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FOR PUBLICATION
ATTORNEY FOR APPELLANT: AMY KAROZOS Greenwood, Indiana ATTORNEYS FOR APPELLEE: PATRICK M. RHODES Indiana Department of Child Services Indianapolis, Indiana ROBERT J. HENKE DCS Central Administration Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
IN RE THE MATTER OF: B.N. AND H.C. CHILDREN IN NEED OF SERVICES M.C. (Mother) Appellant-Respondent, vs. MARION COUNTY DEPARTMENT OF CHILD SERVICES, Appellee- Petitioner, and CHILD ADVOCATES, INC; Appellee-Guardian Ad Litem. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

FILED
of the supreme court, court of appeals and tax court

Jun 13 2012, 9:17 am

CLERK

No. 49A02-1110-JC-1025

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Diana Burleson, Magistrate The Honorable Gary Chavers, Judge Pro Tempore Cause Nos. 49D09-1105-JC-021271 & 49D09-1105-JC-021272

June 13, 2012 OPINION - FOR PUBLICATION VAIDIK, Judge

Case Summary M.C. ("Mother") appeals from the juvenile court's determination that her son and daughter are Children in Need of Services ("CHINS"). Mother contends that the

evidence is insufficient to support the juvenile court's conclusion that her children's physical and mental health were seriously impaired or endangered because of her inability, refusal, or neglect to supply them with necessary food, clothing, shelter, medical care, education, or supervision. We conclude that the evidence in this case is indeed insufficient to support the juvenile court's determination that B.N. and C.H. are CHINS, and we therefore reverse. Facts and Procedural History On May 26, 2011, police stopped Mother in the parking lot of a gas station. When police searched her car, they found oxycodone, Xanax, and marijuana. Her seven-yearold son B.N. was in the back seat of the vehicle. Police also discovered that Mother's driver's license was suspended. Mother was taken into custody by police and charged with possession of a controlled substance (oxycodone) and possession of marijuana. The Department of Children and Family Services ("DCS") took custody of B.N. and Mother's three-year-old daughter, H.C. On May 31, DCS filed a petition alleging that B.N. and H.C. were CHINS because Mother had failed to provide them with a "safe and appropriate living environment free from drugs." Appellant's App. p. 29. Specifically, the petition alleged that the children 2

were CHINS under Indiana Code section 31-34-1-1, which provides that a child is a CHINS if "[t]he 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." Because Mother wished to have B.N. and C.H. returned to her care, she voluntarily submitted to four drug screens in June and July. At each drug screen, Mother provided DCS staff with current prescriptions for oxycodone and Xanax. Mother tested negative at each drug screen, and B.N. and H.C. were returned to her care in mid-July. After their return, Mother voluntarily submitted to a fifth drug screen, which was also negative. A fact-finding hearing was held on October 17.1 At the hearing, DCS introduced evidence of Mother's May 26 arrest as well as DCS's previous involvement with Mother and B.N. four years earlier--in 2007, DCS had substantiated claims of domestic violence by the children's father, William Neighbors, against Mother. Michelle Jeffries, a DCS family case manager, testified to her involvement with Mother since her May 26 arrest. FCM Jeffries informed the court of Mother's voluntary, negative drug screens. Tr. p. 40. She also told the court that Mother had voluntarily participated in home-based services, though at the time of the hearing she was no longer doing so. Jeffries also said that DCS made a referral for a substance-abuse assessment for Mother and mental-health assessments for the children; however, those assessments
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At that time, Mother had been charged with possession of a controlled substance and possession of marijuana but had not been convicted of any charges.

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had not been completed. Jeffries also stated that Mother had recently been ordered to undergo random drug screenings, but Mother, who did not have a valid driver's license, had not reported to these screenings. Jeffries also told the court that Mother, B.N., and C.H. were living in a house that Mother was renting and that Mother was employed. Jeffries also said that to her knowledge, Mother no longer saw Neighbors. Id. DCS summarized their concerns regarding Mother as follows: Mother had been arrested and charged with possession of a controlled substance (oxycodone) and possession of marijuana and had admitted smoking marijuana in the past, Mother had not completed recent random drug screens, and visits to Mother's current home, which she rented, indicated that other individuals may have been staying there. Mother presented the court with a prescription for oxycodone, which was valid at the time of her arrest. Though she did not produce a prescription for Xanax, Mother testified that she had been taking Xanax and oxycodone with valid prescriptions since 2007. Id. at 65. Mother explained that the medication helped her cope with anxiety after the 2007 domestic-violence incident with Neighbors. She also confirmed that she had a protective order against Neighbors and no longer saw him. Id. at 49. That same day, the juvenile court entered an order finding B.N. and C.H. to be CHINS. The order included the following factual findings: 1. [H.C] is a minor whose date of birth [is] December 5, 2007. 2. [B.N.] is a minor whose date of birth is July 31, 2004. 3. Their Mother is [M.C.]. 4. Their Father is [Mr. Neighbors]. 5. On May 26, 2011[,] [Mother] was arrested in her car for possession of a controlled substance, oxycodone, and possession of marijuana. [B.N.] was in the car with her when she was arrested. 4

6. [Mother] admitted that she used marijuana 2 times a day, but that she had a valid prescription for the oxycodone. 7. She also knew that at the time of her arrest, her driver's license was suspended. 8. [Mother] has a prior history with DCS regarding domestic violence between [Mother] and Mr. Neighbors. In 2007, an informal adjustment was completed by [Mother]. ***** 11. Since the beginning of this case the DCS FCM [Jeffries] has asked for but has not received the following: proof of a valid prescription for oxycodone (was presented in court at the fact finding); proof of a valid prescription for Xanax; proof of employment, a copy of her lease, and proof that [H.C.] is enrolled in Head Start. 12. [Mother] did not have her children complete a mental health assessment because she was confused about the referral. 13. [Mother] participated voluntarily with home based before the children were returned home, but after the children were moved back home she was confused about meeting with them. Appellant's App. p. 20-21. Mother now appeals. Discussion and Decision Mother contends that the evidence is insufficient to support the juvenile court's finding that B.N. and C.H. are CHINS. Because a CHINS proceeding is a civil action, the State must prove by a preponderance of the evidence that a child is a CHINS as defined by the juvenile code. Ind. Code

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