In the Matter of: N.C. (Minor Child), Child in Need of Services and J.M. (Father) v. The Indiana Department of Child Services , 2017 Ind. App. LEXIS 130 ( 2017 )

FILED
Mar 21 2017, 8:18 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Noah T. Williams Curtis T. Hill, Jr.
Monroe Co. Public Defender Attorney General of Indiana
Bloomington, Indiana Robert J. Henke
Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: March 21, 2017
N.C. (Minor Child), Court of Appeals Case No.
53A01-1610-JC-2479
Child in Need of Services
Appeal from the Monroe Circuit
and Court
J.M. (Father), The Honorable Stephen R. Galvin,
Judge
Appellant-Respondent,
Trial Court Cause No.
v. 53C07-1605-JC-308
The Indiana Department of
Child Services,
Appellee-Petitioner.
Robb, Judge.
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Case Summary and Issue
[1] J.M. (“Father”) appeals the juvenile court’s finding that his son, N.C., is a child
in need of services (“CHINS”) and the juvenile court’s corresponding
dispositional order giving wardship of N.C. to the Indiana Department of Child
Services (“DCS”) and ordering Father to comply with the terms of a Parent
Participation Plan. Father raises two issues for our review, of which we find
the following dispositive: whether the juvenile court erred in finding N.C. to be
a CHINS. Concluding DCS did not prove by a preponderance of the evidence
that the coercive intervention of the court was necessary to ensure N.C.’s care
and therefore the juvenile court clearly erred in adjudicating N.C. a CHINS, we
reverse.
Facts and Procedural History
[2] Father and M.C. (“Mother”) are the parents of N.C., who was six years old
when these proceedings began. Father and Mother do not live together. In
addition, Mother has three daughters by three other men: H.M., her oldest,
who was not involved in these proceedings; B.C., who was fourteen at the time
these proceedings began; and K.T., who was eleven. B.C., K.T., and N.C.
were all in Mother’s primary custody.
[3] On April 27 and 28, 2016, DCS received reports indicating Mother was using
methamphetamine while caring for her children. Stephanie Clephane, a
Monroe County DCS family case manager, spoke with each of the children at
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school on April 28 and eventually connected with Mother by phone. Mother
admitted using methamphetamine in the recent past but refused to meet with
Clephane without a court order. Because of Mother’s admission, DCS
arranged for the children to begin staying with Mother’s sister as of April 28. In
the ensuing days, Mother had multiple contacts with law enforcement after
reporting her house was bugged, making suicidal threats, and complaining her
sister would not return the children to her.
[4] On May 5, 2016, the juvenile court authorized the filing of a CHINS petition
for all three children. The petition, filed the same day, alleged the children
were CHINS because Mother admitted to recently using methamphetamine
and refused to submit to requests for a drug screen; Mother was suicidal and
admitted to a hospital for treatment; one of the children reported there was
domestic violence in the home between Mother and her boyfriend; one of the
children reported she believes Mother is using drugs because of her sudden
weight loss and odd behavior; Mother refused to cooperate with DCS; and
Mother has a history with DCS. The petition also named the children’s fathers
and noted they are each noncustodial parents.
[5] Father and Mother had a prior case in Monroe Circuit Court concerning
support and custody issues regarding N.C.1 On April 29, 2016, Father filed a
petition to modify custody with the Circuit Court, alleging N.C.’s living
1
The case has a DR designation and is captioned “In re the Marriage of.” However, it is unclear from the
record whether Father and Mother were ever married.
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situation was harmful to him and DCS had indicated it was going to take
action. The Circuit Court held a hearing on June 30, 2016, at which Father,
Mother, and DCS appeared. Mother did not object to Father being awarded
temporary custody of N.C. but objected to a final custody determination before
the CHINS fact-finding hearing was completed. The Circuit Court noted N.C.
was the subject of a CHINS proceeding and that the juvenile court and DCS
had both approved placement of N.C. with Father. The Circuit Court found
the evidence supported granting Father temporary custody, but “because the
parents are not in agreement, and there is a conflict in the testimony regarding
the consistency of Father’s parenting time . . . and Mother’s alleged drug use or
negligent care of [N.C.],” the court did not make a permanent change of
custody at that time. Appellant’s Appendix, Volume II at 90. Instead, “either
parent may file a copy of the juvenile court CHINS order . . . and request a
hearing if the CHINS case is dismissed [at the fact-finding hearing] for failure to
prove or parties are discharged at a later date because the dispositional goals are
achieved[,]” and the court would then hold a hearing on either parent’s request.
Id. at 92.
[6] At the CHINS fact-finding hearing on September 1, 2016, the only testimony
related to Father was that N.C. had been placed with him pursuant to the
Circuit Court order for approximately two months, that DCS had visited
Father’s home the night before the fact-finding hearing and the visit went very
well and everything looked appropriate, and that there were no allegations
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against Father. The juvenile court found that all three children were CHINS,
concluding:
Given the ongoing domestic violence and substance abuse in the
family home, the negative impact of the domestic violence on the
children, [Mother’s] history of neglect of her children, and
[Mother’s] unwillingness to participate in services, the coercive
intervention of the court is clearly necessary to protect the health
and safety of the children.
Id. at 34. The only reference to Father in the juvenile court’s findings is that
Father is the noncustodial father of N.C.
[7] The juvenile court held a dispositional hearing on September 27, 2016. Lindsey
McDonald, the case manager, testified as follows when questioned by Father’s
attorney:
Q: How long has [N.C.] been placed [with Father]?
A: I don’t remember the exact date but it’s been a couple of
months – a few months now.
***
Q: Has there been a single issue with [Father] and [N.C.] or
[N.C.’s] safety?
A: No.
Q: Has [Father] refused to do a single thin[g] you’ve asked him
to do?
A: No.
Q: In your mind what is the need for coercive – the course of
intervention of the Court as it comes to [Father]?
A: [N.C.] needs to be allowed to have the services with his
mother and if any needs arise he needs the opportunity to
participate in those services that are offered through DCS.
Q: Do you think that [Father] would refuse to participate in
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anything?
A: These services provided through DCS he wouldn’t have to
pay for. If he weren’t involved in DCS he would be responsible
for paying for those services.
Q: Has he given you any indication he wouldn’t be willing to do
that?
A: No.
Transcript at 62-63. She also testified that Father has made N.C. available for
visits with Mother and his siblings. On cross-examination by DCS, McDonald
testified that if N.C.’s CHINS case stays open, DCS would be recommending
Father stay in contact with the case manager; notify the case manager of any
change of address, phone number, household composition, or employment; and
if DCS deemed it necessary, submit to a drug screen. McDonald stated DCS
had no current concerns that Father was using drugs and no drug screens had
yet been requested. Finally, “if the team . . . felt that there was a service that
would be appropriate for [Father] if he identified that he needed any kind of
assistance, any kind of help maybe, any kind of support, we would ask that he
enroll in that program.” Id. at 64-65.
[8] In closing, Father’s attorney noted, “At this point it seems to be the most
appropriate thing is to change custody to [Father]. [N.C.] doesn’t appear to
need services other than visits [Father] is happy [to] facilitate . . . . [Father]
doesn’t need services. I think we’re creating a CHINS case where there need
not be one . . . .” Id. at 72. Interpreting Father’s argument as a request for the
juvenile court to issue a permanent custody order and dismiss the CHINS case,
the juvenile court stated,
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The Court tends to agree that there is – it’s difficult to see the
need for a Child In Need of Services case with a child custody
order but I do note that there – it is temporary in nature.
***
If [Father] can look at me and say I’ve got a visitation order that
limits [Mother’s] contact and protects the child then I’m gonna
dismiss this case. I don’t think you’ve got that order, right?
Okay. So that’s gotta be - there’s gotta be something in place that
ultimately protects this child.
Id. at 72-73, 77. Accordingly, the juvenile court determined it was going to
issue a dispositional order on all three children and then, with respect to N.C.,
we’re going to figure out where we’re going to hold the [custody]
hearing, either in this court or [the Circuit] court. I note we
maintain concurrent jurisdiction on the issue of custody and if
there’s a modification of custody then the CHINS case will be
dismissed. If there’s not a modification of custody obviously
then the CHINS case would continue because [Father] would be
non-custodial.
Id. at 79. The juvenile court then issued a dispositional order that found, “The
children require a safe and stable home, free from Domestic violence and the
use of controlled substances by their mother. Participation by the parent in the
plan of care for the children is necessary to ensure the safety of the children.”
Appellant’s App., Vol. II at 73. The juvenile court ordered the children to each
remain in their current home or placement, awarded wardship of the children to
DCS, and ordered the family to comply with the recommendations in the
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Addendum to the Pre-Dispositional Report prepared by DCS. There were
twenty recommendations for Father, including contacting the case manager
weekly, allowing announced or unannounced case manager visits to see N.C.
and the family home, and submitting to random drug screens on request.
Following entry of this dispositional order, Father filed a Notice of Appeal.
Discussion and Decision
I. Standard of Review
[9] In order to adjudicate a child a CHINS, DCS must prove by a preponderance of
the evidence that
(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 . . . 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.
Ind. Code § 31-34-1-1; In re S.A., 15 N.E.3d 602, 607 (Ind. Ct. App. 2014), aff’d
on reh’g, 27 N.E.3d 287 (Ind. Ct. App. 2015), trans. denied. In reviewing a
CHINS determination, we do not reweigh evidence or assess witness credibility
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for ourselves. In re S.A., 15 N.E.3d at 607. We consider only the evidence in
favor of the juvenile court’s judgment, along with any reasonable inferences
arising therefrom. Id.
[10] The juvenile court entered findings of fact and conclusions thereon sua sponte
in its order adjudicating N.C. a CHINS.2 Our review is therefore governed by
Trial Rule 52(A). For issues covered by the juvenile court’s findings, we first
consider whether the evidence supports the factual findings and then consider
whether those findings support the juvenile court’s judgment. In re S.A., 15
N.E.3d at 607. We will not set aside the findings or judgment unless they are
clearly erroneous. Id. Findings are clearly erroneous when there are no facts in
the record to support them; a judgment is clearly erroneous if it relies on an
incorrect legal standard. Id. We give substantial deference to the court’s
findings but not to its conclusions. Id. Any issues not covered by the findings
are reviewed under a general judgment standard and the judgment may be
affirmed if it can be sustained on any basis supported by the evidence. Id.
II. Adjudication as a CHINS
A. Subsequent Events
[11] Before we address the merits of Father’s appeal, we note it appears from our
review of the lower courts’ records that several events have occurred since this
2
Unlike a dispositional order, see Ind. Code § 31-34-19-10, a fact-finding order is not required to include
formal findings, In re S.D., 2 N.E.3d 1283, 1288 (Ind. 2014).
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appeal was initiated. The Chronological Case Summary indicates a review
hearing in the CHINS case was set for February 2, 2017.3 See Appellant’s App.,
Vol. II at 5. At the hearing, on Father’s motion and with no objection from
DCS, the juvenile court ordered the parties discharged in N.C.’s case. 4 On
February 23, 2017, Mother wrote to the Circuit Court informing the judge of
the resolution of N.C.’s CHINS case and asking for a hearing to modify the
existing temporary order granting custody of N.C. to Father by returning
custody to her. On March 1, 2017, Father filed a petition for modification of
custody with the Circuit Court requesting permanent custody of N.C. A
custody modification hearing is currently scheduled in the Circuit Court for
June 1, 2017.
[12] Although at first blush these events may seem to make the issues raised by
Father in this appeal moot, we conclude a decision on the merits is warranted
and necessary. A CHINS adjudication, even one as short-lived as this one, can
have serious consequences for families. Indiana Code section 31-35-2-
4(b)(2)(B)(iii) provides that two separate CHINS adjudications can be the basis
for a petition to terminate parental rights. Although N.C. is not currently a
CHINS, it is still on record that he has been adjudicated a CHINS and if that
adjudication was erroneous, it must be corrected to protect the integrity of the
3
Review hearings are required to be held at least every six months. Ind. Code § 31-34-21-2.
4
The CHINS cases regarding N.C.’s siblings were continued and the dispositional order as to those children
remained in effect after the review hearing.
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family going forward. See In re K.D., 962 N.E.2d 1249, 1259 (Ind. 2012) (noting
“an abundance of caution should be used when interfering with the makeup of
a family and entering a legal world that could end up in a separate proceeding
with parental rights being terminated”).
B. Need for Coercive Intervention of the Court
[13] With that said, we turn to the first issue raised by Father. Father contends the
juvenile court erred in adjudicating N.C. a CHINS because there was no
evidence N.C.’s needs would go unmet in the absence of the coercive
intervention of the court. The purpose of a CHINS inquiry is to determine
whether a child’s circumstances require services that are unlikely to be provided
without the intervention of the court, and thus, the focus of a CHINS
adjudication is on the condition of the child alone, not on the culpability of one
or both parents. In re N.E., 919 N.E.2d 102, 105-06 (Ind. 2010). Nonetheless,
“[n]ot every endangered child is a child in need of services, permitting the
State’s parens patriae intrusion into the ordinarily private sphere of the family.”
In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). Rather, a CHINS adjudication
under section 31-34-1-1 requires proof of three basic elements: the parent’s
actions or inactions have seriously endangered the child; the child’s need are
unmet; and “perhaps most critically,” those needs are unlikely to be met unless
the State intervenes. Id. It is the last element that guards against unwarranted
State interference in family life. Id. State intrusion is warranted only when
parents lack the ability to provide for their children. Id. Moreover, when
determining whether a child is a CHINS under section 31-34-1-1, and
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particularly when determining whether the coercive intervention of the court is
necessary, the juvenile court “should consider the family’s condition not just
when the case was filed, but also when it is heard.” Id. at 1290.
[14] The petition alleging N.C. was a CHINS made eight factual allegations. Five
concerned Mother’s conduct, two concerned the fathers of N.C.’s siblings, and
one concerned Father, alleging only that he is the noncustodial father of N.C.
The only reference to Father in the juvenile court’s findings following the fact-
finding hearing was to reiterate that Father is the noncustodial father of N.C.,
despite testimony at the fact-finding hearing establishing Father had temporary
custody of N.C. under a court order, DCS had visited the placement and found
it appropriate, and there were no allegations of neglect against Father. None of
this was mentioned in the juvenile court’s order that concluded the “ongoing
domestic violence and substance abuse in the family home” necessitated the
coercive intervention of the court. Appellant’s App., Vol. II at 34.
[15] Although Father had in fact petitioned the Circuit Court for custody of N.C.
even before DCS filed its CHINS petition, the evidence supports the conclusion
the coercive intervention of the court was necessary early in the CHINS
proceedings because Father did not obtain a temporary custody order until two
months after the CHINS petition was filed. See In re D.J., 68 N.E.3d 574, 581
(Ind. 2017) (noting the trial court’s fact-finding order included findings “that
amply support its conclusion that Parents required coercive intervention early in
the CHINS process). Nonetheless, by the time the fact-finding hearing
occurred, Father had obtained a custody order, had custody of N.C. for two
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months, and DCS had no concerns about him or about N.C.’s placement with
him. The domestic violence and substance abuse referenced by the juvenile
court’s fact-finding order had occurred in Mother’s home and N.C. was no
longer in that home. In other words, whatever neglect N.C. experienced due to
Mother’s issues at the outset of this case was rectified by being placed in
Father’s home by the time of the fact-finding hearing. Neither the trial court’s
findings nor the evidence in the record support the juvenile court’s conclusion
that its intervention was required at the time of the fact-finding hearing in order to
protect N.C.’s health and safety. See id. (holding DCS did not prove the ongoing
coercive intervention of the court was necessary where by the time of the fact-
finding hearing, parents had cooperated with DCS and satisfactorily completed
all services and met their goals); In re S.A., 15 N.E.3d at 611-12 (holding trial
court erred in adjudicating child to be a CHINS because father had resolved the
allegations of the CHINS petition by the time of the fact-finding hearing and
there was no basis in the record to conclude that if father needed help in the
future he would be unlikely to obtain it without the court’s intervention).5
5
DCS concedes S.A. “is substantially similar to the current case[,]” but nonetheless asserts “coercive
intervention was still necessary to protect [N.C.] from returning to Mother’s care” without meaningfully
distinguishing this case from S.A. Brief of Appellee at 18. In fact, this case is even more compelling than
S.A., in that the concern in S.A. was that the father—who was not married to the child’s mother and who had
been in the military for the first two years of the child’s life, including at the time the CHINS petition was
filed—had not been involved as a parent (legally, emotionally, or financially) prior to the CHINS proceeding
and lacked parenting skills. 15 N.E.3d at 610-12. Neither of those issues are of concern here. And in S.A.,
despite the evidence regarding the father’s non-involvement up to the time of the CHINS petition, our court
nonetheless reversed the CHINS adjudication because of the strides the father had made after his discharge
and before the fact-finding hearing. Id. at 612.
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[16] The State notes Father does not challenge the element that N.C. had a “CHINS
condition” and has therefore waived any challenge to this element of a CHINS
finding. Brief of Appellee at 11. Citing Matter of M.R., 452 N.E.2d 1085, 1089
(Ind. Ct. App. 1983), DCS contends “once the juvenile court concludes that a
parent’s actions or omissions have created a CHINS condition (i.e. are
detrimental to a child’s wellbeing) the court may infer that such actions and
condition would continue in the absence of court intervention.” Brief of
Appellee at 19. That position, however, fails to acknowledge our more recent
supreme court precedent clearly treating endangerment—or as DCS phrases it,
a “CHINS condition”—and coercive intervention as two separate elements to
be proved in a CHINS proceeding. See In re S.D., 2 N.E.3d at 1287. Therefore,
even accepting as true that Father has waived consideration of whether N.C.
had a CHINS condition, DCS is not relieved of its burden to prove by a
preponderance of the evidence that the coercive intervention of the court was
required.
[17] DCS also posits the juvenile court’s adjudication of N.C. as a CHINS was
appropriate because Father had only a temporary custody order and coercive
intervention of the court was necessary because “there remained a possibility
that [N.C.] could be returned to Mother’s care.” Brief of Appellee at 20. In re
S.A. addressed a similar issue: in that case, the child, who had been in the sole
care of his mother, was adjudicated a CHINS based on the mother’s drug use
and placed in the care of his maternal grandmother. The father, who was in the
military and had not been involved with the child, subsequently established
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paternity and petitioned for a modification of custody. The father requested the
juvenile court hear evidence on the custody issue so the child could be released
to him if no basis was found for continuing the CHINS, but the juvenile court
declined and continued the child’s CHINS status due to concerns about the
father’s fitness. On appeal, this court reversed the CHINS adjudication. 15
N.E.3d at 612. DCS petitioned for rehearing, arguing in part that because the
mother had custody of the child and the father had no custody order in his
favor, the reversal “effectively sent Child back to a Mother who admitted she
needed help with her substance abuse [and] left no room for the CHINS court
to protect Child further . . . .” In re S.A., 27 N.E.3d 287, 291 (Ind. Ct. App.
2015) (opinion on reh’g). We disagreed in part because we presumed a hearing
would be held on the father’s custody petition in due course if it had not
already. Id. at 292. Here, Father actually did have a custody order in his favor
at the fact-finding hearing, albeit temporary; nonetheless, N.C. was not going to
be returned to Mother’s care without Mother first obtaining a court order
allowing that. Moreover, when the juvenile court discharged the parties in
N.C.’s case at the review hearing—without objection by DCS—the exact same
custody situation was in place: Father still had only temporary custody of N.C.
pursuant to the Circuit Court order. Obviously, neither DCS nor the juvenile
court considered this custody arrangement of sufficient concern to continue
N.C. as a CHINS at that time, and there is no discernable reason why it should
have been treated differently at the fact-finding hearing.
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[18] Based on the foregoing, we conclude DCS failed to prove by a preponderance
of the evidence that the coercive intervention of the court was necessary to
ensure N.C.’s well-being.6
6
Although we need not address this issue given our resolution regarding the fact-finding order, Father also
challenges the juvenile court’s dispositional order for failing to meet the requirements of Indiana Code
section 31-34-19-6 that the disposition be one that least interfere with family autonomy, is least disruptive of
family life, and imposes the least restraint on the freedom of parent and child. Specifically, Father contends
settling his pending request for modification of custody would have been a preferable alternative to
continuing N.C. a CHINS and ordering Father’s participation in DCS services. DCS interprets this as a
request that the juvenile court should have modified custody in lieu of a CHINS finding. Noting a CHINS
fact-finding order is not a final appealable order, DCS argues the juvenile court did not have authority to
modify custody unless and until it adjudicated N.C. a CHINS and entered a dispositional order.
First, we note that Father’s petition for modification of custody was pending in the Circuit Court, which has
concurrent jurisdiction with the juvenile court for the purpose of modifying custody. See generally Ind. Code
ch. 31-30-1. Had the juvenile court discharged N.C. without first adjudicating him a CHINS, the custody
question could have been answered in the Circuit Court with due haste. Instead, the juvenile court’s
adjudication of N.C. as a CHINS despite no evidence coercive intervention of the court was necessary to
ensure N.C.’s care prolonged the resolution of N.C.’s permanent custody, even in the absence of an appeal.
Second, DCS is correct that a long line of cases has declared the dispositional order the final judgment in a
CHINS case. See, e.g., In re J.L.V., 667 N.E.2d 186, 188 (Ind. Ct. App. 1996). Father in fact did not file his
notice of appeal until after the trial court issued its dispositional order. By the time this case was fully briefed
(and we note with appreciation this appeal moved as quickly as an appeal can), the CHINS case was closed,
but Father and N.C. had nonetheless been subject to State intervention for nine months. We note, however,
that one week after N.C. was discharged by the juvenile court, our supreme court decided the case of In re
D.J., 68 N.E.3d 574. In that case, the parties to a CHINS case filed a notice of appeal from an interlocutory
fact-finding order and the court of appeals dismissed the appeal for lack of jurisdiction because there was not
yet a final order from which to appeal. An earlier supreme court case had declared a belated notice of appeal
forfeits the right to appeal but does not affect the appellate court’s jurisdiction if it chooses to revive that right.
In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014). Akin to that decision, the D.J. court held that a
premature notice of appeal also does not affect the court’s jurisdiction. 68 N.E.3d at 578-80. Accordingly, the
court decided the merits of the appeal and reversed the trial court’s CHINS determination. Id. at 581. In
general, it is unclear how this discretionary rule of reviewing “premature” appeals will be harmonized with
Appellate Rule 14, which sets forth a specific procedure for seeking review of an interlocutory order, or how
it will work in practice. Notwithstanding any broader implications of D.J. for the courts of this state,
however, had Father been able to take advantage of the rule announced in D.J. to file his notice of appeal
without waiting for the formality of a dispositional order, this appeal could have been resolved even sooner.
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Conclusion
[19] Because DCS failed to prove each element required by statute to show a child is
a CHINS, the juvenile court erred in adjudicating N.C.’s a CHINS. We reverse
and remand to the juvenile court to vacate the CHINS finding as to N.C.
[20] Reversed and remanded.
Kirsch, J., and Barnes, J., concur.
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