In the Matter of A.C. and P.C., Children in Need of Services, K.C. and R.C. (Parents) v. Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jun 05 2020, 8:25 am
regarded as precedent or cited before any
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 K.C. ATTORNEYS FOR APPELLEE
Sybil T. Sharvelle Robert J. Henke
Truitt Ray Law Monika Prekopa Talbot
Lafayette, Indiana Deputy Attorneys General
Indianapolis, Indiana
ATTORNEY FOR APPELLANT R.C.
Benjamin J. Church
Church Law Office
Monticello, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of A.C. and P.C., June 5, 2020
Children in Need of Services, Court of Appeals Case No.
19A-JC-2706
K.C. and R.C. (Parents),
Appeal from the
Appellants-Respondents, White Circuit Court
v. The Honorable
Jason A. Thompson, Judge
Indiana Department of Child Trial Court Cause Nos.
Services, 91C01-1907-JC-20
91C01-1907-JC-21
Appellee-Petitioner.
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Kirsch, Judge.
[1] K.C. (“Mother”) and R.C. (“Father”) appeal the trial court’s determination that
A.C and P.C. were children in need of services (“CHINS”). Mother and Father
(“Parents”) raise two issues, but we address only one, which we restate as
whether the juvenile court committed clear error in ruling that A.C. and P.C
were CHINS.1
[2] We affirm.
Facts and Procedural History
[3] Mother and Father married in 2013. Tr. Vol. II at 119. They live with their
children, A.C., born in February of 2008, and P.C., born in May of 2017.
Appellants’ App. Vol. II at 21-23. Mother is the biological parent of both A.C.
and P.C. (collectively, “Children”), and Father is the biological parent of P.C.,
and A.C. is his stepson. Tr. Vol. II at 117, 158.
[4] Beginning in August 2017, DCS received multiple reports that there was
physical abuse, domestic violence, and drug use in the home. Id. at 8. On
1
In Parents’ other issue, they contend the evidence does not support Finding #10, in which the juvenile court
found: “Mother and Father both have a defensive attitude, blaming others, and [are] not taking responsibility or
action to correct the problems.” Appellants’ App. Vol. II at 67 (emphasis added). Parents claim their efforts to
remedy their problems show that Finding #10 is clearly erroneous, and the Department of Child Services
agrees. Because this point is not disputed and also bears no impact on our resolution of this appeal, we focus
only on the question of whether the CHINS determination, in light of the other findings and evidence, was
clearly erroneous.
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September 27, 2018, DCS received a report that there was methamphetamine
use in the household. Id. In October 2018, DCS received a report that Parents
used drugs and that Father was “belligerent at the school.” Id. On March 8,
2019, DCS received a report that Parents had used methamphetamine and were
involved in domestic violence. Id. On March 8, 2019, Family Case Manager
(“FCM”) Blake Denton (“FCM Denton”) assessed the family and spoke with
Father. Id. at 35.
[5] On June 8, 2019, FCM Melissa Barrett (“FCM Barrett”) received a report about
domestic violence and substance abuse at Parents’ home. Id. at 8. The report
alleged that Mother had left the residence with Children. Id. FCM Barrett
called Mother, and the two arranged to meet the following day, on June 9,
2020. Id. at 11. At the meeting, Mother told FCM Barrett that she and Father
had fought, so she and Children left home while Father was in the shower. Id.
at 12. Mother also said that, three weeks earlier, she and Father had argued
and Father grabbed her by the neck, shoved her against the wall, and choked
her. Id. Mother said that she fought back and scratched Father’s face. Id.
Mother said that Father’s “temper would get bad enough to where it would lead
to physical violence.” Id. at 12-13.
[6] FCM Barrett noticed that Mother’s physical appearance was consistent with
drug use. Id. at 15. Mother had round, healed sores all over her arms, chest,
and face. Id. She also had an open sore on her left chin. Id. Based on her
training and experience, FCM Barrett concluded that these sores might indicate
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methamphetamine use by Mother. Id. Mother’s unkempt appearance also
aroused FCM Barrett’s suspicions that Mother was using drugs, so FCM
Barrett asked Mother if she was using illegal drugs. Id. Mother denied using
drugs but refused to take a drug screen to corroborate her denial. Id.
[7] Later that same day, Mother texted FCM Barrett that Father had locked
himself inside the house with P.C. Id. at 16. FCM Barrett called 911 and met
Parents and the police at the home. Id. at 17. Father appeared agitated. Id.
Mother said that when she had earlier arrived at the home, she and Father
argued, and Father called her names. Id. The police arrested Father because he
had open warrants on unrelated matters. Id. at 17-18, 22-23. The domestic
violence incidents raised FCM Barrett’s concern for the safety of Children. Id.
at 18.
[8] On June 10, 2019, FCM Denton was assigned to the case. Id. at 32-33. FCM
Denton learned that there was a no-contact order protecting Mother, Children,
and Maternal Great-Grandfather from Father. Id. at 17, 39. FCM Denton then
contacted Mother and asked her to take a drug screen, but Mother refused. Id.
at 33. FCM Denton and Mother exchanged text messages in June and
arranged a meeting for late June, but Mother cancelled the meeting at the last
minute, allegedly because of her work schedule. Id. at 34-35, 37. FCM Denton
was finally able to meet with Mother on July 5, 2019, and he learned that
Father was back in the home. Tr. Vol. II at 37.
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[9] On July 8, 2019, the Indiana Department of Child Services (“DCS”) filed a
verified petition alleging Children to be CHINS. Appellants’ App. Vol. II at 21-
23. The primary allegations in the petition pertained to drug use and domestic
violence. Id. The same day, DCS filed a verified petition to remove Father
from the residence. Id. at 25-26. After holding an initial hearing on July 9,
2019, the juvenile court ordered Father to be removed from the home. Id. at 40.
[10] The next day, FCM Janie Erzinger (“FCM Erzinger”) met the family. Tr. Vol.
II at 52. By that time, the protective order was back in place through the
CHINS case, and Father had been removed from the home.2 Id. FCM
Erzinger offered to facilitate supervised visits between Father and Children. Id.
During the first visitation, on July 9, 2018, Father cried and made inappropriate
and sarcastic comments to A.C. about DCS. Id. at 53. Among other things,
Father said: “DCS doesn’t need to be involved. This case is nothing but lies.”
Id. at 54. FCM Erzinger spent forty-five minutes of the one-hour visit with
Father, away from Children, trying to calm him down. Id. at 53. FCM
Erzinger then visited Mother, who admitted to having used illegal drugs, and
then they, with help from Maternal Great-Grandfather, created a safety plan
that if Mother used illegal drugs again, she would tell Maternal Great-
2
The protective order has since been lifted. Tr. Vol. II at 122.
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Grandfather, who would then take care of Children. Id. at 55-56. Around this
time, child P.C. tested positive for methamphetamine. Id. at 55.
[11] Afterwards, FCM Erzinger often tried to contact Parents, but “there was a lot
of evasiveness.” Id. at 57. When FCM Erzinger went to the house, no one
answered the door. Id. Father never communicated with FCM Erzinger, and
Mother’s communication with FCM Erzinger was sporadic. Id.
[12] On July 30, 2019, Parents participated in a family team meeting. Id. Father
was agitated and belligerent, and he kept leaving the room. Id. at 58. Father
accused DCS of “setting him up” with the drug testing because he had smoked
THC in the past and believed that DCS would hold it against him if the test
came up positive. Id. Father repeatedly claimed that the family had no
problems, including domestic violence, and did not need services. Id. at 59.
The next day, the home-based case manager told FCM Erzinger that Father
said his drug test would be positive for methamphetamine “because the person
he stayed with was actively using.” Id. at 59-60.
[13] Communication with Parents continued to be sporadic. Id. at 61. Whenever
FCM Erzinger stopped by the house, there was no answer. Id. at 60. Mother
cancelled appointments at the last minute, and Father did not communicate
with FCM Erzinger. Id. DCS was concerned about Father being in the home
because there had been a report about Father going there to shower and do
laundry. Id. at 61. Therefore, DCS filed a petition to remove Children from the
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home due to concerns that Parents violated the no-contact order and used
illegal drugs. Id. at 61, 63. When FCM Erzinger went to the residence to
remove Children, Father was there. Id. at 65. DCS placed Children with
Father’s mother (“Paternal Grandmother”). Id. at 66.
[14] At the fact-finding hearing, FCM Erzinger acknowledged that Parents had
participated in assessments and random drug screens. Id. at 81-82. However,
she described both Mother’s and Father’s participation in drug screens as
“sporadic.” Id. at 81. The juvenile court took judicial notice of the protective
order under cause number 91C01-1906-PO-85, and Father testified that the
allegations that formed the basis of the petition for the no-contact order related
to domestic violence. Id. at 128. Father testified that he and Mother were in
marital counseling and that the counseling improved their communication. Id.
at 119. Father also testified that he was participating in a character restoration
program and that he found the program helpful and planned to finish it. Id. at
121, 135, 138-39. FCM Erzinger testified that Father has recently started
working two jobs, and Mother has full-time employment. Id. at 89, 95, 134,
159. Father told FCM Erzinger that he needed to work two jobs because he
was behind on his bills. Id. at 89, 95.
[15] FCM Erzinger testified that she was concerned that Parents would not comply
with the services if the CHINS cases were dismissed. Id. at 70-71, 89. FCM
Erzinger believed that Children were CHINS. Id. at 71. In Court Appointed
Special Advocate (“CASA”) Connie Cripe’s opinion, Children were well-
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adjusted at Paternal Grandmother’s home. Id. at 110. CASA Cripe added that
Children’s safety was first, and if there were drugs and domestic violence in the
home, then the home was not safe for them. Id. at 110-11.
[16] In its order issued on September 5, 2019, the juvenile court stated:
The Court now adjudicates [Children] a Child in Need of
Services as defined by IC 31-34-1-1.
In Support for this conclusion of law, the following findings of
fact are found:
1. Domestic Violence in the presence of [Child A.C.].
2. Mother's admission of drug use and possession of drugs to
FCM Erzinger during the Safety Plan meeting.
3. FCM Barrett’s observation of wounds and scabs on Mother,
based on her training is conducive to methamphetamine use.
4. Filing of Protection Order for Domestic Violence by Mother
against Father in Cause No. 91C01-1906-PO-000085.
5. Multiple inappropriate and/or derogatory statements to child
about DCS.
6. Pattern of behavior in previous assessments and interactions
with DCS in March of 2016, October of 2018, and March of
2019.
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7. That there is a lack of immunizations for [Child P.C.].
8. Father has a sporadic work history.
9. Mother has a sporadic work history.
10. Mother and Father both have a defensive attitude, blaming
others, and not taking responsibility or action to correct the
problems.
11. CASA, based on conversations and interactions with
children, believe[s] it is in the best interest of the children to not
be with the parents at this time.
The children, [A.C.] and [P.C.], have been removed and are
currently in relative placement.
The Court finds that it is in the best interests of the children to be
removed from the home environment and remaining in the home
would be contrary to the welfare of the children because of the
inability, refusal or neglect to provide shelter, care, and/or
supervision at the present time, and the children need protection
that cannot be provided in the home.
The Court finds that reasonable efforts to prevent or eliminate
removal have been met.
The Court finds responsibility for the placement and care of the
child is ordered or continues to be ordered to the DCS.
Appellants’ App. Vol. II at 66-67.
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[17] On October 21, 2019, the juvenile court issued a dispositional order, continuing
Children’s placement outside the home. Id. at 97-100; 107-10. The juvenile
court ordered Parents to participate in home-based case management, parenting
assessment, substance abuse assessment, mental health evaluations, random
drug screens, substance abuse treatment, therapy, and supervised visitations.
Id. at 98. Mother and Father initiated separate appeals, but we later
consolidated the appeals.
Discussion and Decision
[18] When a juvenile court makes findings in a CHINS case, our review is governed
by Indiana Trial Rule 52, which states that “the court on appeal shall not set
aside the findings or judgment unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the credibility of the
witnesses.” Ind. Trial Rule 52(A); In re T.S., 906 N.E.2d 801, 804 (Ind. 2009).
As to the issues covered by findings, we apply a two-tiered analysis, considering
first whether the evidence supports the findings and then whether the findings
support the judgment. T.R. 52(A); In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014).
Findings are clearly erroneous when there are no facts or inferences drawn
therefrom that support them. In re T.S., 906 N.E.2d at 804. 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. We
do not reweigh the evidence or judge the credibility of witnesses but view the
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evidence and its reasonable inferences most favorably to the judgment. In re
K.D., 962 N.E.2d 1249, 1253 (Ind. 2012).
[19] As to issues that a juvenile court’s findings do not address, we apply a general
judgment standard, which requires us to affirm a judgment “if it can be
sustained on any legal theory supported by the evidence.” In re S.D., 2 N.E.3d
at 1287. Under this standard, we may look both to other findings and beyond
the findings to determine if the result is against the facts and circumstances
before the juvenile court. C.B. v. B.W., 985 N.E.2d 340, 344 (Ind. Ct. App.
2013), trans. denied.
[20] A CHINS proceeding is civil in nature, so DCS must prove by a preponderance
of the evidence that a child is a CHINS as defined by the juvenile code. In re
N.E., 919 N.E.2d 102, 105 (Ind. 2017). Indiana Code section 31-34-1-1
provides that a child is a CHINS 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:
....
(2) the child needs care, treatment, or rehabilitation that:
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(A) the child is not receiving; and
(B) is unlikely to be provided or accepted without the coercive
intervention of the court.
[21] When determining CHINS status under section 31-34-1-1, particularly the
“coercive intervention” element, courts should consider the family’s situation
not just when the case was filed but also when it is heard. In re A.R., 110
N.E.3d 387, 401 (Ind. Ct. App. 2018). This approach avoids punishing parents
for past mistakes when they have already corrected them. Id. “While we
acknowledge 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.” In re N.E., 919
N.E.2d at 105.
[22] Parents argue that the evidence does not support the CHINS determination
because even though DCS presented evidence of domestic violence and
substance abuse, this evidence did not show by a preponderance of the evidence
that Children were endangered and that continued coercive intervention of the
juvenile court was necessary. Parents allege that Mother had used
methamphetamine only once, and they correctly observe that a single, isolated
use of methamphetamine is insufficient to support a CHINS adjudication. See
In re L.P., 6 N.E.3d 1019, 1021 (Ind. Ct. App. 2014). Parents appear to
acknowledge that the record contains evidence of other drug use but contend
that evidence is too vague to support a CHINS adjudication They claim “the
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State failed to prove [any other] drug use by either parent with specificity. This
lack of clarity cannot sustain a CHINS adjudication as to the findings dealing
with drug use.” Appellants’ Br. at 11. Thus, Parents argue that the coercive
intervention of the juvenile court is not necessary to address concerns about
drug use.
[23] As to domestic violence, Parents correctly observe that in Finding #1, the
juvenile court found that there was only one incident of domestic violence that
occurred in the presence of a child, A.C. Appellants’ App. Vol. II at 66. Even so,
Parents acknowledge that even just one occurrence of domestic violence in a
child’s presence is sufficient to support a CHINS determination. See In re D.P.,
72 N.E.3d 976, 984 (Ind. Ct. App. 2017) (“[A] single incident of domestic
violence in a child’s presence may support a CHINS finding, and it need not
necessarily be repetitive.”). Furthermore, Parents admit the record contains
evidence of other instances of domestic violence. However, Parents argue that
since they are addressing domestic violence and marital toil through counseling
and other services, coercive intervention by the juvenile court is not necessary.
Tr. Vol. II at 121, 135, 138-39.
[24] We disagree that DCS failed to show by a preponderance of the evidence that
Children were endangered by drug use. Most notably, one child, P.C., had
tested positive for methamphetamine. Id. at 55. Furthermore, while Parents
are correct that DCS proved only one specific instance of drug use, the record
shows that Mother used drugs more than once and that Father also used illegal
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drugs. This evidence includes Mother’s refusal to take drug tests at least twice.
Id. at 15, 33. The evidence also includes Mother’s physical appearance, that she
had round, healed sores on her arms, chest, and face, and an open sore on her
left chin, all tell-tale signs of methamphetamine use. Id. Mother admitted to
FCM Erzinger that she had abused methamphetamine and prescription
medications, and a safety plan had been put in place to address Mother’s drug
use. Id. at 55. Father also used methamphetamine and other drugs. Id. at 58-
60. Thus, the most reasonable inference is that Mother and Father were more
than occasional drug users and that this drug use endangered Children.
[25] We also reject Parents’ argument that Children were not endangered by
domestic violence. A sampling of Mother and Father’s physical confrontations
illustrate that Mother and Father cannot, for now, provide a safe environment
for Children: 1) Mother told FCM Barrett that during one of her arguments
with Father, he grabbed her neck, shoved her against the wall, and choked her.
Id. at 12; and 2) Father’s “temper would get bad enough to where it would lead
to physical violence.” Id. at 13. Even a single incident of domestic violence in
a child’s presence may support a CHINS determination; the violence need not
be repetitive. In re D.P., 72 N.E.3d at 984. Here, Parents admitted to at least
one incident, and this was sufficient to support the CHINS determination. Tr.
Vol. II at 12-13, 128, 148, 160-61. However, a reasonable inference from the
foregoing evidence is that there were multiple incidents of domestic violence,
including two reports of domestic violence dating back to 2017. Id. at 8. These
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same facts regarding drug use and domestic violence also support the juvenile
court’s conclusion that its coercive intervention was necessary to meet the needs
of Children. Cf. A.J.L. v. D.A.L., 912 N.E.2d 866, 874 (Ind. Ct. App. 2009)
(“The same evidence, that Aunt and Uncle had been the primary caretakers of
the Children for at least the past year, also supports the trial court’s finding as to
Mother’s voluntary relinquishment of the minor children.”) (internal quotation
marks omitted).
[26] We commend Parents’ efforts to provide a safer environment for Children
through marriage counseling, Father’s participation in a character restoration
program, and other services. Nonetheless, the evidence leads us to conclude
that the juvenile court was not clearly erroneous in determining that its coercive
intervention was necessary for the best interests of Children. CASA Cripe
testified that Children’s safety should be the first consideration and if there were
drugs and domestic violence in the home, then the home was not safe for them.
Tr. Vol. II at 110-11. FCM Erzinger was concerned that Parents would not
comply with the services if the trial court dismissed the case. Id. at 70-71, 89.
She testified, “I do believe that if there was no court intervention, they would
not continue said services. . . . . [and] . . . they would still continue with their
problems and they would probably likely escalate.” Id. at 89. FCM Erzinger
was understandably concerned because during this case, Parents were “evasive”
whenever FCM Erzinger tried to communicate with Parents. Id. at 57.
Father’s sarcastic attitude toward DCS also justified her concern that he would
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not continue using services if the case had been dismissed. Id. at 53. Even
more concerning was Parents’ sporadic compliance with the requirement to
submit to drug testing. Id. at 81. These reasons convince us that the juvenile
court did not commit clear error in determining that its coercive intervention
was still necessary to ensure that Children were not endangered by Parents’
drug use, Father’s propensity toward domestic violence, and Parents’ turbulent
marriage.
[27] Affirmed.
Najam, J., and Brown, J., concur.
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