IN RE: K.G. (2025)

MEMORANDUM DECISION

[1] K.G. (“Father”) appeals the trial court's determination that his minor children, K.G., Jr., and E.G., (together, “Children”) are children in need of services (“CHINS”). We affirm.

Facts and Procedural History

[2] The evidence most favorable to the trial court's CHINS adjudication indicates that Father is the biological father of K.G., Jr., born in February 2008, and E.G., born in December 2016. Each child has a different mother. During all relevant times, K.G., Jr., has resided with Father, while his mother, De.W., lives in Tennessee. E.G. has resided primarily with her mother, Da.W., and Father has exercised parenting time.

[3] In January 2024, the Indiana Department of Child Services (“DCS”) received a report that Father was using marijuana and cocaine and “that he was continuously using drugs.” Transcript Volume II at 34. DCS Family Case Manager Jasmynn Mullen (“FCM Mullen”) went to Father's home on January 8, 2024. Father told FCM Mullen that he had smoked marijuana approximately three hours before she arrived at his home and that he smokes marijuana “every other day.” Id. at 37. Father admitted that he smoked marijuana in the home “when [E.G.] would be in the car.” Id. He stated that “whenever [E.G.] asks what he is doing he will tell her he is smoking cigarettes.” Id. FCM Mullen observed a “rolling tray” used to “roll blunts or marijuana or joints ․ for preparation to smoke marijuana” out in the open on the left side of Father's bed. Id. at 36. FCM Mullen also observed a pink pillow on the left side of Father's bed and Father indicated that E.G. sleeps with him on that side of his bed when she is there. During FCM Mullen's visit, she observed that Father “was very sporadic in the conversation ․ kept jumping from topic to topic ․ constantly moving around ․ and not being able to stand in one spot.” Id. FCM Mullen observed that Father's home has a single bedroom and Father indicated that K.G., Jr., sleeps on the couch in the living room. Father told FCM Mullen that he and E.G.’s mother, Da.W., would both smoke marijuana when they were together, that E.G. had seen them smoke together, and that he believed Da.W. still smoked marijuana. When FCM Mullen asked Father if he would submit to a drug screen, Father said he would do so if Da.W. also took a screen.

[4] Da.W. submitted to a screen on January 9th, which was negative for all substances. DCS subsequently filed a “motion to control,” which was granted by the trial court, that required Father to submit to a drug screen. Id. DCS attempted to administer the screen, but Father continually refused to follow instructions resulting in an invalid test.

[5] FCM Mullen visited Da.W.’s home on January 11th, and Da.W. informed FCM Mullen that Father wanted her to “do coke” with him when they were together and she was also afraid E.G. would “get into” Father's cocaine or the “meth or crack” she believed Father was selling. Id. at 40-41. Da.W. told FCM Mullen that she had “filed for full custody of E.G.” on that same date. Id. at 42. Da.W. also told FCM Mullen that she had an active protective order against Father, that Father had violated the protective order by threatening to shoot her on E.G.’s birthday, and that domestic violence had occurred between them in front of E.G.

[6] On January 16, DCS filed a petition alleging that Children were CHINS. The court held an initial hearing on the same date. Father and Da.W. appeared in person. The court appointed counsel for both. K.G., Jr.’s mother, De.W., did not appear as DCS was “still attempting to locate her.” Id. at 13. DCS requested “restriction of Father's access” to E.G. which included “supervised visits.” Id. at 9, 11. Regarding K.G., Jr., DCS stated, “we are willing to allow him to stay in [the] home” because he “is an older youth” but requested the court order Father to submit to weekly drug screens and for him to participate in “family preservation” services. Id. at 9-10. The court granted DCS's requests and set the matter for a review hearing in two weeks.

[7] The court held a review hearing on January 31, 2024. Father and Da.W. both appeared in person and by counsel. De.W. did not appear. Father denied the CHINS allegations and stated that he wanted to proceed to trial. The court again noted that no specific allegations had been made against Da.W. but further noted that she indicated that she wished to participate in the trial proceedings. Counsel for DCS informed the court that Father had recently tested positive for THC and that he had since been “refusing drug screens.” Id. at 17. The court set the matter for a pretrial hearing in March followed by a trial in April. The court ordered Father “to cooperate with [DCS] between now and the hearing date.” Id.

[8] The court held a pretrial hearing on March 12, 2024. Father and Da.W. both appeared in person and by counsel. Although De.W. indicated that she intended to participate in the hearing, she failed to appear, but counsel appeared on her behalf. Father admitted to not participating in ongoing drug screens but claimed there was a “misunderstanding” as to the testing protocol. Id. at 19. Da.W. indicated that she had no objection to E.G. being adjudicated a CHINS and receiving services. The court stated that it would withhold disposition until a factfinding hearing and requested in the meantime that Da.W. keep in contact with DCS.

[9] The court held a CHINS factfinding hearing on April 4, 2024. Da.W. appeared in person and by counsel. De.W. again failed to appear, but her counsel appeared and “asked the court to show that [De.W.] has no objection to any finding of CHINS” regarding K.G., Jr. Id. at 26. The court determined it would proceed in absentia as to De.W. and granted counsel's motion to withdraw. Father failed to appear at the beginning of the hearing but his counsel was present. At the outset of the hearing, Father's counsel orally requested dismissal of the CHINS petition as to E.G. due to a pending paternity case, cause number 82DO7-1707-JP-998 (“Cause No. 998”), arguing that Father did not have custody or even legal “visitation rights” with respect to E.G. Id. at 28. DCS argued that the record of Cause No. 998 was “not clear regarding actual custody” of E.G., that the record indicated that Father was exercising unsupervised parenting time through Cause No. 998, and that Da.W. had filed a motion with the paternity court to “declare the specifics” of the parties’ custody arrangement but that such case would not be heard until August. Id. at 32. Counsel for Da.W. reiterated that she “did not object to a CHINS finding” or the coercive intervention of the court because she expected to request “supervised parenting time between Father and [E.G.]” in Cause No. 998. Id. Da.W.’s counsel indicated that her client believed that Father “needs some substance abuse treatment and possibly some parenting classes before he's allowed any type of unsupervised contact with [E.G.]” Id. at 33. Based upon this information, the court determined that it was appropriate to “proceed” with the CHINS factfinding. Id. Accordingly, the court denied Father's motion to dismiss the CHINS allegation as to E.G.

[10] DCS presented the testimony of FCM Mullen, Evansville Police Department Officer Phillip Luecke, Da.W., and DCS Family Case Manager Taylor Wagner (“FCM Wagner”). Da.W. testified that she was concerned with E.G. being around Father while he is using drugs, that Father did not have “proper sleeping arrangements” for E.G., and that Father does not make “good parenting decisions.” Id. at 57. Da.W. stated that E.G. has “complained of vaginal problems” after visiting with Father that is likely attributable to “lack of bathing” when in Father's care, and that Father has caused E.G. to miss doctors’ appointments because “it wasn't important to him.” Id. at 58. DCS presented evidence that Father missed thirty-five calls to submit to a drug screen, and regarding the three drug screens he did take, he tested positive for THC on two of them and positive for cocaine on one. FCM Wagner testified that she went to Father's home on February 8, 2024, and informed him that he had tested positive for cocaine. FCM Wagner said that Father claimed the test was “bullshit,” that he would “rather test positive for THC than cocaine,” and that he knew that cocaine “only stays” in someone's “system for three days.” Id. at 66. FCM Wagner further testified that when she tried to visit K.G., Jr., at the residence as had been scheduled for February 16, 2024, Father was noncompliant and told her that K.G., Jr., was gone getting a tattoo.

[11] The court took a recess, after which Father appeared for the hearing and testified on his own behalf. Father admitted to regularly smoking marijuana, claiming he often smokes with Da.W. during their “back and forth” relationship. Id. at 74. Father admitted that he smokes marijuana during his parenting time with E.G. but that he usually goes out to his car to smoke and tells E.G. he is going to smoke cigarettes. Father claimed that the positive cocaine test recently obtained by DCS was “impossible” because he has “never” used cocaine. Id. at 74, 80. Father denied that his regular marijuana use placed Children at any risk or ever caused him to “lose any control of [his] senses or [his] reasoning[.]” Id. at 76. Father admitted that he had not complied with supervised visitation with E.G. but blamed his noncompliance on E.G. Father admitted that both he and Da.W. could benefit from services to improve their parenting of E.G. At the conclusion of the evidence, the court scheduled a “ruling” hearing for June 4, 2024. Id. at 83.

[12] On June 4, 2024, the court issued its order adjudicating both Children as CHINS. During the ruling hearing held on that date, DCS reported that Father had been refusing access to his home and would not allow FCMs to visit K.G., Jr. in Father's home. When the court admonished Father that he needed to allow the FCMs into his home, Father became belligerent and claimed he did not even know K.G., Jr.’s whereabouts. After the court indicated it would contact law enforcement to find K.G. Jr., Father stated that the child was somewhere on vacation but he did not know where. The court ordered Father taken into custody after his repeated claims of not knowing K.G., Jr.’s whereabouts. Approximately an hour later, law enforcement confirmed that K.G., Jr. was indeed in Evansville so the court ordered Father released from custody.

[13] The court held a dispositional hearing on July 2, 2024, and entered orders regarding both Children on July 10, 2024. Over Father's objection, among other things, he was ordered to: obtain a substance abuse and mental health evaluation and follow any recommendations, engage in parenting education and home based case work, obtain a parenting assessment, submit to random drug screens, and remain drug and alcohol free.

Discussion

I.

[14] Father first asserts the trial court erred in denying his oral motion, made the day of the CHINS factfinding hearing, to dismiss the CHINS petition as to E.G. He argues that a February 13, 2019 order issued from the paternity court in Cause No. 998 “clearly shows that [Da.W.] has primary physical custody of [E.G.]” so the “coercive intervention of the trial court was not required[.]” Appellant's Brief at 11-12. He argues that dismissal of the CHINS petition as to E.G. was appropriate because “any of Da.W.’s concerns could have been addressed in the Paternity Action filed on January 11, 2024.” Id. at 12.

[15] As a general matter, we review trial court rulings on motions to dismiss for an abuse of discretion. J.F. v. L.K., 136 N.E.3d 624, 627 (Ind. Ct. App. 2019). “Discretion is a privilege afforded a trial court to act in accord with what is fair and equitable in each case.” McCullough v. Archbold Ladder Co., 605 N.E.2d 175, 180 (Ind. 1993). An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances before it or where the trial court misinterprets the law. See Fulp v. Gilliland, 998 N.E.2d 204, 210 (Ind. 2013).

[16] The record indicates that at the outset of the CHINS factfinding hearing, and in response to Father's oral motion to dismiss, the court summarily reviewed the docket and filings in Cause No. 998 and found the custody issue regarding E.G. to be unclear.¹ Da.W.’s counsel indicated that through recent filings with the paternity court, Da.W. was trying to clarify each party's custody status with respect to E.G. and had therefore filed a petition to modify asking for full legal and physical custody of E.G. and supervised parenting time for Father. According to the parties’ assertions to the court, regardless of Father's current legal status regarding E.G., prior to DCS involvement, E.G. was spending a considerable amount of unsupervised time with Father. Da.W.’s counsel indicated that her client believed that Father “needs some substance abuse treatment and possibly some parenting classes before he's allowed any type of unsupervised contact with [E.G.]” Transcript Volume II at 33. Counsel also indicated that the paternity court would not hear Da.W.’s petition to modify until August 2024. In other words, both DCS and Da.W. advocated, and the trial court agreed, that proceeding with the April 2024 factfinding on the CHINS petition as to E.G. was necessary and appropriate under the circumstances.

[17] To the extent Father now directs us to the February 13, 2019 order in Cause No. 998 which he argues “clearly shows that [Da.W.] had primary physical custody of E.G.,” that order was neither specifically referenced by Father's counsel nor presented to the trial court at the time of the oral motion to dismiss. Appellant's Brief at 11. It is well-settled that we may not consider matters outside the record in ruling on an appeal. Schaefer v. Kumar, 804 N.E.2d 184, 187 n.3 (Ind. Ct. App. 2004), trans. denied. Based upon the information available and known to the trial court at the time of the factfinding hearing, we cannot say the court abused its discretion in denying Father's oral motion to dismiss or that reversal is warranted on this basis.

II.

[18] Father challenges the sufficiency of the evidence to support the CHINS adjudication. In reviewing a trial court's determination that a child is in need of services, we do not reweigh the evidence or judge the credibility of witnesses and consider only the evidence which supports the court's decision and reasonable inferences drawn therefrom. In re S.D., 2 N.E.3d 1283, 1286-1287 (Ind. 2014), reh'g denied. We apply the two-tiered standard of whether the evidence supports the findings and whether the findings support the judgment. Id. at 1287. We will reverse a CHINS determination only if it is clearly erroneous. In re D.J., 68 N.E.3d 574, 578 (Ind. 2017). A decision is clearly erroneous if the record facts do not support the findings or if it applies the wrong legal standard to properly found facts. Id. Ind. Code § 31-34-1-1 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.

The statute does not require a court to wait until a tragedy occurs to intervene. In re A.H., 913 N.E.2d 303, 306 (Ind. Ct. App. 2009). Rather, a child is a CHINS when the child is endangered by parental action or inaction. Id.

[19] Before reaching the merits, we briefly address Father's suggestion that the trial court's findings of fact and conclusions of law “are insufficient to support a finding and conclusion that the Children are CHINS.” Appellant's Brief at 12 (emphasis and capitalization omitted). We note that it is generally and statutorily understood that the trial court is not required to issue findings in a CHINS proceeding, and we review any issues not covered by the trial court's findings under the general judgment standard, meaning we will 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 1286. Moreover, contrary to Father's assertion, “all” of the trial court's findings are not mere recitations of witness testimony. Appellant's Brief at 12 (citing Parks v. Deleware Cnty. Dep't of Child Servs., 862 N.E.2d 1275, 1279 (Ind. Ct. App. 2007) and arguing that “A court does not find something to be a fact by merely reciting that a witness testified to ‘x, y, or z.’ ”). Findings 1 through 3, and 15 do not contain any testimony whatsoever. Additionally, only portions of findings 6, 9, 13, and 14, contain recitations of testimony. In several of those instances, it appears the trial court was referencing testimony that it found to be credible and which it found to be supportive of its ultimate conclusion. To the extent Father challenges the sufficiency of certain findings related to the CHINS adjudication because they exclusively recite witness testimony, we need not address those findings because they amount to surplusage. See, e.g., In re B.J., 879 N.E.2d 7, 20 (Ind. Ct. App. 2008) (regarding an erroneous finding as “merely harmless surplusage” when “there [was] evidence sufficient to support the trial court's ultimate findings on the elements necessary to sustain the judgment”), trans. denied.

[20] Accordingly, we turn to address whether sufficient evidence supports the trial court's ultimate determination that Children are CHINS. The required proof of the statutory CHINS elements “guards against unwarranted State interference in family life, reserving that intrusion for families ‘where parents lack the ability to provide for their children,’ [and] not merely where they ‘encounter difficulty in meeting a child's needs.’ ” In re D.J., 68 N.E.3d at 580-581 (quoting In re S.D., 2 N.E.3d at 1287). When determining whether the “coercive intervention” of the court is necessary, courts “ ‘should consider the family's condition not just when the case was filed, but also when it is heard.’ ” Id. (quoting In re S.D., 2 N.E.3d at 1290). “Doing so avoids punishing parents for past mistakes when they have already corrected them.” Id. (citing In re S.D., 2 N.E.3d at 1289-1290). The focus of a CHINS determination is on the status of the child, not on an act or omission of the parent. See, e.g., In re N.E., 919 N.E.2d 102, 105-106 (Ind. 2010); In re S.C., 96 N.E.3d 579, 585 (Ind. Ct. App. 2017).

[21] The record reveals that DCS initially became involved with this family due to reports of Father's drug use, including both marijuana and cocaine, in the home and in the presence of Children. DCS presented evidence that Father kept marijuana out in the open in the home he shares with K.G., Jr., and that he admitted to FCM Mullen that he used marijuana regularly and that he had used it in his car in the presence of E.G. The court found that, during the pendency of these proceedings, Father has been overwhelmingly noncompliant with court-ordered drug screens, missing thirty-five calls to see if he was required to submit to a screen. On the three occasions when he was compliant with drug screens, he tested positive for THC on two of them and positive for cocaine on one. The court took judicial notice that Father pled guilty to possession of marijuana as a class B misdemeanor on February 8, 2024. Thus, there is ample evidence to support a reasonable inference of Father's continuing drug use. The record further reveals that Father refused to participate in family preservation services despite court orders that he do so, he had recently refused to participate in supervised visitation with E.G., and he has continually denied FCMs access to his home and to K.G., Jr. The court took judicial notice that in March 2024, Father was charged with invasion of privacy as a level 6 felony for violating Da.W.’s active protective order against him. In addition, the mother of each of the Children indicated to the court that they agreed that coercive intervention of the court was necessary to protect their child. The evidence presented supports the court's ultimate judgment that Children's physical or mental condition is seriously impaired or seriously endangered as a result of Father's continued drug use and criminal behavior and that they need care or treatment that is unlikely to be provided or accepted without the coercive intervention of the court.²

[22] In light of the evidence set forth above and in the record, we cannot say the trial court clearly erred in adjudicating Children as CHINS.

[23] For the foregoing reasons, we affirm the trial court's order.

[24] Affirmed.

FOOTNOTES

1.   We note that Ind. Code § 31-30-1-13(b) provides:Subject to subsection (d), a court having jurisdiction over a child who is the subject of a child in need of services proceeding or juvenile delinquency proceeding has concurrent jurisdiction with a court having jurisdiction under IC 31-14 for the purpose of establishing or modifying paternity, custody, parenting time, or child support of the child.

2.   Father asserts that “drug use outside of presence of a child is not sufficient to support CHINS findings,” and further that “an isolated use” of a drug, without more, does not support the conclusion that a child is a CHINS. Appellant's Brief at 15 (citing D.S. v. Ind. Dep't of Child Servs., 150 N.E.3d 292 (Ind. Ct. App. 2020) and In re L.P., 6 N.E.3d 1019 (Ind. Ct. App. 2014)). However, the record here supports the court's findings that Father used marijuana in the presence of Children, that Father's use of marijuana was more than an isolated occurrence, and that such use was continuing at the time of factfinding.

Brown, Judge.

Mathias, J., and Kenworthy, J., concur.