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In re K.S.

Court of Appeals of Indiana

June 29, 2017

In the Matter of: K.S. (Minor Child)
v.
The Indiana Department of Child Services, Appellee-Petitioner. Child in Need of Services; J.J. (Mother), Appellant-Respondent,

         Appeal from the Marion Superior Court The Honorable Marilyn Moores, Judge The Honorable Rosanne Ang, Magistrate Trial Court Cause No. 49D09-1606-2022

          ATTORNEY FOR APPELLANT Daniel G. Foote Indianapolis, Indiana.

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Marjorie Newell Deputy Attorney General Indianapolis, Indiana.

          PYLE, JUDGE.

         Statement of the Case

         [¶1] J.J. ("Mother") appeals the juvenile court's order adjudicating her son, K.S. ("K.S."), to be a Child in Need of Services ("CHINS"). Mother argues that the Department of Child Services ("DCS") failed to prove by a preponderance of the evidence that K.S.'s physical or mental condition was seriously impaired or seriously endangered as a result of Mother's inability, refusal, or neglect to supply K.S. with necessary food, clothing, shelter, medical care, education, or supervision. Finding that DCS failed to present evidence, let alone sufficient evidence, that K.S.'s physical or mental condition was seriously impaired or seriously endangered and that Mother was unable to supply K.S. with necessary shelter, we reverse the CHINS adjudication.[1]

         [¶2] We reverse.

         Issue

         Whether there is sufficient evidence to support the CHINS adjudication.

         Facts

         [¶3] In June 2016, DCS received a report alleging that Mother had tested positive for marijuana after giving birth to K.S. Within twenty-four hours of K.S.'s birth, DCS Family Case Manager Kwanza Johnson ("FCM Johnson") went to Community North Hospital to speak with Mother. When FCM Johnson arrived at the hospital, Mother appeared to just be waking up. While Mother was still "pretty groggy, " FCM Johnson explained "what [she] was there for and the nature of [her] report." (Tr. 17). Mother, who admitted that she had used marijuana two months earlier to increase her appetite during her pregnancy, became very "agitated and irate." (Tr. 20). Mother refused FCM Johnson's request that she submit to another drug screen. Mother told FCM Johnson that she had been living in a motel before being admitted to the hospital but that she planned to live with her cousin or mother following her discharge. Mother, however, refused to give FCM Johnson contact information for either her cousin or mother.

         [¶4] After stepping out of Mother's hospital room and speaking with her supervisor by telephone, FCM Johnson "served [Mother] for court." (Tr. 22). FCM Johnson explained that, given Mother's behavior, DCS "had to restrict access to [K.S.]." (Tr. 22). The case manager further explained that restricted access meant that Mother "could not visit with the child or remove the child from the hospital." (Tr. 23). When FCM Johnson "served [M]other with the papers for Court, " Mother "balled the paper up and threw it at [FCM Johnson] and told [FCM Johnson] to get the 'f' out of her room." (Tr. 26). A few days later, Mother contacted FCM Johnson and asked if the case manager could explain what was happening. FCM Johnson returned to the hospital and reviewed DCS paperwork with Mother. Mother signed the documents as requested. FCM Johnson "explained what we were doing and why we were involved . . . ." (Tr. 27). Mother advised the case manager that after she was released from the hospital, she would be living at her cousin's house. Mother was calm and explained why she had initially been afraid of FCM Johnson. At this time, K.S. was "feeding well. . . . [T]here was nothing to note other than that." (Tr. 25). There was no evidence presented by DCS that K.S. tested positive for marijuana.

         [¶5] DCS immediately filed a petition alleging that K.S. was a CHINS. Specifically, the petition alleged that Mother, who had admitted using marijuana while she was pregnant, had failed to provide K.S. with a safe, stable and appropriate living environment that was free from substance abuse. The petition further alleged that Mother was homeless and lacked a plan for obtaining and maintaining stable housing. DCS placed K.S. in foster care upon his discharge from the hospital.

         [¶6] Testimony at the CHINS fact-finding hearing revealed that after it filed the petition alleging that K.S. was a CHINS, DCS had referred Mother to home-based case management services and supervised visitation. Home-based services case manager Gianna Simpson ("Case Manager Simpson") testified that she supervised two visits between Mother and K.S. in June 2016. During the visits, Mother "was very engaged with her son. . . . She did everything you expected a mother to do. She was loving, she [fed] him, changed his diaper . . . ." (Tr. 53). Mother told Case Manager Simpson that she was living with her cousin; however, visits took place at an agency because Mother told the case manager that her cousin did not want visitation at her house. Mother specifically explained that "she kind of felt like she wasn't really wanted . . . or that the stress of everything and the contact with everyone was a little ...


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