IN RE: The Matter of ROYC. Y and Roya. Y (2021)

MEMORANDUM DECISION

STATEMENT OF THE CASE

[1] Appellant-Respondent, J.Y. (Father), appeals the trial court's adjudication of his minor children, Royc. Y. and Roya. Y. (collectively, Twins), as Children in Need of Services (CHINS).

[2] We affirm.

ISSUE

[3] Father presents this court with one issue on appeal, which we restate as: Whether the trial court erred by adjudicating the Twins to be CHINS.

FACTS AND PROCEDURAL HISTORY

[4] On January 1, 2020, Mother ¹ gave birth to the Twins. That same day, the Department of Child Services (DCS) received two separate reports pertaining to the Twins. The first report alleged that the Twins were victims of neglect due to Mother's drug use, and the second report claimed that the Twins were victims of neglect due to Father and Mother's drug use, unemployment, and homelessness. DCS's family case manager Regan Woodruff (FCM Woodruff) visited Mother in the hospital. Although Mother refused to participate in a drug screen, she admitted to FCM Woodruff that she used methamphetamine. Subsequent tests revealed that the Twins were born drug-positive. The Twins were released to Mother and Father's care with the requirement that Father would act as a safe and sober caregiver.

[5] On January 6, 2020, FCM Woodruff visited the residence of Mother and Father to develop a safety plan and a plan of safe care. The plan of safe care specified that Father would act as the safe and sober caregiver, and that Mother and Father would ensure safe sleep practices for the Twins. FCM Woodruff explained the safe sleep practices and advised the parents that the Twins could not sleep with pillows, blankets, toys, bottles, or similar items around them. During this visit, FCM Woodruff administered a drug screen to Father after Father admitted that he could be positive for marijuana. However, the drug screen came back negative.

[6] Three days later, on January 9, 2020, FCM Woodruff made an unannounced visit to the residence. She had to knock several times before Mother answered the door. When FCM Woodruff was finally able to enter the home, she noticed Father lying on the couch, asleep. He did not move from the couch during the visit, which lasted approximately twenty minutes. Mother explained that she had just woken up and had been breastfeeding the Twins, who were lying in bed with her. FCM Woodruff observed the Twins lying side-by-side on a bed in the back bedroom, wrapped in blankets, and one of the Twins had vomited on herself. Finding that these conditions violated the safe sleep practices Father and Mother had agreed to abide by, FCM Woodruff removed the Twins from the parents’ care and placed them with Paternal Grandmother. One Twin required therapy for weak muscles on the left side of his body, while his sister required occupational therapy and physical therapy for gross motor skills.

[7] On January 10, 2020, DCS filed a petition, alleging the Twins were CHINS because they had tested positive for marijuana at birth, and due to continued concerns regarding a sober caregiver, safe sleep practices, and parent's substance abuse. DCS also requested a provisional protective order preventing parents from contacting Paternal Grandmother based on the parents’ prior attempts to contact the placement of their older children and previous threats made against Paternal Grandmother's life. Also on the same day, the trial court conducted an initial hearing, at the close of which the trial court ruled that the removal was in the Twins’ best interest due to lack of supervision. The trial court approved the placement and issued the provisional protective order.

[8] At the February 2020 child and family team meeting, Father agreed to participate in services despite observing that he “did not see the purpose of [the services.] (Transcript Vol. II, p. 84). FCM Lorinda Walker (FCM Walker) referred Father to Fatherhood Engagement, and requested his participation in a parenting assessment, a mental health evaluation, and random drug screens. On May 13, 2020, during a second child and family team meeting, Father asked for a referral for individual therapy, which FCM Walker submitted. Father did not utilize any of the services, except for a single communication with the Fatherhood Engagement program. Although Father tested negative for the five drug screens in January and February 2020, he has not been tested since February 27, 2020.

[9] On August 7, 2020, the trial court conducted a fact-finding hearing, and on August 17, 2020, the trial court issued its Order, adjudicating the Twins to be CHINS, based on the parents’ failure to participate in a parenting assessment, their failure to submit to drug screens in the months preceding the fact-finding hearing, and Father's failure to attend therapy sessions. The trial court concluded that the Twins’ physical and mental conditions were seriously impaired or seriously endangered by Father and Mother's neglect as evidenced by unsafe home conditions and the parents’ substance abuse. The trial court also found that the coercive intervention of the court was necessary to safeguard the Twins’ physical and mental health.

[10] On September 14, 2020, the trial court conducted a pre-dispositional hearing. FCM Walker testified that Father still had not completed his mental health evaluation, nor had he participated in random drug screenings. While FCM Walker conceded that Father's lack of testing indicated that there was no recent evidence of drug use, she observed that a reasonable inference could be made that Father used illegal substances based on his prior statement that he “could test positive for marijuana.” (Tr. Vol. II, p. 134). FCM Walker advised the trial court that she had difficulty communicating with Father and Mother. That same day, the trial court issued its dispositional order, ordering Father and Mother into reunification services, and ordered Father to complete a mental health evaluation.

[11] Father now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

[12] Father contends that the trial court abused its discretion in adjudicating the Twins to be CHINS. In order to adjudicate a child as a CHINS, DCS must prove by a preponderance of the evidence that:

(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 ․ 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.

Ind. Code § 31-34-1-1 (2019). In making its determination, the trial court should consider the family's condition not just when the case was filed, but also when it was heard. In re S.D., 2 N.E.3d 1283, 1290 (Ind. 2014). A CHINS adjudication cannot be based solely on conditions that have ceased to exist. In re S.A., 15 N.E.3d 602, 611 (Ind. Ct. App. 2014), trans. denied. The adjudication must be based on the evidence presented in court and not on the allegations in the pleadings. Maybaum v. Putnam Co. O.F.C., 723 N.E.2d 951, 954 (Ind. Ct. App. 2000). In reviewing a CHINS determination, we do not reweigh evidence or assess witness credibility. Matter of N.C., 72 N.E.3d 519, 523 (Ind. Ct. App. 2017). We consider only the evidence in favor of the trial court's judgment, along with any reasonable inferences arising therefrom. Id.

[13] Father maintains that the trial court erred in adjudicating the Twins to be CHINS because there was no evidence the Twins were in any danger, or that their needs would go unmet in the absence of the coercive intervention by the trial court. The purpose of a CHINS inquiry is to determine whether a child's circumstances require services that are unlikely to be provided without the intervention of the court, and thus, the focus of a CHINS adjudication is on the condition of the child alone, not on the culpability of one or both parents. In re N.E., 919 N.E.2d 102, 105-06 (Ind. 2010). Nonetheless, “[n]ot every endangered child is a child in need of services, permitting the State's parens patriae intrusion into the ordinarily private sphere of the family.” In re S.D., 2 N.E.3d at 1287. Rather, a CHINS adjudication under Indiana code section 31-34-1-1 requires proof of three basic elements: the parent's actions or inactions have seriously endangered the child; the child's needs are unmet; and “perhaps most critically,” those needs are unlikely to be met unless the State intervenes. Id. It is the last element that guards against unwarranted State interference in family life. Id. State intrusion is warranted only when parents lack the ability to provide for their children. Id. In other words, the focus is on the best interests of the child and whether the child needs help that the parent will not be willing or able to provide. Id. 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.” In re N.E. 919 N.E.2d at 105.

[14] In its findings, the trial court identified Father's substance abuse as a danger to the Twins’ mental and physical conditions. Despite the safety plan that Father had agreed to abide by and to remain a sober caregiver for the Twins, Father admitted to FCM Woodruff on January 6, 2020 that he might test positive for marijuana. Although the drug screen came back negative, a reasonable inference can be made that he had recently used an illegal substance. While Father did test negative in January and February 2020, by the time of the fact-finding hearing and the pre-dispositional hearing in August 2020, Father had not been tested for six months. Furthermore, despite agreeing to properly supervise and supply the Twins with appropriate care, Father was found asleep on the couch during a DCS visit while Mother had taken the Twins, wrapped in blankets, in the bed with her, in violation of the safe sleep practices.

In the months following the removal of the Twins from his care, Father failed to remedy the issues that led to their removal in the first place. Despite requesting services, Father failed to participate in them: he did not participate in the parenting assessment or the personal therapy and had only contacted the Fatherhood Engagement program once. Although Father now declares to be willing to meet the Twins’ needs without court intervention, FCM Walker testified that Father informed her that he “did not see the purpose” of participating in services. (Tr. Vol. II, p. 84). By the time of the pre-dispositional hearing, Father had yet to participate in any services recommended by DCS.

[15] Recognizing that a CHINS determination is not a finding of guilt for either parent, but rather a vehicle to ensure the safety of the child, we conclude that violation of the safety plan, the inference of substance abuse, and Father's unwillingness to participate in services, including drug screens, have seriously endangered the Twins and without coercive intervention of the court, the Twins will not receive the safety and care they need. Accordingly, the trial court did not abuse its discretion by adjudicating the Twins to be CHINS.

CONCLUSION

[16] Based on the foregoing, we hold that the trial court properly adjudicated the Twins as CHINS.

[17] Affirmed.

FOOTNOTES

1.   Mother did not appeal the CHINS determination and is not part of this appeal.

Riley, Judge.

[18] Mathias, J. and Crone, J. concur