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In re A.R.

Court of Appeals of Indiana

April 1, 2019

In the Matter of A.R., A.S., L.S., and J.O., Children Alleged to be Children in Need of Services; M.O. (Mother), Appellant-Respondent,
Indiana Department of Child Services, Appellee-Petitioner.

          Appeal from the Tippecanoe Superior Court Cause Nos.79D03-1806-JC-173, 79D03-1806-JC-174, 79D03-1806-JC-175, 79D03-1806-JC-176 The Honorable Faith A. Graham, Judge, The Honorable Tricia L. Thompson, Juvenile Magistrate

          Attorney for Appellant Steven Knecht Vonderheide & Knecht, P.C. Lafayette, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Natalie F. Weiss Deputy Attorney General Indianapolis, Indiana

          NAJAM, JUDGE.

         Statement of the Case

         [¶1] M.O. ("Mother") appeals the trial court's adjudication of her four minor children, A.R., A.S., L.S., and J.O. (the "Children"), as children in need of services ("CHINS"). Mother raises a single issue for our review, which we restate as whether the trial court erred when it adjudicated the Children to be CHINS.[1] We conclude that the evidence does not support the CHINS determination that the coercive intervention of the court is required to protect the Children. Accordingly, we reverse.

         Facts and Procedural History

         [¶2] In June 2018, Mother was pregnant and living at her parents' house. At that time, Mother had three children: A.R., born February 18, 2007; and A.S. and L.S., born March 9, 2015. On June 15, Mother's parents informed her that she could no longer live at their house. That same day, Mother checked into a hospital and gave birth to her fourth child, J.O. Shortly after J.O.'s birth, the hospital tested J.O.'s cord blood, which tested positive for methamphetamine.

         [¶3] While Mother was still at the hospital, Indiana Department of Child Services ("DCS") Family Case Manager ("FCM") Andrea Woodard spoke with Mother about Mother's living situation. Mother admitted that she was not sure where she was going to live when she left the hospital. FCM Woodard also asked Mother about the presence of methamphetamine in J.O.'s cord blood. Mother told FCM Woodard that she did not know how methamphetamine got into J.O.'s system, but that it "could've gotten there from being around a friend" who was using methamphetamine for approximately thirty minutes. Tr. Vol. II at 12. After her conversation with Mother, FCM Woodward determined that an emergency existed and removed the Children from Mother's care "on the spot." Id.

         [¶4] On June 20, DCS filed a petition alleging that the Children were CHINS. Specifically, DCS alleged that the Children were CHINS due to Mother's homelessness. DCS additionally alleged the J.O. was a CHINS because she had been born with methamphetamine in her system. The next day, Mother, A.R., A.S., and L.S. submitted to a hair follicle test. Mother, A.S., and L.S. all tested positive for methamphetamine, with Mother's level being "fatal." Id. at 98.

         [¶5] The trial court held an initial hearing on the CHINS petition. During that hearing, the trial court ordered Mother to submit to drug tests. The court also approved Mother's participation in parenting time if her drug tests came back negative but ordered visitations to stop should Mother test positive.

         [¶6] After DCS removed the Children from Mother's care, DCS offered Mother case management and visitation services. Mother met with her case manager, Molly Craig, once per week and was doing "well." Id. at 20. Mother also regularly participated in visitation with the Children.[2] Mother visited with the Children three days per week for two and one-half to three and one-half hours per visit.

         [¶7] The trial court held a fact-finding hearing on the CHINS petition on August 17 and 20. During the fact-finding hearing, DCS presented evidence that, in 2009, Mother, who is a registered nurse, had been convicted of possession of a controlled substance, as a Class C felony, after she had stolen prescription pain pills from patients. DCS also presented as evidence the results of the June 21 hair follicle test, which results indicated that Mother had tested positive for methamphetamine on that date. DCS also called Nathan Elkins, an employee in the permanency department of DCS. Elkins testified that, during one random drug screen, Mother admitted that she had used methamphetamine while she was pregnant with J.O. and that the last time she had used methamphetamine was approximately one month prior to J.O.'s birth. Other than the June 21 hair follicle test, DCS did not submit as evidence the result of any other drug test during the fact-finding hearing. Rather, at the dispositional hearing, Elkins testified that Mother was "testing negative for everything" but her prescriptions and that she had not tested positive for methamphetamine "since the start of the case." Id. at 127.

         [¶8] Elkins also testified regarding the visits between Mother and the Children. Elkins testified that the visits have been "outstanding . . . every time." Id. at 20. Elkins stated that he "never had concerns" during any of the visits that he had supervised and that the Children "are very, very bonded to" Mother. Id. at 20-21. Further, Marcus Jackson, who took over supervising Mother's visitation with the Children on August 1, testified that the visits between Mother and the Children "are going really, really great" and that Mother is "doing very well" with the Children. Id. at 105. He further testified that Mother is "parenting and providing everything they need" such as "bottles, food, . . . all those things, and just . . . bonding." Id. He also testified that Mother does "a great job" at multitasking between the Children. Id. Jackson further testified ...

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