drug screen, and she refused. She tested positive for meth
on October 28, 2016.
[5] In November 2016, police conducted a raid at Mother’s home. Mother’s
neighbor and block captain Doris Alderman observed eleven people handcuffed
in Mother’s yard, and Mother was arrested. She appeared for the CHINS
factfinding on November 30, 2016, and tested positive for THC.1 Mother’s
DCS family case manager (“FCM”) testified concerning Mother’s instability
and “extensive history” with DCS and recommended supervised visitation, a
substance abuse assessment, therapy, and random drug screens. Id. at 30.
Mother’s drug screen services were suspended due to noncooperation.
[6] On February 28, 2017, the trial court issued an order with findings of fact and
conclusions thereon, adjudicating the Children as CHINS. In its findings, the
trial court cited Mother’s extensive history with DCS, her criminal history, her
1
THC is the active ingredient in marijuana.
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continued drug use and positive screens, and criminal activity occurring at her
home. Following a March 2017 CHINS disposition hearing, the court ordered
that the Children remain in foster care and that Mother participate in services.
[7] Mother now appeals.2 Additional facts will be provided as necessary.
Discussion and Decision
Section 1 – The trial court acted within its discretion in
admitting evidence of Mother’s current substance abuse
issues.
[8] Mother challenges the trial court’s admission of evidence concerning her
current use of illegal drugs. We review a trial court’s admission or exclusion of
evidence for an abuse of discretion. In re. Des.B., 2 N.E.3d 828, 834 (Ind. Ct.
App. 2014). A trial court abuses its discretion only if its decision is clearly
against the logic and effect of the facts and circumstances before it and affects
the substantial rights of a party. Id. Mother asserts that she lacked sufficient
notice that her current drug use would be introduced in the CHINS
proceedings. Although she does not characterize her argument as a due process
claim, we note that due process protections are vital at all stages of CHINS
proceedings because every CHINS proceeding has the potential to interfere
with a parent’s right to raise his or her children. In re L.C., 23 N.E.3d 37, 40
(Ind. Ct. App. 2015), trans. denied. This ultimately means that the parent in
2
The Children’s fathers are not participating in this appeal.
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CHINS proceedings must be provided “the opportunity to be heard at a
meaningful time and in a meaningful manner.” Id. (quoting In re G.P., 4
N.E.3d 1158, 1166 (Ind. 2014)).
[9] Here, the CHINS petition included the following allegations pertaining to
Mother’s drug use:3
d. Mother has a history of illegal drug use, specifically marijuana
and methamphetamine.
e. M.C. was removed from Mother’s care by the DCS in 2014
due to being born drug exposed.
f. Mother was recently charged in June 2016 for possession of a
syringe and possession of a controlled substance.
g. Mother refused to submit to a drug screen [].
Appellant’s App. Vol. 2 at 42.
[10] On the third day of the factfinding hearing, Mother objected to witness
testimony concerning her recent positive drug screens. In overruling her
objection, the trial court noted that Mother had failed to object earlier when
similar evidence was introduced. We also note that DCS requested and was
granted permission to amend the pleadings to conform to the evidence pursuant
to Indiana Trial Rule 15(B). Mother has not challenged the trial court’s ruling
3
To the extent that various petitions and orders identify Mother and the Children by name, we identify them
as previously indicated in this decision.
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in her brief on appeal; as such, the issue is not reviewable. See Jeffrey v.
Methodist Hosps., 956 N.E.2d 151, 158 n.9 (Ind. Ct. App. 2011) (failure to raise
grounds for error in argument section of appellant’s brief operates as waiver
under Appellate Rule 46(A)(8)). In short, the CHINS petition allegations and
unchallenged evidence were sufficient to place Mother on notice that her past
and current drug use would be issues in the CHINS proceedings. As such, the
trial court acted within its discretion in considering the evidence concerning
Mother’s current drug use.
Section 2 – The trial court acted within its discretion in taking
judicial notice of records in criminal cases involving Mother.
[11] In a closely related argument, Mother maintains that the trial court abused its
discretion in taking judicial notice of the records in criminal cases against her.
Before 2010, the general rule was that an Indiana trial court was not permitted
to take judicial notice even of its own records in cases on related matters with
related parties. In re D.K., 968 N.E.2d 792, 796 (Ind. Ct. App. 2012). However,
in 2010, Indiana Evidence Rule 201 was amended to permit a court to judicially
notice the existence of “records of a court of this state.” Ind. Evidence Rule
201(a)(2)(C). The challenged records involve charges against Mother for
substance abuse offenses, and Mother’s substance abuse was an important and
related issue in the CHINS determination. She observes that judicial notice
extends only to the existence of those cases, not to the facts therein.
Nevertheless, we note that her point of contention concerns her criminal charge
for possession of a syringe and the fact that she is a diabetic with a lawful
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reason to possess a syringe. In its order following the pretrial hearing, the trial
court indicated that it took into consideration that Mother’s criminal charge
would be (but had not yet been) dismissed due to her status as a diabetic.
Appellant’s App. Vol. 2 at 87. Mother has failed to establish an abuse of
discretion affecting her substantial rights. The trial court acted within its
discretion in taking judicial notice of Mother’s criminal cases.
Section 3 – The evidence is sufficient to support the CHINS
determination.
[1] Mother also challenges the sufficiency of the evidence to support the CHINS
determination. When reviewing the sufficiency of evidence, we give due regard
to the trial court’s ability to assess the credibility of witnesses. Des.B., 2 N.E.3d
at 836. We neither reweigh evidence nor judge witness credibility; rather, we
consider only the evidence and reasonable inferences most favorable to the trial
court’s decision. In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012). Where the
trial court issues findings of fact and conclusions thereon, we apply a two-tiered
standard of review. In re R.P., 949 N.E.2d 395, 400 (Ind. Ct. App. 2011). We
consider first whether the evidence supports the findings and then whether the
findings support the judgment. Id. We will set aside the trial court’s findings
and conclusions only if they are clearly erroneous and a review of the record
leaves us firmly convinced that a mistake has been made. Id. “Findings are
clearly erroneous only when the record contains no evidence to support them
either directly or by inference.” K.B. v. Ind. Dep’t of Child Servs., 24 N.E.3d 997,
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1001-02 (Ind. Ct. App. 2015) (citation omitted). “A judgment is clearly
erroneous if it relies on an incorrect legal standard.” Id. at 1002.
[2] In a CHINS proceeding, DCS bears the burden of proving by a preponderance
of the evidence that a child meets the statutory definition of a CHINS. In re
N.E., 919 N.E.2d 102, 105 (Ind. 2010). To meet its burden of establishing
CHINS status, the State must prove that the child is under age eighteen,
(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.
Ind. Code § 31-34-1-1.
[3] Although the acts or omissions of one or both parents can cause a condition
that creates the need for court intervention, the CHINS designation focuses on
the condition of the child rather than on an act or omission of the parent(s).
N.E., 919 N.E.2d at 105. In other words, despite a “certain implication of
parental fault in many CHINS adjudications, the truth of the matter is that a
CHINS adjudication is simply that – a determination that a child is in need of
services.” Id. (citations omitted).
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[4] Mother admits to her history of drug abuse but maintains that DCS failed to
establish that the Children were seriously endangered or impaired as a result of
her alleged inability to provide necessary care and supervision without the
court’s coercive intervention. She claims that the trial court improperly based
its decision on her past drug use and relies on cases in which other panels of this
Court found the evidence of endangerment insufficient to support a CHINS
determination. See In re S.K., 57 N.E.3d 878, 883 (Ind. Ct. App. 2016) (mother
and boyfriend’s positive test for amphetamine and meth on day when they were
children’s sole caregivers not of itself sufficient to establish serious
endangerment); see also In re S.M., 45 N.E.3d 1252, 1256-57 (Ind. Ct. App.
2015) (where child’s meconium tested positive for marijuana at birth and where
all mother’s drug screens during CHINS pendency were clean, Court held that
a history – whether of substance abuse, DCS contacts, or crimes – is not itself
sufficient to establish serious endangerment).
[5] The S.K. and S.M. courts emphasized that a finding of serious endangerment
cannot be based solely on previous drug use or criminal activity – whether
isolated or habitual. In contrast, here, Mother failed drug screens during the
pendency of the CHINS proceedings. Moreover, the evidence of regular, illicit
activity taking place on Mother’s property concerned the time period after the
previous CHINS case had closed and during the pendency of the present
CHINS case. For example, neighbor Alderman reported that she observed a
police raid at Mother’s home in which eleven people, including Mother, were
handcuffed and placed in a “paddy wagon.” Tr. Vol. 2 at 16. As a block
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captain, Alderman had worked with drug task force officers to recognize signs
of suspicious activities and simply testified that she regularly observed what she
perceived to be drug use, needle sharing, and prostitution occurring outside
Mother’s house, in her yard, and in vehicles parked outside Mother’s home and
in front of her own home. Id. at 15-16, 19; see, e.g., Id. at 20-21 (Alderman’s
description of seeing money exchanged for oral sex in vehicle with dome light
illuminated in front of house). To the extent that Mother asks us to discount
Alderman’s testimony because she lacked formal training in detecting drug
activity, we note that Alderman was cross-examined on this subject, and we
remind Mother that we may not reweigh evidence or reassess witness
credibility.4 Alderman also recounted a specific incident prior to the Children’s
removal where D.M. was in a stroller on the porch with Mother and a man,
and the two adults were sticking a needle in Mother’s leg, the stroller “tumbled
down the stairs” with D.M. in it. Id. at 14. Alderman also testified, without
objection, that she would not allow her own child to go near Mother’s house
“because it’s not safe for any child.” Id. at 17. Mother’s drug use and criminal
activities were present, not previous, activities from which the trial court could
reasonably draw an inference of serious endangerment to the Children.
4
At one point early in Alderman’s testimony, she referenced seeing “deliveries” and “drug usage.” Tr. Vol.
2 at 14. Mother objected on the basis that Alderman was “not qualified to speak on that,” “was not inside
the house,” and “does not know the people who have come and gone.” Id. The trial court “sustain[ed] the
objection for now” but left it open for Alderman to testify “if she’s got any more information or background.”
Id. at 15. Alderman testified at length and was cross-examined concerning the extent of her informal training
on recognizing suspicious activity in the neighborhood.
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[6] Mother also cites her successful completion of the previous CHINS case
involving M.C. as evidence that she has improved her lifestyle and no longer
needs court intervention. However, she admitted to DCS workers that she had
used marijuana and methamphetamine for an extended time, stopped for a
while, and resumed her drug use in 2016 when D.M. turned one. Id. at 28.
The very fact that Mother resumed her drug use shortly after she had ceased
being under the coercive intervention of the previous CHINS court undercuts
her argument that she does not now need that same type of coercive
intervention to help her get clean. Even after the trial court intervened and
ordered the Children’s removal, Mother was uncooperative and pretended not
to be home on several occasions when DCS came to her door. One of those
times, she took the Children and drove away.
[7] In sum, the evidence of Mother’s current drug use, noncooperation, and
criminal activity is sufficient to support a finding of serious endangerment to the
Children stemming from her inability or unwillingness to make and sustain
necessary changes in her lifestyle without court intervention. Mother has failed
to demonstrate clear error in the trial court’s adjudication of the Children as
CHINS. Accordingly, we affirm.
[8] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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