Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 1 of 23

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Daniel G. Foote

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Katherine A. Cornelius

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In re the Matter of K.J. and J.J.,

Minor Children, and J.J., 

Mother,

Appellant-Respondent,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner.

November 15, 2018

Court of Appeals Case No.

18A-JC-699

Appeal from the Marion Superior 

Court

The Honorable Marilyn A. 

Moores, Judge

The Honorable Heather Welch, 

Special Judge

Trial Court Cause Nos.

49D09-1707-JC-2391

49D09-1707-JC-2392

Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 2 of 23

[1] J.J. (“Mother”) appeals the trial court’s order determining that K.J. and J.J. (the 

“Children”) are children in need of services (“CHINS”). Mother raises two 

issues which we consolidate and restate as whether the evidence is sufficient to 

support the court’s determination that the Children are CHINS. We affirm.

Facts and Procedural History

[2] On June 12, 2016, Mother gave birth to K.J. On June 29, 2017, this Court 

issued an opinion reversing the CHINS adjudication of K.J. See In re Matter of 

K.S., 78 N.E.3d 740, 742 (Ind. Ct. App. 2017).1 We stated:

Mother specifically contends that DCS failed to prove by a 

preponderance of the evidence that [K.J.’s] physical or mental 

condition was seriously impaired or seriously endangered as a 

result of Mother’s inability, refusal, or neglect to supply [K.J.]

with necessary food, clothing, shelter, medical care, education, or 

supervision. We agree.

As set forth in the relevant CHINS statute, it is DCS’s burden to 

prove that a parent’s actions or inactions have seriously 

endangered her child and that the child’s specific needs have not 

been met. The trial court adjudicated [K.J.] to be a CHINS after 

concluding that Mother used marijuana and did not have stable 

housing. As to the first finding, Mother admitted that she had 

used marijuana two months before [K.J.’s] birth to increase her 

appetite during pregnancy. However, there is no evidence 

showing how, specifically, Mother’s use of marijuana two 

months prior to giving birth seriously impaired or seriously

endangered [K.J.]. DCS presented no evidence that he tested 

positive for marijuana, or, even if he did, how a positive 

 

1

In In re Matter of K.S., K.J. was referred to as K.S. On August 16, 2017, this Court’s opinion in In re Matter 

of K.S., 78 N.E.3d 740, was certified. 
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 3 of 23

marijuana test would have or did endanger him. See In the Matter 

of S.M., 45 N.E.3d 1252, 1255-56 (Ind. Ct. App. 2015) 

(concluding that there was no evidence presented that infant 

H.G. was endangered when he was born with marijuana-positive 

meconium). In fact, testimony at the hearing revealed that 

during his first days of life, [K.J.] was “feeding well” and that 

there was nothing other to note. (Tr. 25). During supervised 

visits with [K.J.] shortly after his birth, Mother was engaged and 

loving and “did everything you expected a mother to do.” (Tr. 

53). At the time of the fact-finding hearing, [K.J.’s] foster mother 

testified that he was developing well and meeting his milestones.

As to the second finding, DCS presented absolutely no evidence 

that Mother did not have stable housing. Rather, our review of 

the evidence reveals that within twenty-four hours of [K.J.’s]

birth, Mother told FCM Johnson that she and her son planned to 

live with her cousin when they were discharged from the 

hospital. Mother’s testimony at the fact-finding hearing 

confirmed that Mother had moved in with her cousin and had 

lived there for several months. Mother’s statement to Case 

Manager Simpson that she felt that she “wasn’t really wanted” at 

her cousin’s house does not support the juvenile court’s finding 

that Mother did not have stable housing. (Tr. 48). Although the 

trial court may have been concerned that at some point, Mother 

and [K.J.] would be asked to move out of Mother’s cousin’s 

house, at the time of the fact-finding hearing, this had not 

happened. See S.M. (explaining that future concerns rather than 

present facts are not enough to support a CHINS adjudication). 

Based upon the totality of this evidence, there is insufficient 

evidence to support the CHINS adjudication.

Id. at 745.

[3] On July 13, 2017, Mother gave birth to J.J. On July 24, 2017, the Indiana 

Department of Child Services (“DCS”) filed a petition alleging that the 
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 4 of 23

Children were CHINS based in part upon Mother’s failure to provide them 

with a safe and appropriate living environment free from substance abuse. That 

same day, the court held an initial hearing and ordered the continued removal 

of K.J. from Mother’s care, and placement of J.J. with Mother in home 

contingent upon her participation in a substance abuse assessment, home based 

case management, home based therapy, and random screens and following all 

recommendations. The court ordered that Mother have no less than six hours

per week of supervised parenting time with K.J. 

[4] On September 6, 2017, the trial court held a pretrial conference, scheduled an 

adjudication hearing for November 6, 2017, and ordered Mother to submit to a 

drug screen within forty-eight hours. On September 8, 2017, Mother filed a 

Motion to Dismiss or, in the Alternative, Motion for Immediate Temporary 

Trial In-Home Visitation or Relative Care. She argued that the case should be 

dismissed based upon this Court’s previous opinion reversing the CHINS 

adjudication of K.J., res judicata, and the allegations in DCS’s petition. In the 

alternative, she requested that the court order immediate temporary trial inhome visitation with K.J. That same day, the court entered an order indicating 

that it would take the motion under advisement until the September 19, 2017 

hearing. On September 15, 2017, DCS filed a request for removal of J.J. from 

in-home placement with Mother, objected to Mother’s request for dismissal, 

and objected to immediate placement of K.J. in home with Mother. 

[5] On September 19, 2017, the court held a hearing and entered an Order of 

Detention with respect to J.J. finding that it was in the best interests of the child 
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 5 of 23

to be removed from the home environment, and that remaining in the home 

would be contrary to the child’s welfare because of: an inability, refusal or

neglect to provide shelter, care, and/or supervision; the child needing

protection that cannot be provided in the home; Mother’s continued use of 

marijuana prior to and following this child’s birth; Mother’s instability of 

housing; Mother’s lack of knowledge as to where [J.J.] is physically at this time;

Mother’s failure to participate in court ordered services designed to assure the 

child’s safety; and Mother’s lack of communication with DCS, the guardian ad 

litem, and service providers. The court ordered Mother to relinquish J.J. to 

DCS custody and also denied her motion to dismiss. It ordered her to 

participate in random drug screens, a substance abuse assessment, home based 

case management, home based therapy, and supervised parenting time. 

[6] On November 6, the court held a hearing. Family Case Manager Dermita 

Johnson (“FCM Johnson”) testified that she came into contact with Mother on 

July 14, 2017, at Community Hospital when J.J. was one or two days old. 

FCM Johnson later went to Mother’s home where Mother informed her that 

she knowingly, while pregnant, smoked marijuana every other day. She 

testified that she attended a child and family team meeting on July 31, 2017, 

which was a date confirmed by Mother, but Mother did not attend. 

[7] Carol Cliff, a visit supervisor and parent aid, testified that she received a referral 

in July for supervised visits between K.J. and Mother. She testified that it was 

initially “a little hard” to contact Mother, but eventually developed a schedule 

with Mother’s participation. Transcript Volume II at 54. She testified that the 
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 6 of 23

schedule did not work out well because Mother had a difficult time with 

transportation and that the only visit Mother had was when she provided 

transportation for her. For the following visit, Mother had stated that she had 

transportation to the visit, but she did not show up. For the next scheduled 

visit, Mother texted Cliff about a half hour before the visit to cancel it due to 

“her being exhausted from being up with the new baby.” Id. at 56. Cliff 

subsequently attempted to make contact with Mother by calling and texting but 

was unable to do so to proceed with other visits. 

[8] Bethany Crismore, a therapist, testified that she received a referral on August 

15, 2017, and was assigned to perform an intake with Mother to begin services. 

Crismore made eight phone calls and went to Mother’s apartment to attempt to 

meet her face to face, but Mother did not answer the door. Crismore testified 

that she connected with Mother on four phone calls, but Mother twice told her 

she was busy and asked if she could call her back, one time said she had a 

kidney infection and that she would call her back, and another time Mother did 

not “actually say anything” to her. Id. at 65. Crismore stated that Mother did 

not call her back, Mother did not complete an intake, and the referral was sent 

back on August 30, 2017. 

[9] Latrice Smith (“Smith”), a home based case manager, testified that she received 

a referral for Mother at the end of September for case management and 

supervised visits. She testified that she spoke with Mother in “maybe midSeptember to schedule a visit,” but “[t]hat did not happen.” Id. at 69. She 

stated that she supervised eight visits between Mother and K.J. and J.J. 
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 7 of 23

beginning on September 19th. When asked about the visits, Smith testified that 

they never had any major incidents, there was “some lack in parenting” in 

being able to manage both children at the same time, and that K.J. walked off a 

couple of times in the parking lot because Mother struggled with the “logistics 

of getting both kids to the car.” Id. at 70-71. She also testified that K.J. 

wandered off in the visit area, and that she had to ask Mother to go get K.J. 

“maybe at least four times.” Id. at 72. 

[10] Smith also testified that she provided transportation to Mother and picked her 

up “from a couple of motels and from a house – apartment.” Id. at 74. Mother 

told her that she was having issues paying for the motel and asked to borrow 

some money. She testified that she made a plan to meet Mother two times per 

week regarding employment, housing, and parenting skills, but she met with 

her only once in six weeks because Mother cancelled a number of meetings due 

to job interviews “or something like that.” Id. at 78. Smith testified that there 

were some “no call, no shows” with respect to visits with the Children and that 

one visit ended early so that Mother could make sure she entered the home 

where she was staying. Id. at 78. On cross-examination by the guardian ad 

litem’s counsel, Smith stated that she reduced the available visits from six hours 

to three hours because Mother was having issues making it both days for six 

hours. 

[11] Brittany Smith (“Brittany”), a home based case management service provider, 

testified that she received a referral for Mother on October 13, 2017, contacted 

Mother, and scheduled an intake for October 18th. She stated that she 
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 8 of 23

informed Mother that she could meet her at Mother’s home, Mother told her 

that was not possible, and they scheduled to meet at a local library. Brittany 

went to the library and called Mother and Mother stated that she “wasn’t going 

to be able to get there right away because her ride had something wrong with 

her car and had to get it fixed.” Id. at 108. They rescheduled for October 23rd, 

but Mother sent Brittany a text message that morning saying that she could not 

obtain a ride. Brittany offered to meet Mother where she was, but Mother said 

“that wasn’t possible.” Id. They rescheduled for the next day, but Mother 

again said she “didn’t have a ride to be able to meet,” Brittany told her that she 

could meet Mother where she was, and Mother said she was at her cousin’s 

home and her cousin did not have furniture yet. Brittany told her that was fine, 

but Mother declined to meet with her. Brittany scheduled a meeting for 

October 27th and told Mother she would have to close out the referral if Mother 

cancelled, Mother expressed understanding, and Brittany was unable to reach 

Mother on the day of the appointment. 

[12] Taylor Yeskie, a home based caseworker and visitation facilitator, testified that 

she was assigned to Mother in March 2017 and provided transportation for

prenatal doctor appointments and trips to the pharmacy, work, and court. She 

testified that Mother told her that she would screen positive for marijuana and 

that she used marijuana in order to have an appetite. Yeskie stated that when 

Mother picked out chips and a drink at a gas station, Yeskie told her that she 

could get peanut butter and bread that would last her longer than just that 

evening because Mother was complaining that she was not making enough 
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 9 of 23

money to eat. Mother twice “no showed on” Yeskie, and Yeskie subsequently 

“basically just did the transportation to and from wherever [Mother] needed.” 

Id. at 119. 

[13] Randi Turner, a home based caseworker, testified that he was Mother’s 

caseworker from June until August 2017, and that he saw Mother once a week 

in the beginning but “it just kind of died off.” Id. at 128. He stated that he 

made efforts to contact Mother but would receive no response and closed the 

referral. 

[14] On November 9, 2017, the court continued with the hearing. Cindy 

Strietelmeier, an employee of Families First who processed referrals from DCS 

and initiated the first appointments for all clients, testified that she received a 

referral from DCS for Mother for a substance abuse assessment and contacted 

her on June 29, 2017. Strietelmeier informed Mother that assessments can 

occur anytime between 10:00 a.m. and 3:00 p.m. on Mondays and Thursdays. 

Mother agreed that she would do a walk in on one of those days but never 

showed up. 

[15] Guardian ad litem Greg Huff (“GAL Huff”) testified that he was assigned to 

the Children on July 24, 2017. He stated that he met with Mother on August 2, 

2017, at the Beech Hollow address,2that Mother admitted she tested positive 

for marijuana at the initial hearing, that she stated she was “possibly interested 

 

2 At some points in the transcript, Beech Hollow is spelled Beech Hallow.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 10 of 23

in leaving [K.J.] where he was in the foster home because she hadn’t seen him 

in so long . . . as long as she could keep [J.J.] with her,” and that she was in her 

apartment “for a while but she wasn’t going to be there indefinitely.” 

Transcript Volume III at 17. GAL Huff testified that he was somewhat 

concerned with J.J. remaining in the home and that he attempted to contact 

Mother to see J.J. but was unsuccessful in reaching her at Beech Hollow or 

elsewhere. He stated his agreement that Mother complete services related to 

her stability and substance abuse “[b]ecause it’s necessary for the children” and 

“[t]hey need the stability of a home and a mother that is going to be able to be 

there that does not have a history of homelessness and concerns regarding 

substance abuse.” Id. at 28. When asked why it was important that Mother 

verify her sobriety, he answered: “Because if she’s – if she can do that, that’s a 

positive. But in this situation, I don’t see that that’s happening at this time 

because of the usage of the marijuana that she had been doing quite a bit of.” 

Id. at 34-35. He testified that he did not believe the Children would be safe with 

Mother due to her homelessness and marijuana usage. He also testified that 

Mother’s inconsistent pattern of visitation with the Children was a concern. 

[16] Mother testified that she was living at the same Beech Hollow address and that 

she gave an address on Byrum Avenue in K.J.’s case because that was where 

she was staying when K.J. came home from the hospital. She testified that her 

case manager picked her up at different hotels because her friend was staying 

there. She testified that she used marijuana when she was pregnant with K.J. 

and J.J., and that she used marijuana a couple of months after J.J. was born to 
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 11 of 23

calm her nerves. When asked if J.J. was with someone else for a day or part of 

a day, she answered: “She didn’t never go with nobody.” Id. at 63. When 

asked “[e]xcept for the day you came to court,” Mother answered affirmatively. 

Id. When asked “[a]nd she was with her father,” Mother answered: “Yeah, but 

the only reason I did that was because I had to take the bus.” Id. at 64. She 

testified that she would not leave her child in the care of someone who uses 

marijuana because she “wouldn’t leave my child with nobody.” Id. The 

following exchange then occurred:

Q. Okay, but why wouldn’t you want – would you want 

somebody who’s high on marijuana taking care of your kids?

A. What do you mean? I don’t be around nobody that smokes. 

My roommate don’t smoke.

Q. My question is, would you – if you knew the caregiver, if you 

knew who you were going to have babysitting your child, if you 

knew they were using marijuana, would you allow them to watch 

your child?

A. Yeah, there’s nothing wrong with marijuana. They prescribe 

it in California. It’s free, like there’s nothing wrong with 

marijuana. You’re not going to hurt a child off of smoking 

marijuana. I’m sorry. I could see if it was heroin or all them 

other drugs, then no – hell no. I’m not stupid.

Id. 

[17] Mother testified that she did not have a job, that she receives food stamps and 

TANF, she does not pay rent, and that she pays for only “lights.” Id. at 76. 

When asked why she frequently missed visits with the Children, she stated: 
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 12 of 23

“Well, a couple of times I had interviews. A couple of times it was because of 

the caseworker – because of the caseworker but (indiscernible).” Id. at 77. 

When discussing marijuana, the guardian ad litem’s attorney asked mother, 

“And [J.J.] was in your care when you used?” Id. at 80. Mother answered: 

“Yes.” Id. She testified that she obtains her marijuana “from people,” that she 

does not buy marijuana, and that people who are not her friends give it to her. 

Id. She stated that when she goes out to obtain the marijuana she leaves J.J. 

with her roommate. She testified that J.J.’s father was Isaiah but she did not 

remember his last name and that she did not know K.J.’s father. She stated that 

she was in a relationship with a person who she considers her boyfriend but she 

did not know his name, where he lived, whether he had a job, or the names of 

his children. Mother denied having sex in exchange for money, marijuana, or 

housing. 

[18] On November 16, 2017, the court continued with the hearing. Angela Snyder, 

a registered nurse, testified that she discussed Mother’s substance abuse history 

with her and that Mother said she had smoked marijuana but not in a long 

time. She testified that Mother did not want to talk to the case worker at the 

hospital or anyone in DCS and was “very upset.” Transcript Volume IV at 37. 

[19] Smith, the home based case manager, testified that a visitation was scheduled at 

noon on November 10th, she picked up the children and arrived at the office, 

but Mother did not show. She testified that she texted Mother but did not 

receive a timely response. 
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 13 of 23

[20] Family Case Manager Nokwakhe Fuyana (“FCM Fuyana”) testified that she 

was assigned to work with K.J. in December 2016. Between then and March 

2017, FCM Fuyana attempted to communicate with Mother but Mother would 

not respond to any of her emails. After FCM Fuyana eventually received 

Mother’s phone number, Mother said that she had no reason to speak with 

DCS and later stated that she was busy and could not talk to her on the phone. 

Mother also did not respond to text messages. FCM Fuyana testified that she 

discussed drug screens with Mother in March 2017 and that Mother refused to 

take a drug screen. She testified that she attended the June 8, 2017 hearing, that 

she had a discussion with Mother on that date about services and asked Mother 

to screen before and after the hearing, and Mother refused. She also testified 

that Mother refused to screen after the July 25th hearing. She stated that 

Mother participated in choosing a date for a team meeting, the meeting was 

scheduled for July 31st, she called Mother prior to the meeting but Mother 

would not answer her phone, she texted Mother, and Mother told her that she 

was babysitting and trying to make some income and she would not make it to 

the meeting. Mother also failed to attend a subsequent team meeting and did 

not respond to FCM Fuyana’s calls or text messages. She testified that Mother 

refused to perform a screen after the November 9th hearing. FCM Fuyana 

recommended continued placement of K.J. and J.J. with the current foster 

parents and that services continue for Mother including home based therapy, 

home based casework, substance use assessment, and supervised visitation. 
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 14 of 23

[21] FCM Fuyana testified that she had a BSA in psychology and sociology, a BSA 

Honors in social development, and went through Core Training from June 2015 

until October 2015. She testified that drug use by a parent is a safety concern 

and “[t]here is more concern if the child is very young because the child cannot 

make decisions – safety decisions on their own.” Id. at 88. She also testified 

that she was recommending home based case management because it assists 

clients with maintaining stability in housing. When asked what caused her to 

request that J.J. be removed from Mother in September, she stated:

At that time I had made numerous attempts – um – to see [J.J.] 

at the home. And one of my duties as a family case manager is 

to have face to face contact with the child in the home – uh – to 

determine if the child is safe in the home. Is the child in a secure 

environment. If the child is [in] a stable environment. If the 

environment has all the needed utilities. And with [J.J.] I was 

not able to do that. Um – with [J.J.] I was not able to also 

establish if the child was in a drug free environment.

Id. at 94. She indicated that she was concerned for J.J.’s safety at the time she 

recommended her removal from Mother’s care. When asked why, she 

answered:

Because . . . we had established – um – [Mother’s] substance 

abuse – continued substance use. And we have not found a 

home where [Mother] was currently living with the child. And I 

made repeated attempts – um – to get to see the child in the home 

or let alone just to see the child. Um – even at the date of 

removal I was not able to see the child at the day of removal. It 

had to be another DCS worker because [Mother] would not avail 

the child. So, it’s a cause of safety concern for DCS not to be 

able to have access to the child as in – as in when needed.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 15 of 23

Id. at 97. 

[22] On February 8, 2018, the court entered a nineteen-page order adjudicating the 

Children as CHINS. The court found that Mother had used marijuana, had 

unstable housing, was not able to meet her own basic needs or those of the 

Children, and lacked the parenting skills necessary to keep the Children safe. 

The court also found that Mother’s inconsistency with visits was harmful to her 

relationship with the Children, that Mother would not participate in services

without the coercive intervention of the court, that Mother failed to comply 

with court orders, that her continued drug use was detrimental to the health and 

well-being of her children, and that Mother’s lack of employment causes 

concern about her ability to provide food, clothing, and shelter for the Children. 

The court concluded that the Children were both CHINS “because they are 

victims of neglect as pursuant to I.C. § 31-34-1-1 as evidence[d] by Mother’s 

unstable housing, ongoing substance abuse during pregnancy and after, and 

failure to engage in the services designed to allow the children to remain in her 

care.” Appellant’s Appendix Volume II at 202. The court also stated: “It was 

clear from Mother’s demeanor during the three-day hearing that she did not 

take this hearing seriously and did not take parenting small children seriously. 

She would roll her eyes at the testimony of witnesses she did not like, make 

other inappropriate faces, and have outbursts during the trial.” Id. at 203-204.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 16 of 23

[23] On March 1, 2018, the court held a dispositional hearing at which Mother was 

not present and her substitute counsel did not know where she was.3 FCM 

Fuyana testified that she requested random drug screens and a substance abuse 

assessment because Mother had admitted to drug use before, during, and after 

pregnancies of K.J. and J.J. She testified that Mother had shown instability in 

terms of housing, that “nobody has actually made any contact with her in the 

said address that she gave us,” that Mother has “been known to move from 

hotel to hotel,” that she has shown “instability for transportation issues,” has 

issues with her financial situation, and has shown that she is not able to manage

herself. Transcript Volume V at 15. She also testified that Mother had not 

voluntarily participated in any services. She indicated that Mother had not 

made any progress in alleviating her concerns with Mother’s housing since the 

November 16, 2017 hearing. On cross-examination by Mother’s counsel, she 

testified that Mother told her where she was living and that she went to the 

address only to find a person who kept insisting that Mother does not reside 

there. On redirect, FCM Fuyana testified that Mother has missed and has 

refused to take drug screens. 

[24] Mother’s counsel requested that the court bifurcate the hearing so that Mother 

could be present. Counsel for the guardian ad litem and DCS objected. The 

court called Mother’s cell phone and then FCM Fuyana called Mother’s cell 

 

3 Rachel Johnson stated at the beginning of the hearing that she was filling in for Mother’s counsel that 

morning. 
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 17 of 23

phone, but there was no answer. The court clarified that FCM Fuyana 

reminded Mother of the date of the hearing, and Mother’s substitute counsel 

indicated that she knew Mother’s counsel and Mother had been in contact 

about the hearing. The court stated in part: 

[Mother] just has this history of – um – not appearing and then 

kind of like today, I anticipated she wasn’t gonna answer. Cause 

they then do the same thing, right, Ms. – and you then call her 

and try to say hey, we – we wanna give you a ride. We wanna 

make this happen, we wanna help you. And so – uh – she’s just 

elected not to participate.

Id. at 42-43. 

[25] The court also stated: “I watched [Mother] very closely because she – she had 

several outbursts when other people were on the witness stand. Um – when she 

was on [the] witness stand her demeanor I found to be – uh . . . I didn’t believe 

everything she was telling the Court and so I had concerns.” Id. at 53. The 

court also stated:

[Mother] admitted that when she was staying for a short time at 

the Beech [Hollow] address that the lady – uh – who she was 

staying with – she let the lady hold her baby. She went out and 

she – uh – smoked marijuana and she came back and cared for 

the baby. And this is within – um – August or September. The 

baby was born in July. The baby was little. Um – and she quite 

frankly and I think she – she was very honest with the Court. 

She didn’t see why that’s a problem. She thought it was okay to 

use controlled substances or alcohol and then care for a baby. 

She didn’t think it was an issue. She can’t understand why the 

Court would find that to be an issue. 
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 18 of 23

Id. at 55.

[26] On March 7, 2018, the court entered a dispositional order, incorporated its 

February 2018 order, found that Mother does not have stable housing or 

employment, uses marijuana on a regular basis and has done so while pregnant 

with both children and while caring for J.J., demonstrated erratic and unusual 

behavior, refused to take drug screens, and elected to not appear in court, 

cooperate with DCS, or exercise regular parenting time. 

Discussion

[27] The issue is whether sufficient evidence supports the trial court’s determination 

of the Children’s status as CHINS. In reviewing a trial court’s determination 

that a child is in need of services, we neither reweigh the evidence nor judge the 

credibility of witnesses. In re S.D., 2 N.E.3d 1283, 1286-1287 (Ind. 2014), reh’g 

denied. Instead, we consider only the evidence that supports the trial court’s 

decision and reasonable inferences drawn therefrom. Id. at 1287. As to issues 

covered by findings, we apply the two-tiered standard of whether the evidence 

supports the findings and whether the findings support the judgment. Id. We 

review remaining issues under the general judgment standard, under which a 

judgment will be affirmed if it can be sustained on any legal theory supported 

by the evidence. Id. “We will reverse a CHINS determination only if it was 

clearly erroneous.” In re D.J. v. Indiana Dep’t of Child Servs., 68 N.E.3d 574, 578 

(Ind. 2017). A decision is clearly erroneous if the record facts do not support 

the findings or if it applies the wrong legal standard to properly found facts. Id.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 19 of 23

[28] Ind. Code § 31-34-1-1 provides:

A child is a child in need of services if before the child becomes 

eighteen (18) years of age:

(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

(2) the child needs care, treatment, or rehabilitation that:

(A) the child is not receiving; and

(B) is unlikely to be provided or accepted without the 

coercive intervention of the court.

[29] The CHINS statute, however, does not require that a court wait until a tragedy

occurs to intervene. In re A.H., 913 N.E.2d 303, 306 (Ind. Ct. App. 2009). 

Rather, a child is a CHINS when he or she is endangered by parental action or 

inaction. Id. The purpose of a CHINS adjudication is not to punish the 

parents, but to protect the child. Id. 

[30] Mother argues that the trial court’s findings regarding her use of marijuana are 

insufficient to support the CHINS determination. She argues that she testified 

that she never used marijuana around the Children and points out that 

possession of small amounts of marijuana is only a class B misdemeanor in 

Indiana, and other states have laws legalizing marijuana in some form. Mother 

asserts that the court’s findings regarding her housing are insufficient to support 

the CHINS determination because she testified she had never been homeless. 
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 20 of 23

She argues that the court’s findings regarding her employment, financial 

situation, supervision, parenting skills, demeanor, and compliance with services

are not supported by the evidence and are insufficient to support the CHINS 

determination. 

[31] With respect to Mother’s marijuana use, the record reveals that FCM Johnson 

testified that Mother informed her that she smoked marijuana every other day 

and that caseworker Yeskie testified that Mother told her that she would screen 

positive for marijuana. GAL Huff testified that Mother admitted she tested 

positive for marijuana. GAL Huff also indicated that it was important that a 

parent ensure sobriety before he recommends placement of the child back into 

the home and that this is especially true when a baby is involved. He testified 

that he did not believe the Children would be safe with Mother at this point 

“[b]ecause I think that the situation of the fact that [what I] call homelessness 

and the fact of the intense use of marijuana . . . .” Transcript Volume III at 36. 

FCM Fuyana testified that drug use by a parent is a safety concern, especially 

for a baby. Mother testified that she used marijuana, and the guardian ad 

litem’s counsel asked Mother, “And [J.J.] was in your care when you used?” 

Id. at 80. Mother answered: “Yes.” Id. She also testified that she goes out and 

meets people to obtain marijuana and leaves J.J. with her roommate.

[32] To the extent Mother challenges the court’s findings and conclusion regarding 

her housing instability, the record reveals that Indianapolis Metropolitan Police 

Officer Ivan Ivanov testified that he was dispatched to Motel Super 8 on May 

27, 2016, and came into contact with Mother who was staying there and was a 
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 21 of 23

victim of a robbery. Case manager Smith testified that she provided 

transportation to Mother and picked her up “from a couple of motels and from 

a house – apartment.” Transcript Volume II at 74. Brittany, a home based case 

management service provider, testified that Mother told her that meeting at 

Mother’s home was not possible, Mother said she did not have transportation, 

and Mother could not meet her at her cousin’s home where she was because her 

cousin did not have furniture yet and thereafter declined to meet with Brittany. 

GAL Huff testified that he became concerned that Mother was no longer living 

at the Beech Hollow address with J.J., attempted to contact Mother to see J.J., 

was unsuccessful in reaching Mother, went back to Beech Hollow on 

September 15th, and did not see Mother at the Beech Hollow address. He 

testified that he tried to make phone calls and determine Mother’s location but 

was unable to make contact with her. When asked why he agreed with the 

court’s order that Mother complete certain services, GAL Huff answered:

Because I had a concern about what I would consider the 

homelessness and the substance abuse regarding the children. 

That has been one issue because the thing is, I had not been able 

to get a hold of [Mother]. It seems like she’s been somewhat 

evasive regarding from the beginning of this case and that is a 

concern because my child – my children that I deal with, need 

stability. That is one of the main reasons.

Id. at 33. While Mother testified that she was living at the same Beech Hollow 

address, GAL Huff testified that he was confident that Mother was not living at 

the Beech Hollow address when he left that address on September 15th and 
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 22 of 23

FCM Fuyana testified that she made three attempts to visit Mother at the Beech 

Hollow address in September 2017. 

[33] As for Mother’s employment and financial situation, Mother testified that she 

did not have a job at the moment. Smith testified that Mother told her that she 

was having issues paying for the motel and asked to borrow some money. 

[34] With respect to her supervision and parenting skills, Smith, the home based 

case manager, testified that there was “some lack in parenting” being able to 

manage both children at the same time, that K.J. walked off a couple of times 

in the parking lot because Mother struggles with the “logistics of getting both 

kids to the car,” and that she had to ask Mother “maybe at least four times” to 

“go grab [K.J.] and see where he’s at.” Transcript Volume II at 70-72. 

[35] We note that Mother does not challenge the court’s findings relating to her 

failure to comply with services. Rather, Mother asserts that it is not surprising 

that she showed little willingness to work with service providers given the 

history of her initial encounter “and the ongoing knowledge that any disclosure 

she makes to [DCS] or its contractors may be used against her and in support of 

removal of her children.” Appellant’s Brief at 38. 

Conclusion

[36] Based upon the evidence and testimony presented at the fact-finding hearing

and in light of the unchallenged findings, we cannot say that the trial court’s 

findings of fact, conclusions, and judgment are clearly erroneous. The evidence 

supports the conclusion that the Children are CHINS. 
Court of Appeals of Indiana | Memorandum Decision 18A-JC-699 | November 15, 2018 Page 23 of 23

[37] For the foregoing reasons, we affirm the trial court’s conclusion that the 

Children are CHINS.

[38] Affirmed.

Altice, J., and Tavitas, J., concur.