Perrine v. Office of Child Services
| Decision Date | 06 March 2007 |
| Docket Number | No. 49A02-0608-JV-657.,49A02-0608-JV-657. |
| Parties | Susan PERRINE, Appellant, v. MARION COUNTY OFFICE OF CHILD SERVICES and Child Advocates, Inc., Appellees. |
| Court | Indiana Appellate Court |
Jan B. Berg, Indianapolis, IN, Attorney for Appellant.
Elizabeth Filipow, Marion County Department of Child Services, Indianapolis, IN, Attorney for Appellees.
Susan Perrine ("Mother") appeals from the trial court's determination that her minor daughter, L.S., is a child in need of services ("CHINS"). Mother presents a single issue for our review, namely, whether the evidence is sufficient to support the CHINS determination.
We reverse.
On November 11, 2005,1 the Johnson County authorities conducted a routine probation sweep. The sweep included Mother's Marion County residence, where Mother resided with her husband, Steven Perrine, and her disabled daughter, L.S., who was then fourteen years old. At the time of the sweep, the family also had a temporary adult houseguest.
In the course of searching Mother's residence, the Johnson County authorities found paraphernalia commonly used for methamphetamine consumption in a bag in the bedroom, but they found no methamphetamine or other drugs. The bag belonged to the Perrines' houseguest. As a result of the paraphernalia discovery, Marion County law enforcement2 arrested Mother and her husband for reckless possession of paraphernalia, child neglect, and child endangerment.
At the time of her arrest, Mother explained that L.S. is disabled and asked whether she could call someone to care for L.S. Mother's son, parents, brother, and landlord were trained in how to care for the child's special needs. The landlord lived downstairs from Mother's residence, and her parents and brother lived between three and ten minutes away. The Johnson County authorities denied that request and, instead, sent L.S. to Wishard Hospital for evaluation. After the evaluation, Wishard Hospital employees reported to the Marion County Department of Child Services ("DCS") that there was no one legally responsible to pick up L.S. upon her discharge. DCS investigated L.S.'s circumstances as a result of that report and placed L.S. in a group facility after her discharge.
Mother remained incarcerated from late on the night of her arrest until approximately 9:00 a.m. the following morning. Upon her release, DCS investigator Jennifer Sweazy interviewed Mother at the home of Mother's parents. During the interview, Mother admitted that she had been arrested for reckless possession of paraphernalia, child neglect, and child endangerment. Mother also admitted that she had used methamphetamine on the Wednesday or Thursday before her arrest.
As a result of the investigation, DCS filed a petition alleging that L.S. was a child in need of services. The petition alleged, in relevant part:
5. The children [sic] are Children [sic] in Need of Services as defined in [Indiana Code] 31-34-1 in that: one or more of the children's [sic] physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of a parent, guardian or custodian to supply one or more of the children with necessary food, clothing, shelter, medical care, education or supervision; and the children [sic] need care, treatment or rehabilitation that the children [sic] are not receiving and are unlikely to be provided or accepted without the coercive intervention of the Court, as shown by the following, to wit:
A) On or about November 14, 2005, the Department of Child Services (DCS) determined, by its Family Casemanager (FCM) Jennifer Sweazy, this child to be a child in need of services because her mother, and sole legal custodian, Susan Perrine, has failed to provide her child with a safe and stable home, free from drug use and neglect. Ms. Perrine and her husband, Steven Perrine, were arrested and incarcerated on or about November 10, 2005 for reckless possession of paraphernalia and neglect of a dependent. [L.S.] is mentally handicapped, has a seizure disorder, and is unable to independently care for herself. Ms. Perrine admitted to recent use of methamphetamines [sic] to FCM Sweazy. At this time, the child is endangered in the care of her mother. ...
The trial court held an initial hearing on the CHINS petition on November 15 and December 1, 2005, and it held a pretrial hearing on February 15, 2006. After a factfinding hearing on April 20, 2006, the trial court found, in relevant part, as follows:
5. On or about November 14, 2005, DCS received a report alleging that [L.S.] had been transported to Wishard Hospital after [Mother and her husband] were arrested by the Indianapolis Police Department after the Johnson County Sheriff's Department conducted a probation sweep.
6. Officers found several items in the Perrine's [sic] home that are commonly used in the use of methamphetamine.
7. [Mother and her husband] were both arrested for reckless possession of paraphernalia, neglect of a dependent and child endangerment. [Mother's husband] was also arrested for a probation violation. * * *
10. [Mother] had used methamphetamine the Wednesday or Thursday prior to [the DCS] investigation.
11. [Mother] is the sole legal custodian of [L.S.]
12. [L.S.] is mentally handicapped and suffers from a seizure disorder.
13. DCS substantiated the original allegations of neglect because the mother, Susan Perrine, used methamphetamine the Wednesday or Thursday prior to this investigation and was arrested for reckless possession of paraphernalia, neglect of a dependent and child endangerment, leaving no one legally responsible to care for [L.S.]
Appellant's App. at 72-73. The court then concluded that L.S. is a CHINS as defined by Indiana Code Section 31-34-1-1:3 "[L.S.] is a child in need of services because her [Mother] used methamphetamine and was arrested for reckless possession of paraphernalia, neglect of a dependent and child endangerment, leaving no one legally responsible to care for [L.S.]" Appellant's App. at 73. At the dispositional hearing on June 14, 2006, the court ordered L.S.'s continued placement outside of Mother's home. Mother appeals the CHINS determination.
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;
(2) the child needs care, treatment or rehabilitation that the child:
(A) is not receiving; and
(B) is unlikely to be provided or accepted without the coercive intervention of the court.
DCS has the burden of proving by a preponderance of the evidence that L.S. was a CHINS. See Ind.Code § 31-34-12-3. When reviewing the sufficiency of evidence, we consider only the evidence most favorable to the judgment and the reasonable inferences flowing therefrom. Hallberg v. Hendricks County Office of Family & Children, 662 N.E.2d 639, 646 (Ind.Ct. App.1996). We will not reweigh the evidence or judge the credibility of witnesses. Id.
The trial court entered findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A). We may not set aside the findings or judgment unless they are clearly erroneous. Ind. Trial R. 52(A); Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind.2000). In our review, we first consider whether the evidence supports the factual findings. Menard, 726 N.E.2d at 1210. Second, we consider whether the findings support the judgment. Id. "Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference." Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind.1996). A judgment is clearly erroneous if it relies on an incorrect legal standard. Menard, 726 N.E.2d at 1210. We give due regard to the trial court's ability to assess the credibility of witnesses. Ind. Trial R. 52(A). While we defer substantially to findings of fact, we do not do so to conclusions of law. Menard, 726 N.E.2d at 1210. We do not reweigh the evidence; rather we consider the evidence most favorable to the judgment with all reasonable inferences drawn in favor of the judgment. Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind.1999).
Here, Mother argues that the evidence is insufficient to support the CHINS determination. Specifically, Mother contends that the evidence does not support the trial court's findings of fact and that the findings do not support the trial court's conclusions. We address each contention in turn.
Mother alleges that the evidence does not support the trial court's findings of fact. Specifically, she argues that the evidence does not support findings five and thirteen. Finding five states:
On or about November 14, 2005, DCS received a report alleging that the child, [L.S.], had been transported to Wishard Hospital after her mother, Susan Perrine, and her step-father, Steven Perrine, were arrested by the Indianapolis Police Department after the Johnson County Sheriff's Department conducted a probation sweep.
Appellant's App. at 72. We agree with Mother that the evidence does not support the date listed in that finding. Instead, the evidence shows that DCS received a report alleging neglect on November 12, 2005, and that DCS then substantiated that report on November 14, 2005.
But although finding five inaccurately states the date of the report, that inaccuracy does not undermine the remainder of that finding. Mother does not contest that she was arrested or that she was unavailable for L.S. during the period of her incarceration. And the trial court qualified the date by stating "on or about November 14, 2005." Id. (...
To continue reading
Request your trial
-
In re L.B.
...98, 102 (Ind.1996). A judgment is clearly erroneous if it relies on an incorrect legal standard. Perrine v. Marion County Office of Child Servs., 866 N.E.2d 269, 273 (Ind.Ct. App.2007). As stated previously, the traditional right of parents to "establish a home and raise their children is p......
- Brown v. State
- E.T. v. Ind. Dep't of Child Servs.
-
E.T. v. Indiana Department of Child Services
...710 (Ind.Ct.App. 2018), in which other panels of this court found similar evidence insufficient to support a CHINS determination. [¶23] In Perrine, the court held that a single use of methamphetamine, outside the presence of a child and without more, was insufficient to support a CHINS dete......