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In re B.V.

Court of Appeals of Indiana

September 27, 2018

In re the Matter of B.V., Minor Child, and D.V., Mother, Appellant-Respondent,
v.
The Indiana Department of Child Services, Appellee-Petitioner.

          Appeal from the Decatur Circuit Court The Honorable Timothy B. Day, Judge Trial Court Cause No. 16C01-1711-JC-451

          Attorney for Appellant Leanna Weissmann Lawrenceburg, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Frances Barrow Deputy Attorney General Indianapolis, Indiana

          BROWN, JUDGE.

         [¶1] D.V. ("Mother") appeals the trial court's order determining that B.V. is a child in need of services ("CHINS"). Mother raises one issue which we revise and restate as whether the evidence is sufficient to support the court's determination that B.V. is a CHINS. We reverse.

         Facts and Procedural History

         [¶2] On November 10, 2017, Mother gave birth to B.V. That month, the Department of Child Services ("DCS") filed a petition alleging that B.V. was a CHINS. The petition also alleged that both Mother and B.V. tested positive for THC, staff at the hospital reported concerns for Mother's mental health, Mother admitted to being diagnosed with bipolar disorder and not taking medication for treatment, and Mother was living with a known drug user.

         [¶3] On November 15, 2017, the court held a hearing at which Mother denied the allegations and asserted that she never yelled at her baby and that she was diagnosed with a mood swing disorder and not bipolar disorder. Family Case Manager Erin Tomlinson testified that Mother at one point, while she was nursing B.V., said: "Ow, you bit me you stupid f ----- child." Transcript Volume II at 16. She testified that Mother admitted to regularly smoking marijuana during her pregnancy while knowing the effects that marijuana can have on a child, and to smoking marijuana when B.V. was in the home. She testified that DCS had concerns about Mother's present living situation because she was living with Kevin Ruble in an apartment where Ruble was on home detention for previous drug charges and, when case managers and law enforcement arrived at the home for the detention, they detected a strong odor of marijuana in the home. She testified that B.V. was placed in a foster home. After some discussion, the court stated "I'm going to be safe than sorry with a five-day old baby." Id. at 23.

         [¶4] On March 8, 2018, the court held a hearing. Mother testified that she was living with her ex-boyfriend, Ruble, in November 2015, and subsequently began staying with her mother and grandmother before obtaining her own apartment two months before the hearing. She testified that she was no longer with Ruble and that she lived with Anthony Hubbard periodically for "a month or so." Id. at 31. She testified that she provided DCS or her caseworker with her current address, and that she was employed at McDonald's for "maybe two and a half weeks" and had previously worked at OSO and "Valleyo (phonetic)." Id. at 33-34. She testified that she agreed to participate in services and had an assessment in which it was recommended that she attend drug classes once a month. She stated that she called DCS every day to determine if she was on the drug screen list, that she was tested maybe two or three times a week, and that she had been visiting B.V. regularly. On cross-examination, Mother testified that she had been receiving clean drug screens for three months, that she had the support of her family, and that she felt she was able to stay free of THC or any other drug.

         [¶5] Family Case Manager Chelsea Morgan ("FCM Morgan") testified that Mother calls about every five days which is concerning because there are certain drugs that would be out of her system within three to five days, but that Mother had generally tested negative on the screens. FCM Morgan testified that she did not receive Mother's address until February. When asked if DCS had concerns regarding Mother's present housing because DCS had not been able to see it, she answered: "No, I don't have concerns, specifically for that. No." Id. at 55. DCS's attorney asked: "So is [DCS] okay with her apartment given her testimony, or does the department wish . . . ." Id. FCM Morgan answered: "We would like to go look at her house. Yes, we [are] concerned. I didn't understand." Id. On cross-examination, FCM Morgan acknowledged that she had Mother's correct address on February 7th but had not been to Mother's home since then, and that Mother called in fifteen times since December. She acknowledged that Mother completed her assessment at Centerstone, had been regularly visiting with B.V., and that reports from visitation had been positive.

         [¶6] Rodney Fischer, the visit supervisor, testified that Mother did very well during the two two-hour visits per week with B.V., that she was "a loving doting mom," that she always appeared at every visit with a full diaper bag with everything needed, and that "she took good care of him." Id. at 62-63. He also testified that Mother was concerned about dirt under B.V.'s fingernails, pointed out that B.V. was being transported in an expired car seat, and provided a different car seat to transport him.

         [¶7] Mother testified that there were a few times she did not call in "not because I didn't want to take a drug screen, but for the fact that I worked a lot and I was tired." Id. at 67. She testified that she never refused a drug screen, was willing to take a drug screen, and had been passing the screens for several months. She also testified that she did not feel like she needed services from Centerstone and would be able to go there to obtain services on her own if she felt like she needed help.

         [¶8] The trial court stated:

So the issue today is if this child is [in] need of services, and I - as I sit here today I could make a finding that the child's in need of services based on where we started, and you know, the lack of her residency, the lack of a job, the testing positive for THC, people living in the home, a lot of those things have been alleviated. So I mean I could say that the child's not ...

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