The Indiana Court of Appeals Thursday reversed the findings that four sisters are children in need of services, noting none of their parents’ actions or inactions endangered the children.
Father Ja. K. and mother Je. K. had four daughters together while married; they filed for divorce in 2011, but that action was later dismissed and a final custody determination was never entered. Father was awarded temporary custody and kept the children until 2015, when he lost his job. He had to move into a hotel with his father and the girls, but when his father lost his job, Ja. K. took the girls to live with their mother instead of becoming homeless. The girls had also lived with an aunt and uncle at some point that year because of father’s unstable housing issues.
The girls often changed school districts because of housing issues, but always maintained above-average grades.
The Department of Child Services received a report in June 2015 that mother’s boyfriend was using illegal drugs. The three oldest children never saw any drug use; the youngest said the man took a lot of pills for his back. The family case manager took drug samples from the adults but left the children in their mother’s care. Mother’s drug screening came back positive for meth and amphetamine; a screening four days later was positive, but with a lesser amount. Subsequent screenings came back clean.
DCS filed a CHINS petition. Father testified he wanted the girls back and they could live with him, his girlfriend, and their 5-month-old son. The girls were at that point living with an aunt and uncle.
The juvenile court adjudicated the sisters as CHINS, noting the unstable housing situation, mother’s positive drug tests, that the children often changed schools, and that the girls did not get along with father’s girlfriend, among other things.
Both parents appealed, and the COA reversed in In the Matter of: S.K., R.K., M.K., and A.K., Ja.K. (Father) and Je. K. (Mother) v. Ind. Dept. of Child Services, 32A01-1512-JC-2085.
“To be a CHINS, a child must be seriously impaired or endangered ‘as a result of the inability, refusal, or neglect of the child’s parent’ to provide necessary care. Ind. Code §31 -34 -1-1,” Chief Judge Nancy Vaidik wrote. “Children cannot become CHINS by the mere happenstance of a family’s economic misfortune; the statute requires an action or failure to act by the parent that leads to serious endangerment of the children as a result of the lack of necessary care. In this case, the children were not endangered by the acts or omissions of the parents. In fact, the parents took deliberate actions to avoid placing the children in the endangering condition of homelessness. We therefore conclude that the juvenile court’s determination that the children are CHINS was clearly erroneous.”