Opinion
22A-JC-1185
03-13-2023
In the Matter of C.B., A Child in Need of Services, v. Indiana Department of Child Services, Appellee-Petitioner S.J., Appellant-Respondent, and Kids' Voice of Indiana, Appellee-Guardian Ad Litem.
ATTORNEYS FOR APPELLANT Danielle O. Sheff Sheff Law Office Indianapolis, Indiana Valerie K. Boots Marion County Public Defender Agency Indianapolis, Indiana ATTORNEYS FOR APPELLEE INDIANA DEPARTMENT OF CHILD SERVICES Theodore E. Rokita Attorney General of Indiana Frances H. Barrow Deputy Attorney General Indianapolis, Indiana ATTORNEY FOR APPELLEE KIDS' VOICE OF INDIANA Katherine G. Meger Kelsey Chief Legal Counsel Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or the law of the case.
Appeal from the Marion Superior Court The Honorable Alicia A. Gooden, Judge The Honorable Jennifer J. Hubartt, Magistrate Trial Court Cause No. 49D14-2110-JC-9258
ATTORNEYS FOR APPELLANT
Danielle O. Sheff
Sheff Law Office
Indianapolis, Indiana
Valerie K. Boots
Marion County Public Defender Agency
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE INDIANA DEPARTMENT OF CHILD SERVICES
Theodore E. Rokita
Attorney General of Indiana
Frances H. Barrow
Deputy Attorney General
Indianapolis, Indiana
ATTORNEY FOR APPELLEE KIDS' VOICE OF INDIANA
Katherine G. Meger Kelsey
Chief Legal Counsel
Indianapolis, Indiana
MEMORANDUM DECISION
Foley, Judge.
[¶1] S.J. ("Mother") appeals from the juvenile court's order adjudicating C.B. ("Child") to be a child in need of services ("CHINS"). Mother raises several issues for our review, which we consolidate and restate as:
Father does not participate in this appeal.
I. Whether the juvenile court abused its discretion by admitting certain evidence over objection at the fact finding hearing; and
II. Whether the juvenile court's determination that Child is a CHINS was clearly erroneous.
[¶2] We affirm.
Facts and Procedural History
[¶3] On October 27, 2021, a driver informed Trooper Smith that a person in a white SUV "had shot at her vehicle" and that "three people got out of the vehicle and busted her window with bats." Tr. Vol. II p. 15. Trooper Smith observed the white SUV fleeing the scene "at a high rate of speed." Id. at 16. Trooper Smith "activated [his] lights and sirens" and immediately pursued the white SUV. Id. The white SUV did not stop until the driver parked at an apartment complex. Mother got out of the driver's side door of the white SUV and three juveniles- one of them holding Child-got out of the passenger side of the white SUV. Trooper Smith drew his gun and told Mother to get on the ground. The three juveniles-one of them still holding Child-ran inside the apartment. Trooper Smith ordered them to come back outside of the apartment, and once they did, he secured everyone. Trooper Smith observed a "shell casing on the front windshield of the SUV that [Mother] got out of." Id. at 17. Trooper Smith obtained a search warrant for the apartment and the SUV. Trooper Smith searched Mother's vehicle and found, in addition to the shell casing in the windshield area, a shell casing on the seat and a bag on the passenger side seat floor area that contained a handgun. Trooper Smith also searched Mother's apartment and found various types of narcotics in different areas of the apartment, a handgun with ammunition in a purse in Mother's closet, marijuana, cocaine, pills, and some other items in Mother's bookbag.
The three juveniles are not subjects of this appeal.
[¶4] Mother was arrested. Because Trooper Smith had safety concerns for the three juveniles and Child, Indiana Department of Child Services ("DCS") "received a report and assessment relating to child endangerment" and reported to Mother's apartment. Id. at 54. DCS Family Case Manager Cummings ("FCM Cummings") attempted to speak with Mother, but Mother was not cooperative. FCM Cummings observed Mother's apartment and saw marijuana on the floor in one of the bedrooms, "marijuana that had been rolled up on top of a PlayStation in a different bedroom," an unsecured firearm in Mother's closet, marijuana tucked inside a bag, and marijuana underneath Mother's bed. Id. at 55. DCS recommended that Child be placed in relative care "due to the illegal substances that were found and all the incidents that had happened with the police pursuit and having [Child] in the car and endangering [her] in that way[.]" Id. at 57.
[¶5] On October 28, 2021, DCS researched Mother's criminal history which consisted of possession of marijuana, battery/criminal mischief, and multiple convictions of driving while suspended: knowing violation and prior conviction within 10 years. DCS recommended filing of a petition alleging Child to be a CHINS and an out of home placement for Child because Mother "has failed to provide a home free from illegal substances and criminal activity." Appellant's App. Vol. II p. 40. On October 29, 2021, an initial hearing was held, and the juvenile court ordered that Child be placed in relative care. On November 19, 2021, a pre-trial hearing was held and the juvenile court ordered Child's placement remain the same. The juvenile court conducted a fact-finding hearing on February 18, 2022, and March 1, 2022. On March 29, 2022, the juvenile court issued its "Fact Finding Ruling Order" and adjudicated Child a CHINS ("CHINS Order"). The juvenile court conducted a dispositional hearing on April 29, 2022, and May 2, 2022, and then entered the dispositional order on May 2, 2022.
Mother's Notice of Appeal indicates that she is appealing the May 2, 2022, Order Regarding A Child in Need of Services, Dispositional Decree, but her brief solely references the March 29, 2022, "Fact Finding Ruling Order."
[¶6] At the fact finding hearing, Trooper Smith testified regarding his observations and interactions with Mother on October 27, 2021. Mother's home-based caseworker testified that Mother's supervised visits were closed as unsuccessful because she was not able to contact nor locate Mother. Mother's mental health therapist testified that Mother's counseling services were closed as unsuccessful because Mother did not contact her. Mother's home-based case manager testified that Mother told her she did not need her services before she had the opportunity to start working with Mother. FCM Cummings testified regarding her interactions with Mother and observations of Mother's apartment on October 27, 2021. FCM Azeezat Hammed ("FCM Hammed") testified that DCS was recommending that Mother take part in "home-based therapy, parenting assessment, substance abuse assessment and [ ] random drug screening," because Mother "ha[d] not been so cooperative." Tr. Vol. II pp. 71-72.
[¶7] The CHINS Order states, in pertinent part, that:
5. On or about 10/27/21, Mother was driving a white SUV in Indianapolis, Marion County, Indiana and was involved in a collision with another vehicle. At the time, the Child, as well as three other children, were in Mother's vehicle. Following the collision, Mother fired a handgun at the scene and the three other children smashed a window out of the other vehicle.
....
7. Trooper Smith attempted to stop Mother's vehicle following the aforementioned incidents on 10/27/21, however, Mother fled from Trooper Smith in her vehicle with the Child and other three children and engaged in a high speed pursuit which ended at her apartment complex. At that time, Mother exited the vehicle and the four children rushed into the apartment.
8. Trooper Smith and ISP obtained warrants to search Mother's car and apartment on 10/27/21.
9. Trooper Smith and ISP found shell casings on the windshield and seat of Mother's vehicle as well as a bag containing a handgun on the passenger side floor.
10. Trooper Smith and ISP found additional unsecured firearms inside Mother's apartment.
11. Trooper Smith and ISP found what, based upon his training and experience, was recognized as marijuana, cocaine, and pills
in Mother's apartment. Due to the quantity of the drugs found and the packaging of the same, some of the drugs appeared to be prepared for dealing.
12. The drugs and firearms located by Trooper Smith and ISP inside Mother's vehicle and apartment were accessible to the Child.
13. Trooper Smith had serious safety concerns for the Child on 10/27/2 l, due to her presence in Mother's vehicle during the high speed chase and her exposure to drugs and firearms in Mother's vehicle and apartment.
14. Trooper Smith and ISP arrested Mother on [10/27/21] for dealing, intimidation, criminal mischief, resisting, and possession of paraphernalia.
....
19. FCM Cummings observed what, through her training and experience, she recognized as marijuana and firearms in Mother's apartment.
20. FCM Cummings attempted to interview Mother at the apartment on [10/27/21], however, Mother refused to cooperate or even answer demographic questions.
21. Father was at Mother's apartment on 10/27/21 and was interviewed by FCM Cummings. Father was not cooperative with FCM Cummings and he refused to submit to a random drug screen offered by FCM Cummings.
22. Due to safety concerns for the Child, including her exposure to drugs and firearms, the uncooperative nature of Mother and
Father during the initial assessment, and Father's refusal to submit to an offered drug screen, DCS removed the Child from the home and the care of her parents on 10/27/21.
23. The Child was placed in relative care with her Maternal Aunt on 10/27/21 and she is currently in this relative placement as ordered by the Court.
24. Since the Child's removal, Mother has been offered a number of voluntary services by DCS, including home based case management, home based therapy, random drug screens, and supervised parenting time. The services were offered to address the concerns DCS has regarding Mother's sobriety and stability, as well as to maintain her bond with the Child.
25. Mother was unsuccessfully discharged from home based case management and home based therapy due to her failure to communicate with the service providers and cooperate with the services.
....
27. Since the Child's removal, Father has been offered voluntary services by DCS, including a parenting assessment, random drug screens, and supervised parenting time. The services were offered to address concerns DCS regarding Father's sobriety and ability to parent the child, as well as to maintain his bond with the child.
28. Father has not cooperated with a parenting assessment or random drug screens.
29. Tina Teague is a parenting time supervisor who was assigned to provide supervised parenting time to Mother and Father. Ms.
Teague has 30 years of experience in the field of child welfare serving families.
30. Although Ms. Teague attempted to accommodate the work and personal schedules of Mother and Father, they were both unsuccessfully discharged from her services and completed only 2 or 3 visits of the 16 visits Ms. Teague offered.
31. Ms. Teague observed Mother to be hostile, threatening, and profane during her interactions with Mother and characterized Mother's behavior as the most extreme Ms. Teague has witnessed in her three decades working with families.
....
33. Neither Mother nor Father have exercised regular and consistent parenting time with the Child since her removal, despite being offered and afforded the same by DCS and service providers.
34. Father has seven children in total with seven different mothers. [Father] sees his other six children, who range in age from 15 years to 4 years, in his home every other weekend.
35. Father is employed as a truck driver and his work schedule best accommodates seeing his children every other weekend.
....
38. Father is not concerned about the safety of the Child in Mother's care and he therefore lacks sound judgement [sic] regarding the child's safety.
39. Mother has demonstrated a pattern of hostile and volatile behavior, whether the Child is in or not in her care. Mother's behavior has seriously impaired and endangered the health, safety, and welfare of the Child.
40. The Child is completely dependent upon her care givers to meet her needs, which include the need for a safe, stable, and sober home environment. Mother and Father are unable to meet the needs of the child at this time.
....
Conclusions of Law:
....
2. The Child's physical or mental condition is seriously impaired or endangered as a result of her parents' inability, refusal, and neglect to provide the Child with basic care and necessities, as well as a safe and stable home environment, free from exposure to violence and substance abuse.
3. The Child needs basic care and necessities, as well as a safe and stable home environment, free from exposure to violence and substance abuse, which she is unlikely to receive without the coercive intervention of the Court.
Based upon the Findings and Conclusion[s], the Court now adjudicates the Child to be a Child In Need of Services.
Appellant's App. Vol. II pp. 184-87. Mother now appeals.
Discussion and Decision
I. Admission of Evidence
[¶8] The admission or exclusion of evidence is a matter that is generally entrusted to the discretion of the trial court. Pribie v. State, 46 N.E.3d 1241, 1246 (Ind.Ct.App. 2015). We review challenges to the admission of evidence for an abuse of the trial court's discretion. Fansler v. State, 100 N.E.3d 250, 253 (Ind. 2018). In those instances, we will reverse only where the decision is clearly against the logic and effect of the facts and circumstances. Id. Moreover, the trial court's ruling will be upheld "if it is sustainable on any legal theory supported by the record, even if the trial court did not use that theory." Tibbs v. State, 59 N.E.3d 1005, 1011 (Ind.Ct.App. 2016). Even if the trial court's decision was an abuse of discretion, errors in the exclusion of evidence are generally disregarded as harmless unless they affect the substantial rights of a party. Pitts v. State, 904 N.E.2d 313, 318 (Ind.Ct.App. 2009), trans. denied.
A. Discovery Violation
[¶9] Mother contends that the juvenile court erred when it allowed Trooper Smith to testify. At the outset of the trial, Mother objected "to the testimony of any Officers" because she did not receive "any reports in [her] initial discovery request" and allowing the officers to testify would be in violation of her due process since she did not have "the police reports to use for [her] cross examination." Tr. Vol. II p. 12. DCS responded, stating that it did not have the "police report because the matter is an open investigation right now by the police, so there has been no formal charges filed yet." Id. DCS further stated that the officer's testimony involved his "direct interaction with [Mother] on a matter in which he had observed, all the events that took place and was directly involved[.]" Id. The juvenile court noted Mother's objection but ultimately permitted Trooper Smith's testimony, seemingly agreeing with DCS's response.
Mother also argues that DCS violated discovery orders. Mother claims that "DCS was not truthful about the existence of [the police report] for disclosure in discovery." Appellant's Br. p. 34. However, Mother did not include her discovery requests in the record for our review nor did Mother ask the juvenile court to make a discovery ruling at any point during the CHINS adjudication. Mother has failed to preserve a record sufficient for us to determine whether a discovery violation has occurred or that the juvenile court's discovery ruling was erroneous. Therefore, we only address Mother's due process claim.
[¶10] We are unable to conclude that the juvenile court's decision to permit Trooper Smith's testimony was "clearly against the logic and effect of the facts and circumstances," Fansler, 100 N.E.3d at 253, because Trooper Smith's testimony regarding what happened on October 27, 2021, was based on his direct observations, not hearsay or other matters contained in the police report. Mother fails to otherwise develop her argument regarding due process. The juvenile court did not abuse its discretion when it allowed Trooper Smith to testify as to his direct observations.
Also embedded in Mother's argument is a warrantless search claim. Mother contends that "[t]he [j]uvenile [c]ourt abused its discretion by allowing testimony regarding the results of a never-produced search warrant for [Mother]'s house." Appellant's Br. p. 40. Mother supports her assertion by stating "neither DCS's counsel nor Trooper Smith obtained a copy of a search warrant that included the house" and that Trooper Smith did not recall the Judge who issued the warrant and what time the warrant was issued. Id. We neither reweigh evidence nor judge the credibility of witnesses. See, e.g., In re D.J., 68 N.E.3d 574, 577-78 (Ind. 2017). Thus, we cannot say that a warrantless search occurred.
[¶11] After securing Mother, Child and the other juveniles, Trooper Smith applied for a search warrant. The initial search warrant was approved for only Mother's vehicle. Trooper Smith then requested a second search warrant for both Mother's vehicle and the residence. Mother's counsel had obtained only a copy of the initial search warrant and not the second search warrant. During his direct examination, Trooper Smith testified that he obtained "a warrant for the house and for the vehicle." Tr. Vol. II p. 17. In anticipation of an objection, Mother asked Trooper Smith preliminary questions regarding the search warrant and asked the court to admit a copy of the search warrant into evidence. The juvenile court denied Mother's request and advised Mother to "hang on to [the search warrant]" because "it may be something that [she] want[s] to use in cross examination with Trooper Smith." Id. at 19. During Mother's cross examination of Trooper Smith, Mother failed to move to admit the search warrant as an exhibit or otherwise preserve the search warrant as part of the record.
[¶12] Mother claims that the juvenile court abused its discretion when it denied Mother's request to enter a copy of the search warrant into evidence. Mother contends the search warrant was relevant evidence. However, because Mother failed to preserve a copy of the warrant into the record, Mother waived this issue on appeal. See Johnson v. State, 845 N.E.2d 147, 153 ("a failure to preserve an issue for appeal usually results in a waiver."), trans. denied. Mother further argues that Trooper Smith should not have been permitted to testify about the search of Mother's residence because neither Trooper Smith nor DCS's counsel had a copy of the warrant at the hearing. Mother fails to support her position with cogent argument or citation to authority. See Ind. Appellate Rule 46(A)(8)(a) (requiring that contentions in appellant's brief be supported by cogent reasoning and citations to authorities, statutes, and the appendix or parts of the record on appeal relied on); see also Castro v. State Off. of Fam. &Child., 842 N.E.2d 367, 373 n.2 (Ind.Ct.App. 2006) (failure to present cogent argument to support a claim that trial court erred in finding that there was a satisfactory plan for the care and treatment of child waives issue for appellate review), trans. denied.
C. Contraband Identification
[¶13] Mother maintains that the juvenile court abused its discretion when it allowed Trooper Smith and FCM Cummings to identify "substances found in [Mother]'s home as marijuana and 'narcotics' without obtaining the testing results." Appellant's Br. p. 6.
[¶14] Mother relies on Fedij v. State, 186 N.E.3d 696 (Ind.Ct.App. 2022), which held that the State's evidence was insufficient to prove that the contraband was illegal marijuana, as opposed to legal hemp. In that case, "the only way to determine if any of the seized substances was a legal substance or an illegal one was to test the percent concentration of THC in the substance, which the State did not do." Id. at 709. Because the State's witnesses "were unequivocal [. . .] that they had no way to distinguish any of the substances between hemp and marijuana absent a test for the percent concentration of THC," id. at 708, the panel held that "the State failed to present sufficient admissible evidence to support the [defendant]'s conviction for Class A misdemeanor possession of marijuana." Id. at 710.
[¶15] Fedij is distinguishable from the present case because the issue was sufficiency of the evidence, not admissibility of the evidence. The admissibility of the law enforcement officers' testimony that they believed the contraband to be marijuana based upon their training and experience was not at issue in Fedij. The juvenile court properly allowed Trooper Smith and FCM Cummings to testify that they believed the contraband found in Mother's residence was marijuana and/or illegal drugs based upon their training and experience. See Helton v. State, 907 N.E.2d 1020, 1024 (Ind. 2009) (the identity of a controlled substance may be established through witness testimony); see also Vasquez v. State, 741 N.E.2d 1214, 1216 (Ind. 2001) ("Although chemical analysis is one way, and perhaps the best way, to establish the identity of a compound, person experienced in the area may be able to identify cigarette smoke, marijuana, and even toluene.").
II. CHINS Adjudication
[¶16] Mother next challenges the sufficiency of the evidence to support the juvenile court's determination that Child is a CHINS. CHINS proceedings are civil actions; thus, "the State 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. 2010); see Ind. Code § 31-34-12-3. On review, we neither reweigh the evidence nor judge the credibility of the witnesses. In re D.J., 68 N.E.3d 574, 577-78 (Ind. 2017). Here, the trial court entered, sua sponte, findings of fact and conclusions thereon in granting the CHINS petition. "As to the issues covered by the findings, we apply the two-tiered standard of whether the evidence supports the findings, and whether the findings support the judgment." In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014).
A. Challenges to Factual Findings
[¶17] Mother challenges twenty-seven out of the juvenile court's forty-one findings. Mother first challenges factual findings 5 and 7 based upon hearsay. Trooper Smith testified that the victim ("Custard") told Trooper Smith that "a white SUV that was fleeing the scene" had "shot at her vehicle and busted out her back window." Tr. Vol. II p. 15. Although hearsay, the statement was the present sense impression of Custard and an exception to the hearsay rule under Indiana Rule of Evidence 803(1). See Jones v. State, 780 N.E.2d 373, 376 (Ind. 2002) (Rule 803(1) "requires the statement to describe or explain the event or condition during or immediately after its occurrence and it must be based on the declarant's perception"). The evidence supports factual findings 5 and 7.
[¶18] Next, Mother challenges factual findings 8, 9, 10, 11, 12, 13, and 14, because:
The Juvenile Court violated due process by considering testimony regarding a search of [Mother]'s house, and Trooper Smith's characterization of the substances he found are not supported by the evidence due to the failure to send all substances for testing, the lack of testing results at the time of the Hearings, in light of the decision in Fedij, and the recent announcement by Marion County laboratories that marijuana testing was halted in light of that decision and the lack of ability to test for THC levels that separate illegal marijuana from legal hemp.Id. at 54. As set forth in Section I.3, above, Trooper Smith obtained a valid search warrant for the search of Mother's apartment. His identification of the marijuana, cocaine, and pills in Mother's apartment was sufficient due to his specific training in the area of detecting illegal substances. See Helton, 907 N.E.2d at 1024; Vasquez, 741 N.E.2d at 1216. Furthermore, the trial court acknowledged that the suspected marijuana, cocaine, and pills "were still being tested through ISP and no criminal charges been filed against Mother at this time." Appellant's App. Vol. II pp. 185. The evidence presented sufficiently supported the juvenile court's factual findings.
[¶19] Next, Mother challenges factual findings 19, 20, 21, and 22, arguing that the contraband was not tested and that there was a due process violation with the search warrant. Again, Trooper Smith's identification of the illicit drugs was sufficient due to his training. Additionally, a part of FCM Cummings's training "in the area of child welfare is recognizing illicit substances[,]" which also makes her testimony sufficient to establish the identity of the illicit drugs in Mother's apartment. Tr. Vol. II p. 55. In her brief, Mother suggests that when FCM Cummings arrived at the scene, "presumably items had been moved or changed from their original state," Appellant's Br. p. 55, but does not support that assertion with cogent reasoning and citations to parts of the record relied on, thus waiving her assertion. See Ind. Appellate Rule 46(A)(8)(a) (requiring that contentions in appellant's brief be supported by cogent reasoning and citations to authorities, statutes, and the appendix or parts of the record on appeal relied on); see also Castro, 842 N.E.2d at 373 n.2 (failure to present cogent argument to support a claim that trial court erred in finding that there was a satisfactory plan for the care and treatment of child waives issue for appellate review), trans. denied.
Mother also states that FCM "Cummings testified that it [was] reasonable that [Mother] refused to answer questions or cooperate while law enforcement was on-site because [she] had a right to remain silent." Appellant's Br. at 55. Mother asks us to reweigh evidence which we cannot do. See, e.g., In re D.J., 68 N.E.3d 574, 577-78 (Ind. 2017). Thus, the finding that Mother "refused to cooperate or even answer demographic questions" is supported by FCM Cummings's testimony that she was "not able to get past any information when interviewing [Mother]. [Mother] was not cooperative, wouldn't provide me with her name, date of birth or anything[.]" See Appellant's App. p. 185; see also Tr. Vol. II p. 59.
[¶20] Next, Mother challenges factual findings 23, 24, and 25, claiming that those findings: "set out only the perceived lack of cooperation and failures to comply with requests (because they were not court ordered services)." Appellant's Br. p. 55. Mother notes that "[a]ll of the DCS witnesses involved after the 10/27/21 incident that prompted DCS involvement with parents, indicated that parents were appropriate and caring with the children, and parents cooperated with each other to parent children." Id. Mother asserts that "the overall tenor of the testimony was that parents were able to overcome any perceived or actual personal issues when the children were involved." Id. Mother's assertions are an improper invitation for us to reweigh the evidence which we will not do. See, e.g., In re D.J., 68 N.E.3d at 577-78. The juvenile court's findings were supported by a number of DCS's witnesses. Mother's home-based caseworker testified that Mother's supervised visits were closed as unsuccessful because "[t]here was disengagement with [Mother], we weren't able to contact her for visits and we weren't able to locate her." Tr. Vol. II p. 28. Next, Mother's mental health therapist testified that Mother's counseling services were closed as unsuccessful "due to no contact" by Mother. Id. at 31. Next, Mother's home-based case manager testified that she "made attempts to contact [Mother] regard[ing] [] her parenting time[,]" until she "was told that [Mother] [] no longer need[ed] [her] services[,]" id. at 35, even though Mother's parenting time with her had not yet begun. Next, FCM Cummings testified that she was "not able to get past any information when interviewing [Mother]. [Mother] was not cooperative, wouldn't provide [FCM Cummings] with her name, date of birth or anything[.]" Id. at 59. Finally, FCM Hammed testified that DCS was recommending that Mother take part in "home-based therapy, parenting assessment, substance abuse assessment and [] random drug screening," because Mother "ha[d] not been so cooperative." Id. at 71-72. The evidence presented at the fact finding hearing sufficiently supported the juvenile court's findings.
Mother's home-based case manager testified that she initially met Mother when Mother joined Father's supervised visitation. The home-based case manager received a referral to coordinate supervised visits for Mother. Before the home-based case manager could coordinate the visits with Mother, Mother "used profanity, cursed [her] out and told [her] to take [Mother] off the group . . . [s]o . . . [the home-based case manager] never worked with [Mother]." Tr. Vol. II at 34.
FCM Hammed testified that she had "difficult[y] [] communicat[ing] with [Mother] most times and [Mother] ha[d] not been able to submit to any of the services and towards the end of the last Court [sic], [Mother] was able to just come in for one drug screen and that's the only service [Mother] ever did." Tr. Vol. II p. 73.
[¶21] Next, Mother challenges factual findings 29, 30, and 33, stating that Mother's lack of ability to meet with providers was due to her work schedule and being out of town. Again, we will not reweigh evidence. See, e.g., In re D.J., 68 N.E.3d at 577-78. As we stated above, the juvenile court's findings are supported by Mother's home-based case manager, who testified that she "made attempts to contact [Mother] regard[ing] [] her parenting time[,]" until she "was told that [Mother] [] no longer need[ed] [her] services[,]" id. at 35, even though the home-based case manager had not yet coordinated Mother's parenting time.
Because Father is not involved in this appeal, we will not address factual findings 27, 28, 34, 35, and 38 since they only pertain to him.
[¶22] Next, Mother challenges factual finding 31, stating that her home-based case manager's testimony that Mother was "hostile, threatening, and profane" was based on a single exchange with Mother and that the home-based case manager's overall evaluation of Mother and her interactions with Child were appropriate. Appellant's Br. p. 56. Again, Mother asks us to reweigh evidence which we will not do. See, e.g., In re D.J., 68 N.E.3d at 577-78. The juvenile court's finding that "[the home based case manager] observed Mother to be hostile, threatening, and profane during her interactions with mother" was supported by the home-based case manager's testimony that Mother "used profanity, cursed [her] out and told [her] to take [Mother] off the group . . . [s]o . . . [the home-based case manager] never worked with [Mother]." Tr. Vol. II p. 34.
[¶23] Next, Mother challenges factual finding 39, stating:
Not being available because of work or traveling out-of-town, having secured handguns for which licenses are no longer needed in Indiana, having substances that might or might not be legal, having a profane exchange with a provider who testified that otherwise [Mother] and [Father] were appropriate and caring with [Child], and a conviction for "taunting" a neighbor do not constitute a pattern of hostility and volatility. The evidence does not satisfy a determination that [Mother] seriously impaired and endangered the health, safety, and welfare of [Child]. In the case of the action with the neighbor and incident that prompted the DCS investigation, the circumstances prompting [Mother]'s behavior and even what that behavior was are completely unknown. The Finding is not supported by the evidence at the Hearings.
Appellant's Br. pp. 57-58. Again, we will not reweigh the evidence presented. See, e.g., In re D.J., 68 N.E.3d at 577-78. The juvenile court's finding that "Mother has demonstrated a pattern of hostile and volatile behavior, whether the Child is in or not in her care" is supported by Trooper Smith's direct observation of Mother's actions on October 27, 2021, and the home-based case manager's interactions with Mother which we described in greater detail supra.
[¶24] Next, Mother challenges factual finding 40, maintaining that the evidence at the fact-finding hearing indicated that Mother was appropriate and caring and able to provide safe and stable care for Child. Again, we will not reweigh evidence. See, e.g., In re D.J., 68 N.E.3d at 577-78. The juvenile court's finding that Child is "completely dependent upon her care givers to meet her needs" and that Mother is unable to meet Child's needs is supported by the testimonies of Trooper Smith, Mother's home-based caseworker, Mother's mental health therapist, Mother's home-based case manager and FCM Cummings which we described in greater detail supra.
B. CHINS Determination
[¶25] We review the remaining issues under the general judgment standard, which provides that a judgment "'will be affirmed if it can be sustained on any legal theory supported by the evidence.'" In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014) (quoting Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997)). We will reverse a CHINS determination only if it is clearly erroneous. D.J., 68 N.E.3d at 578.
[¶26] DCS must prove three elements for a juvenile court to adjudicate a child a CHINS: (1) the child is under the age of eighteen; (2) that one of eleven different statutory circumstances exist that would make the child a CHINS; and (3) the child needs care, treatment, or rehabilitation that he or she is not receiving and is unlikely to be provided or accepted without the coercive intervention of the court. Id. at 580.
[¶27] Here, the juvenile court found Child was a CHINS under the general category of neglect as defined in Indiana Code Section 31-34-1-1, which provides:
A child is a child in need of services 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 necessary food, clothing, shelter, medical care, education, or supervision:
(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:
(A) the child is not receiving; and
(B) is unlikely to be provided or accepted without the coercive intervention of the court.
[¶28] "[T]he purpose of a CHINS adjudication is to protect children, not [to] punish parents." In re N.E., 919 N.E.2d at 106. A CHINS adjudication is not a determination of parental fault but rather is a determination that a child is in need of services and is unlikely to receive those services without intervention of the court. Id. at 105. "A CHINS adjudication focuses on the condition of the child .... [T]he acts or omissions of one parent can cause a condition that creates the need for court intervention." Id. (citations omitted). "A CHINS finding should consider the family's condition not just when the case was filed, but also when it is heard." In re S.D., 2 N.E.3d at 1290.
[¶29] Here, Mother states that the evidence does not support the Court's conclusion that "Child's physical or mental condition is seriously impaired or endangered as a result of her parents' inability, refusal, and neglect to provide the Child with basic care and necessities, as well as a safe and stable environment, free from exposure to violence and substance abuse." Appellant's App. p. 187. We disagree. Child's physical condition was seriously impaired when Mother fired a handgun at the scene of the car accident. In fact, Mother exacerbated Child's physical endangerment when Mother fled the scene while Child was in the SUV with Mother. When Trooper Smith "activated [his] lights and sirens and [] went after the [] SUV" driven by Mother, Mother did not stop, but instead drove, "at a high rate of speed," to her apartment complex. Tr. Vol. II p. at 16. When she arrived at her apartment complex, Mother and three juveniles-one of them holding Child-got out of the car. Trooper Smith was able to stop Mother from going inside the apartment, but the three juveniles, along with Child, ran into the apartment. Inside this same apartment, Trooper Smith observed contraband in different areas, a handgun in a purse in Mother's closet, a book bag with marijuana, cocaine, and other contraband, and pills on top of Mother's dresser. Some of the marijuana was "in cans . . . that you can easily open and access if you were to just come in [Mother's] room." Id. The findings, based on the evidence presented by DCS, supported the juvenile court's conclusion.
Mother conflates our standard of review. We reiterate that "we apply the two-tiered standard of whether the evidence supports the findings [as we found in II(A) above], and whether the findings support the judgment [what we will discuss in II(B)]." In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014).
[¶30] Lastly, Mother states that the juvenile court's conclusion that "Child needs basic care and necessities, as well as safe and stable home environment, free from exposure to violence and substance abuse, which she is unlikely to receive without the coercive intervention of the Court," Appellant's App. p. 187, "is erroneous and fails to meet the statutory requirements for a CHINS adjudication." Appellant's Br. p. 59. Mother supports her claim by stating that "the evidence demonstrates that parents, parents of their children's siblings, and other associated relatives all function as a large close-knit family and community unit-all caring for and providing for the children." Id.
[¶31] Again, we will not reweigh evidence. See, e.g., In re D.J., 68 N.E.3d at 577-78. Coercive intervention of the Court was needed here since Mother fired a handgun, fled from the police, and lived with Child in an apartment that contained easily accessible contraband and an unsecured handgun. Instead of complying with the juvenile court's coercive intervention, so that Child could be placed back in her care, Mother: (1) was unsuccessfully discharged from home-based case management and home-based therapy; (2) provided only one drug screen since October 27, 2021; (3) was unsuccessfully discharged from supervised visits with Child; (4) was hostile, threatening, and profane during her interaction with her home-based case manager; and (5) has not exercised regular and consistent parenting time with Child since Child's removal. Since Child's removal, Mother's behavior demonstrated that Child's needs are unlikely to be met without coercive intervention of the court, and the CHINS statutes do not require that a trial court wait until a tragedy occurs to a child before intervening. See In re C.K., 70 N.E.3d 359, 364 (Ind.Ct.App. 2016), trans. denied; see also S.D., 2 N.E.3d at 1290 ("A CHINS finding should consider the family's condition not just when the case was filed, but also when it is heard."). Thus, the juvenile court's adjudication was not clearly erroneous.
Conclusion
[¶32] Based on the foregoing, we conclude that the juvenile court did not abuse its discretion when it admitted certain evidence into the record at the fact finding hearing, that the juvenile court's findings were supported by the evidence, and that its determination that Child is a CHINS was not clearly erroneous.
[¶33] Affirmed.
Robb, J., and Mathias, J., concur.