In the matter of: L.E. G.E. v. Indiana Department of Child Services , 2015 Ind. App. LEXIS 332 ( 2015 )

Apr 15 2015, 9:11 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger Gregory F. Zoeller
Merrillville, Indiana Attorney General of Indiana
Robert J. Henke
David E. Corey
Office of the Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the matter of: L.E., et al; April 15, 2015
Court of Appeals Cause No.
G.E. 45A04-1404-JC-193
Appellant-Petitioner, Appeal from the Lake Superior
Court
v.
Lower Court Cause No.
45D06-9504-JC-1521
Indiana Department of Child The Honorable Thomas P.
Services, Stefaniak, Jr., Judge
Appellee-Respondent.
Pyle, Judge.
Statement of the Case
[1] G.E. appeals the juvenile court’s denial of her petition to expunge a
substantiated report of child neglect regarding her children. She claims that she
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presented clear and convincing evidence that she was unlikely to be a future
perpetrator of neglect and that there was no reason to justify the retention of the
record by the Department of Child Services (“DCS”), thus satisfying the
requirements of INDIANA CODE § 31-33-27-5. Concluding that G.E. did not
carry her burden of presenting clear and convincing evidence satisfying the
statutory requirements, we affirm the juvenile court’s denial of G.E.’s
expungement petition.
[2] We affirm.
Issue
[3] Whether the juvenile court erred in denying G.E.’s petition.
Statement of Facts
[4] On or about December 15, 2000, the Lake County Superior Court, juvenile
division, entered an order terminating G.E’s parental rights to four of her
children. In relevant part, the juvenile court concluded as follows:
The child(ren) [have] been removed from the parent[] for [at] least six
(6) months under a dispositional decree[] of this Court dated 7-06-95,
Cause Number[] 49D069504JC01521.
There is a reasonable probability that the conditions resulting in the
removal of the [children] from the [parent’s] home will not be
remedied in that: The [C]hildren were removed from Mother in 1995[]
due to neglect. Mother’s home was found to be filthy and the Children
had poor attendance in school. Mother had a history of drug abuse.
The Case Plan for reunification included drug treatment, parenting
classes, random drug screens, and visitation. Although Mother
attended two drug treatment programs, Mother relapsed after both
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programs. Mother’s visits with the Children were sporadic. Mother
did not complete parenting classes. Mother has had very little
involvement with the Children recently. [L.E.] had been returned to
Mother briefly but was later removed again[] due to Mother’s relapse.
None of the other Children were ever returned to the Mother since
their initial removal.
There is a reasonable probability that the continuation of the parent-
child relationship poses a threat to the well-being of the child[ren] in
that: for the same reasons stated above.
It is in the best interest of the [Children] and [their] health, welfare[,]
and future that the parent-child relationship between the child[ren] and
the parents be forever fully and absolutely terminated.
(App. 40).
[5] In June of 2013, G.E. began working as a cook at Pinnacle Family Child Care
(“Pinnacle”) in Gary. After about two months, Pinnacle informed G.E. that
she could no longer work there because of the substantiated report of neglect
regarding her children. Pinnacle eventually allowed G.E. to return and ensured
that she did not have direct contact with children. See Tr. 11-12.
[6] On November 13, 2013, G.E. filed a petition to expunge the records of her
children in need of services (“CHINS”) case pursuant to INDIANA CODE § 31-
33-27-5. The juvenile court held a hearing on G.E.’s petition on February 7,
2014. The only evidence presented was G.E.’s testimony. She told the juvenile
court that she had not used any controlled substances since 2003, that she is in
contact with all of her children and some of her grandchildren, and that she has
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had no further contact with the juvenile courts, nor had she committed any
crimes.
[7] DCS relied on the proceedings from the CHINS and termination of parental
rights cases. The juvenile court also took judicial notice of the order
terminating G.E.’s parental rights. The juvenile court took G.E.’s petition
under advisement and denied her petition later the same day.
[8] On March 10, 2014, G.E. filed a Motion to Correct Errors. The juvenile court
denied G.E.’s motion without a hearing, and now she appeals.
Discussion
[9] G.E. appeals the denial of her motion to correct errors regarding her petition to
expunge the substantiated report of child neglect. She essentially claims that
she presented clear and convincing evidence satisfying the requirements of
INDIANA CODE § 31-33-27-5 and, because of that, the juvenile court should
have granted her petition.
[10] The legislature enacted the Expungement of Child Abuse or Neglect Reports
statute in March of 2012, and this appears to be our first review of a petition
under this statute. INDIANA CODE § 31-33-27-5 provides the following:
(a) This section applies to information relating to substantiated
reports in any records of [DCS].
(b) An individual identified as a perpetrator of child abuse or
neglect in a substantiated report may file a petition with a
court exercising juvenile jurisdiction in the county in which
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the individual resides, requesting that the court order [DCS]
to expunge the substantiated report and related information.
(c) The petitioner shall:
(1) name [DCS] as respondent in the petition; and
(2) serve [DCS] with a copy of the petition and a summons.
(d) The court shall hold a hearing on the petition and any
response filed by [DCS].
(e) In considering whether to grant the petition filed under this
section, the court may review:
(1) the factors listed in IC 31-39-8-3 in relation to the
petitioner, if the substantiated report was the subject of
a juvenile court case; and
(2) any facts relating to the petitioner’s current status,
activities, employment, contacts with children, or other
circumstances relevant to consideration of whether the
petition should be granted.
(f) The court may grant the petition if the court finds, by clear
and convincing evidence, that :
(1) there is little likelihood that the petitioner will be a
future perpetrator of child abuse or neglect; and
(2) the information has insufficient current probative value
to justify its retention in records of the department for
future reference.
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(emphasis added).
[11] The interpretation of a statutory scheme is a question of law reserved for the
courts. Garcia v. State, 979 N.E.2d 156 (Ind. Ct. App. 2012). When
determining the legislature’s intent, we look at the “plain language of the statute
and attribute the common, ordinary meaning to terms found in everyday
speech.” Id. at 158. If the word “shall” is used, it is construed as mandatory
language creating a statutory right to a particular outcome after certain
conditions are met. Romine v. Gagle, 782 N.E.2d 369, 379 (Ind. Ct. App. 2003),
trans. denied. However, the “term ‘may’ in a statute ordinarily implies a
permissive condition and a grant of discretion.” Id. at 380. A trial court abuses
that discretion when its decision is clearly against the logic and effect of the
facts and circumstances before it. An–Hung Yao v. State, 975 N.E.2d 1273 (Ind.
2012).
[12] The clear and convincing standard is an intermediate standard of
proof that[] lies between a preponderance of the evidence and
beyond a reasonable doubt which is required to find [a
defendant] guilty in criminal prosecutions. The burden of proof
by clear and convincing evidence is not a burden of convincing
you that the facts which are asserted are certainly true or that
they are almost certainly true or are true beyond a reasonable
doubt. It is, however, greater than a burden of convincing you
that the facts are more probably true than not.
[13] In re G.Y., 904 N.E.2d 1257, 1260, n.1 (Ind. 2009) (internal quotation marks
and citations omitted).
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[14] Because G.E.’s burden of proof is clear and convincing, on appeal we will not
impose our view on whether the evidence meets this standard. See In re
Marriage of Huss, 888 N.E.2d 1238, 1245 (Ind. 2008) (citing Guardianship of B.H.,
770 N.E.2d 283, 288 (Ind. 2002)). Rather, we consider only the probative
evidence and reasonable inferences supporting the trial court’s decision to
determine whether clear and convincing evidence was presented. Id. Where, as
done here, the juvenile court enters a general order, “on appellate review the
trial court’s judgment will be affirmed if sustainable on any theory or basis
found in the record.” J.M. v. Review Bd. Of Indiana Dept. of Workforce
Development, 975 N.E.2d 1283, 1289 (Ind. 2012).
[15] Here, the only evidence presented was G.E.’s testimony that she had not used
any controlled substances since 2003, that she was is in contact with all of her
children and some of her grandchildren, and that she had not had any further
contact with the juvenile courts or committed any crimes. Because G.E.’s
burden of proof is clear and convincing evidence, and that burden is greater
than a preponderance of the evidence, it was not unreasonable for the juvenile
court to deny her petition where the only evidence presented was her testimony.
See, e.g., Petition of Meyer, 471 N.E.2d 718, 721 (Ind. Ct. App. 1984) (clear and
convincing standard not met where Mother’s testimony of daughter’s desire to
change surname was the only evidence).
[16] In addition, even if we were to assume that G.E’s testimony alone established
by clear and convincing evidence that she no longer posed a threat to children,
the juvenile court still did not err. INDIANA CODE § 31-33-27-5(f) also requires
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G.E. to show that her substantiated report of neglect or abuse no longer has
current probative value to keep in DCS’s records. Here, the fact that G.E. chose
to work at a child care center makes her history of child neglect and substance
abuse relevant, as INDIANA CODE §§ 31-33-26-2 thru 31-33-26-16 require DCS
to maintain a database of perpetrators like G.E. and make that database
available to certain people and entities, including child care providers. Further,
child care providers are prohibited by administrative rule from employing or
utilizing “the services of a person known by the division and reported to the
center as a substantiated perpetrator of child abuse.” 470 Ind. Admin. Code 3-
4.7-13(c) (2015). Further, if a criminal history check of an employee shows that
an offense of child abuse, neglect, or exploitation has occurred, “sufficient
grounds exist to revoke or deny licensure, deny employment or dismiss an
employee[.]” 470 IAC 3-4.7-8(c)(16) (2015).1 Given the potential risk to
Pinnacle’s child care license, the statutory and administrative schemes
governing the operation of child care providers make clear that G.E.’s records
have probative value.
[17] Therefore, we find that G.E. has not shown by clear and convincing evidence
that (1) there is little likelihood that she will be a future perpetrator of child
abuse or neglect; and (2) that there is insufficient current probative value to
1
We note that a criminal history check may not have revealed information regarding G.E.’s child and
substance abuse history contained in DCS’s records. However, the language of the regulatory scheme
highlights the probative value of an individual’s history of child or substance abuse as it relates to working for
a child care provider, criminal or otherwise.
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justify the retention of her records by DCS for future reference. We affirm the
juvenile court’s denial of her petition.
[18] Affirmed.
[19] Barnes, J., and May, J., concur.
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