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FOR PUBLICATION

ATTORNEY FOR APPELLANT: VICTORIA L. BAILEY Fort Wayne, Indiana

ATTORNEY FOR APPELLEES: MEGAN MCCAIN Attorney For Marion County Department of Child Services Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
IN THE MATTER OF: M.W. and D.D. CHILDREN IN NEED OF SERVICES, LORRAINE DAVIS, Appellant-Respondent, vs. MARION COUNTY DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner, and CHILD ADVOCATES, INC., Co-Appellee (Guardian Ad Litem). ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 49A02-0612-JV-1146

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Geoffrey Gaither, Magistrate Cause No. 49D09-0606-JC-0249808

July 20, 2007 OPINION- FOR PUBLICATION

BAKER, Chief Judge

Appellant-respondent Lorraine Davis appeals from the trial court's determination that her minor sons, M.W. and D.D., were Children in Need of Services (CHINS). Specifically, Davis claims that the evidence was insufficient to support the Marion County Department of Child Services' (MCDCS) allegations that she had an alcohol abuse problem and that she had physically abused her sons. Concluding that the evidence was insufficient to support the CHINS determination, we reverse the judgment of the trial court. FACTS Davis is the mother of M.W., born May 1, 1990, and D.D., born March 14, 1993. According to ChaMia Gunn, an investigator with the MCDCS, Davis initially became involved with the agency in February 2006 when the MCDCS received a report 1 that Davis was intoxicated and had banged M.W.'s head on a floor. Gunn also indicated that this report alleged that Davis jumped on D.D. when he attempted to stop the altercation. Thereafter, Gunn interviewed Davis at the juvenile center and observed some bruising on Davis's arm and leg. Davis told Gunn that D.D. had inflicted the injuries and Davis later testified that D.D. had accidentally pushed her down some steps. Gunn testified that the MCDCS received a second report later that month, alleging that Davis had again become intoxicated and attacked her children. Gunn testified that another

Neither this report nor any others relating to Gunn's testimony about Davis were admitted into evidence. Moreover, there was no testimony as to who generated the reports or who made the allegations against Davis.

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report in March indicated that the Davis's home had no electricity or gas and that the children had not been enrolled in school. Gunn also testified that the MCDCS received a report in June 2006, indicating that D.D. was living in a foster home after the juvenile court ordered D.D.'s removal from Davis's custody. Gunn testified that D.D. was no longer living with Davis because of the recurring alcohol abuse problems. Gunn further maintained that Davis had either been evicted from her apartment or moved and was living with her brother. When Gunn visited Davis's residence, she observed that the refrigerator was not working and that there was very little furniture in the residence. As a result of her investigation, Gunn concluded that Davis had an alcohol abuse problem and lacked appropriate housing to care for her children. Thereafter, the MCDCS filed a CHINS petition on June 16, 2006, alleging that: On or about June 16, 2006, the Department of Child Services . . . determined, by its Family Casemanager . . . ChaMia Gunn, these children to be children in need of services because their mother and sole legal custodian, Lorraine Davis, has failed to provide her children with a safe and stable home environment, free of abuse and neglect. Ms. Davis has a significant history with DCS and alcohol abuse. The children have also disclosed allegations of alcohol abuse. MCDCS has extensive history with the family and has previously attempted to offer services designed to ensure the health, safety, and welfare of the children. At this time, however, the children are endangered in the care of Ms. Davis and the family is in need of rehabilitative services. Appellant's App. p. 21. At a pretrial conference that was conducted on August 16, 2006, the trial court ordered both children to be placed back into Davis's custody for temporary in-home visitation. On October 12, 2006, the trial court granted the MCDCS's motion to terminate the children's inhome visitation because of Davis's alleged alcohol abuse, and both D.D. and M.W. were 3

again removed from Davis's care. However, a substance abuse screen revealed a negative test for five classes of drugs. Additionally, an alcohol screening assessment demonstrated that Davis did not have an alcohol problem. Gunn testified at the fact-finding hearing on November 14, 2006, about the reports that the MCDCS had received regarding Davis's alcohol abuse and physical abuse of her children. Gunn stated that she had reviewed police reports and interviewed Davis and her sons. However, Gunn admitted that she had no personal knowledge of the allegations. D.D. testified that he was the individual who had alleged that Davis had been drunk and banged M.W.'s head against the floor. He testified that those allegations were not true and that he had lied because Davis prohibited him from leaving the house after he had caused some problems at school. D.D. also stated that Davis did not have an alcohol problem and, despite her strictness, was a good mother. Davis denied the allegations of alcohol abuse and physical abuse against her sons. She also testified that she had vacated her apartment because the owners refused to fix problems that she had been experiencing with the plumbing. As a result, Davis maintained that she moved to a different residence the same day she had left the previous apartment. Davis also testified that although D.D. had been arrested for battery regarding the incident involving the stairs, the injuries were accidental. M.W. also testified that Davis did not have a drinking problem and that she had never hit his head against the floor. He also testified that Davis and D.D. did not get into fights.

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At the conclusion of the hearing, the trial court determined that M.W. and D.D. were CHINS. The court stated, "I think that more services are needed and need to take place. I am not entirely sure what they are. Ms. Davis, basically I didn't believe either of your testimony [sic]. I just didn't believe it. I don't know to the extent of what you are lying about but I just flat out didn't believe it." Tr. p. 48-49. Davis now appeals. DISCUSSION AND DECISION I. Standard of Review Indiana Code section 31-34-1-1 provides that a child under eighteen years old is a CHINS if: (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; and; the child needs care, treatment or rehabilitation the child: (A) is not receiving; and (B) is unlikely to be provided or accepted without the coercive intervention of the court. The MCDCS bore the burden of proving by a preponderance of the evidence that Davis's children were CHINS. I.C.

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