                                                             FILED
                                                        Mar 30 2017, 6:44 am

                                                             CLERK
                                                         Indiana Supreme Court
                                                            Court of Appeals
                                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Robert J. Henke
                                                          James D. Boyer
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of D.P. (Minor                              March 30, 2017
Child),                                                   Court of Appeals Case No.
                                                          49A02-1610-JC-2367
         and,                                             Appeal from the Marion Superior
                                                          Court
M.P. (Father),                                            The Honorable Marilyn A.
                                                          Moores, Judge
Appellant-Respondent,                                     The Honorable Diana Burleson,
                                                          Magistrate
        v.
                                                          Trial Court Cause No.
                                                          49D09-1603-JC-1071
The Indiana Department of
Child Services,

Appellee-Petitioner.




Barnes, Judge.


Court of Appeals of Indiana | Opinion 49A02-1610-JC-2367| March 30, 2017                Page 1 of 21
                                              Case Summary
[1]   M.P. (“Father”) appeals the trial court’s finding that his child, D.P., is a child in

      need of services (“CHINS”). We reverse.


                                                      Issue
[2]   The restated issue before us is whether there is sufficient evidence to support the

      determination that D.P. is a CHINS.


                                                      Facts
[3]   On March 28, 2016, the Marion County Office of the Department of Child

      Services (“DCS”) filed a petition alleging that D.P., who was born in 2007, was

      a CHINS. The petition alleged that, on March 11, 2016, Father was taken to a

      hospital because he was acting “bizarrely,” was found to be on multiple drugs,

      and that Father has a history of substance abuse. App. p. 22. The petition

      further alleged that D.P. had missed twenty-three days of school and was

      suffering from educational neglect.


[4]   On April 14, 2016, the trial court held a pre-trial hearing. Subsequently, the

      trial court entered an order stating in part that Father’s attorney “reports father

      was engaged in a methadone program in the past. [Counsel] states that father

      was taking opiates as he is no longer in a methadone program, but mother did

      not know and was not providing the opiates.” Id. at 50. D.P. remained in

      Mother’s care and custody, but Father was ordered to leave the home.




      Court of Appeals of Indiana | Opinion 49A02-1610-JC-2367| March 30, 2017   Page 2 of 21
[5]   The trial court conducted a fact-finding hearing on August 29, 2016. Father did

      not appear at the hearing. At the outset of the hearing, counsel for Mother

      stated, “My client is going to agree that her child is in need of services because

      they’re [sic] pending domestic violence charges that were filed against father.”

      Tr. p. 5. A family case manager, Kyla Thomas, testified for DCS that Father

      had been referred for services, including twice for a substance abuse assessment,

      but that he had only participated in services “until July.” Id. at 9. Thomas then

      stated that she had not spoken to Father since April 2016 and that, “I learned

      today that he’s incarcerated.” Id. Father’s counsel objected to this statement.

      Thomas then was asked how she knew that Father was incarcerated, and she

      said, “the Marion County website,” without elaboration. Id. at 10. Father

      again objected on hearsay grounds, which the trial court overruled.


[6]   Thomas also testified that DCS had “concerns with [Father’s] repeat substance

      abuse . . . .” Id. at 11. Father objected to this statement on hearsay grounds

      because it was based on third-party reports, to which DCS’s attorney said, “I

      got nothing for that one.” Id. The trial court then asked what Thomas’s basis

      for her testimony was, and she said, “The last screens I have for [Father] are

      positive.” Id. The trial court sustained Father’s renewed objection to that

      statement as hearsay and no more evidence was presented on Father’s drug use.


[7]   Thomas then testified that DCS had concerns about domestic violence in the

      family. Father again objected to this testimony on hearsay grounds. The

      following colloquy then ensued:



      Court of Appeals of Indiana | Opinion 49A02-1610-JC-2367| March 30, 2017   Page 3 of 21
        [DCS]: Judge, I have a cause number for you for the domestic
        violence case. There is a no-contact order with—listing [Mother]
        as the victim.


        [Father’s attorney]: Judge, if I can follow up you know I don't
        believe that that makes anything not hearsay unless this, unless
        DCS has certified copies of something you know or . . .


        [DCS]: Rule 201 allows you to take judicial notice of records of
        the Court.


        [Court]: And have you had conversations with either of the, the
        parents about the domestic violence.


        [Thomas]: When I, I asked about the incarceration and mom
        didn’t—she just disclosed that it was stupidity that got him
        arrested, but didn’t mention anything about the incident that
        occurred and yesterday indicated that she wants to reunify and
        have the family back together.


        [Court]: Okay.


        [Thomas]: Still not know anything about it.


        [Court]: Alright. What is the cause number that you have?


        [DCS]: 49G02-1608-F5-031060.


                                              *****


        [Court]: Okay. Alright, I’ll-I’ll overrule the objection, but I
        guess it’s sustain in a sense that I’m going to allow the cause
        number to be put into the record and I will take judicial notice

Court of Appeals of Indiana | Opinion 49A02-1610-JC-2367| March 30, 2017   Page 4 of 21
                 that it is felony case out of Court G2 and that’s in Marion
                 County?


                 [DCS]: Yes.


      Id. at 12-13.


[8]   Thomas also testified that she had no firsthand knowledge of why Father could

      not be in the family home. She further related Mother’s statement to her that

      Mother “doesn’t know when [Father]’s under the influence and he’s reported

      that he’ll be an addict for the rest of his life,” which concerned Thomas. Id. at

      16. After Thomas’s testimony, both DCS and Father rested. The trial court

      then orally announced that D.P. was a CHINS. It entered a dispositional order

      as to Mother shortly thereafter and scheduled a dispositional hearing for Father

      for September 22, 2016. At that hearing, Father again did not appear. The trial

      court asked his attorney whether he was “still incarcerated” and the attorney

      confirmed that he was, “pending trial.” Id. at 24. The trial court then

      proceeded to disposition as to Father, ordering him to complete a “Father

      Engagement Program.” App. p. 86. Father now appeals. 1


                                                   Analysis
[9]   The dispositive issue we address is whether there is sufficient evidence to

      support the CHINS determination. When reviewing the sufficiency of the




      1
          Mother does not join in the appeal.


      Court of Appeals of Indiana | Opinion 49A02-1610-JC-2367| March 30, 2017   Page 5 of 21
       evidence for a trial court’s CHINS determination, “‘[w]e neither reweigh the

       evidence nor judge the credibility of the witnesses.’” In re S.D., 2 N.E.3d 1283,

       1286 (Ind. 2014) (quoting In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012)). We

       must instead consider only that evidence supporting the trial court’s decision

       and any reasonable inferences drawn therefrom. Id. at 1287.


[10]   The trial court here entered limited sua sponte findings and conclusions

       supporting its CHINS finding, although such findings and conclusions are not

       statutorily required. See id. “As to the issues covered by the findings, we apply

       the two-tiered standard of whether the evidence supports the findings, and

       whether the findings support the judgment.” Id. We review any remaining

       issues not covered by the findings under the general judgment standard,

       meaning we will affirm a judgment if it can be sustained on any legal theory

       supported by the evidence. Id. Also, as a general rule appellate courts grant

       latitude and deference to trial courts in family law matters. Steele-Giri v. Steele,

       51 N.E.3d 119, 124 (Ind. 2016). This deference recognizes a trial court’s

       unique ability to see the witnesses, observe their demeanor, and scrutinize their

       testimony, as opposed to this court’s only being able to review a cold transcript

       of the record. Id.


[11]   Under Indiana Code Section 31-34-1-1, 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

       Court of Appeals of Indiana | Opinion 49A02-1610-JC-2367| March 30, 2017    Page 6 of 21
                 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.


       DCS did not allege any other statutory basis for finding D.P. to be a CHINS. 2

       DCS bears the burden of proving by a preponderance of the evidence that a

       child is a CHINS. In re S.A., 15 N.E.3d 602, 607 (Ind. Ct. App. 2014), trans.

       denied.


[12]   A CHINS proceeding focuses on the best interests of the children, not the “guilt

       or innocence” of either parent. In re N.E., 919 N.E.2d 102, 106 (Ind. 2010).

       The purposes of a CHINS case are to help families in crisis and to protect

       children, not punish parents. In re S.D., 2 N.E.3d at 1285. Governmental

       intrusion into a family’s life is reserved only for families who cannot meet a

       child’s needs without coercion—“not merely those who have difficulty doing

       so.” Id. It is not enough for DCS to prove that one or the other of a child’s

       parents suffers from shortcomings; rather, there must be evidence that the




       2
         Another ground for finding a child to be a CHINS include if an act or omission of a parent or guardian
       seriously endangered the child’s mental or physical health. See Ind. Code § 31-34-1-2. This would seem to
       more squarely fit an allegation that a child is harmed by domestic violence in the family household.

       Court of Appeals of Indiana | Opinion 49A02-1610-JC-2367| March 30, 2017                       Page 7 of 21
       parents are unlikely to meet a child’s needs absent coercive court intervention.

       In re S.A., 15 N.E.3d at 611-12. And, evidence that a child is endangered is not

       by itself enough to warrant a CHINS finding and the State’s parens patriae

       intrusion into family life. In re S.D., 2 N.E.3d at 1287. On the other hand, a

       court need not wait until a tragedy occurs before entering a CHINS finding. In

       re R.S., 987 N.E.2d 155, 158 (Ind. Ct. App. 2013).


[13]   Father first contends the trial court erred in taking judicial notice that he was

       incarcerated on the date of the fact-finding hearing. At the hearing, DCS

       attempted to introduce evidence of Father’s incarceration through Thomas’s

       reference to having learned of it from “the Marion County website,” without

       elaboration. Tr. at 10. On appeal, DCS makes no attempt to argue that this

       testimony was sufficient to establish judicial notice of Father’s incarceration.

       Rather, it contends there was other evidence in the record from which Father’s

       incarceration could be inferred and also notes that at the dispositional hearing

       Father’s attorney seemed to concede that Father was “still incarcerated.” Id. at

       24.


[14]   Even if we were to assume there is sufficient evidence in the record that Father

       was incarcerated at the time of the fact-finding hearing, aside from Thomas’s

       reference to the “Marion County website,” we still would conclude there is

       insufficient evidence to support the CHINS finding. DCS admits in its brief,

       “the record in this case was limited.” Appellee’s Br. P. 14. Indeed it was, and

       DCS appeared to try this case almost entirely upon Mother’s admission and

       judicial notice.

       Court of Appeals of Indiana | Opinion 49A02-1610-JC-2367| March 30, 2017   Page 8 of 21
[15]   With respect to Mother’s admission, we note the following. It is true that one

       parent’s admission that his or her child is a CHINS may be sufficient to support

       a CHINS adjudication; it is not necessary to find that a child is a CHINS with

       respect to both parents. In re N.E., 919 N.E.2d at 106. “A CHINS adjudication

       focuses on the condition of the child. . . . [T]he acts or omissions of one parent

       can cause a condition that creates the need for court intervention.” Id. at 105.

       “Indeed, to adjudicate culpability on the part of each individual parent in a

       CHINS proceeding would be at variance with the purpose of the CHINS

       inquiry: determining whether a child’s circumstances necessitate services that

       are unlikely to be provided without the coercive intervention of the court.” Id.

       at 106. The specific facts of N.E. were that, “Mother failed to protect N.E. and

       her siblings from ongoing domestic violence between herself and the alleged

       father of her youngest child and that there had been several incidents of

       domestic violence against Mother in the presence of her children.” Id. at 106.

       The appellant in N.E. was the father of another one of the mother’s children,

       and was not himself accused of any domestic violence. Id. Mother admitted to

       the CHINS allegation that she failed to protect the children from ongoing

       domestic violence. Id. Our supreme court held, “In these circumstances, it was

       not necessary for the CHINS petition to make any allegations with respect to

       Father.” Id. However, the court held there were insufficient findings to support

       the trial court’s dispositional decision not to place the father-appellant’s child

       with him and reversed the dispositional order on that basis. Id. at 108.




       Court of Appeals of Indiana | Opinion 49A02-1610-JC-2367| March 30, 2017   Page 9 of 21
[16]   Two years after In re N.E., our supreme court revisited the question of finding a

       child to be a CHINS based on only one parent’s admission in In re K.D. In that

       case, the mother purported to admit that her children were CHINS because the

       appellant (the children’s stepfather) was an untreated sex offender and because

       the mother nonetheless continued to allow the stepfather to live in the home;

       the stepfather denied the allegations. The court in K.D. noted that, unlike in

       N.E., it was necessary to prove allegations against both the mother and the

       stepfather in order to support a CHINS finding. In re K.D., 962 N.E.2d at 1256.

       The court held that, in the case before it, the trial court erred and violated the

       stepfather’s due process rights by failing to hold a fact-finding before finding the

       children to be CHINS. Id. at 1257-58. “Situations can exist where an

       admission by a parent would be incapable of providing a factual basis for the

       CHINS adjudication.” Id. at 1256. The court further clarified:


               In re N.E. does not stand for the proposition that anytime a parent
               makes an admission that the child is a CHINS, such adjudication
               automatically follows. Each circumstance when a parent admits
               the allegations set forth in the DCS petition is case specific. Each
               parent has the choice to admit the child is in need of services.


       Id. Furthermore:


               [A]n 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.
               We hold that when one parent wishes to admit and another
               parent wishes to deny the child is in need of services, the trial
               court shall conduct a fact-finding hearing as to the entire matter.


       Court of Appeals of Indiana | Opinion 49A02-1610-JC-2367| March 30, 2017   Page 10 of 21
       Id. at 1259. The court also held that holding a contested dispositional hearing

       on behalf of stepfather after finding the children were CHINS was insufficient

       to satisfy due process concerns and the CHINS statutes. Id.


[17]   The necessary takeaway after K.D. is that, although one parent’s admission may

       be sufficient to support a CHINS adjudication, it is not automatically sufficient.

       Otherwise there would seem to be little point in offering a hearing to the non-

       admitting parent. It additionally is clear from K.D. that regular rules of

       procedure apply to such a fact-finding hearing, including that DCS continues to

       bear the burden of proving the children are CHINS.


[18]   Here, Mother admitted to D.P. being a CHINS on the morning of the fact-

       finding hearing, apparently based on a conversation she had with Thomas the

       day before. There is no indication Father was previously aware that Mother

       was going to admit D.P. was a CHINS. The trial court, evidently aware of

       K.D.’s holding, did not immediately accept Mother’s admission but took it

       under advisement pending completion of the fact-finding hearing. Further,

       Mother’s admission accused primarily Father, not her or a third party, of

       conduct that was endangering D.P. It is true that one parent’s failure to protect

       children from being exposed to domestic violence may support a CHINS

       finding. See In re N.E., 919 N.E.2d at 108. But unlike the mother in In re N.E.,

       Mother’s admission here was based on Father’s conduct, not a third party’s.

       Under the circumstances, that admission was not binding upon Father or

       conclusive evidence that D.P. was, in fact, a CHINS.



       Court of Appeals of Indiana | Opinion 49A02-1610-JC-2367| March 30, 2017   Page 11 of 21
[19]   During the fact-finding hearing, DCS’s attempts to present evidence of Father’s

       continued drug use were objected to, and the trial court sustained those

       objections. Thomas did testify without objection that Mother told her that

       Father had told Mother he would “be an addict for the rest of his life” and that

       Mother “doesn’t know when he’s under the influence . . . .” Tr. at 16. Father’s

       comment about being a life-long addict appears to us to be standard therapy-

       speak for persons battling substance abuse. Mother’s lack of knowledge about

       when or whether Father was under the influence does not establish that Father

       recently had been under the influence.


[20]   In the CHINS order, the trial court stated that it was taking “judicial notice” of

       preliminary reports and other filings during the course of the proceedings. App.

       p. 74. Some of the reports referenced Father’s drug use. However, we believe it

       would stretch the concept of judicial notice too far to allow the contents of the

       previous filings in this case to be accepted as substantive evidence.


[21]   Indiana Evidence Rule 201 provides in part:


               (a) Kinds of Facts That May Be Judicially Noticed. The court
               may judicially notice:


               (1) a fact that:


                        (A) is not subject to reasonable dispute because it is
                        generally known within the trial court's territorial
                        jurisdiction, or




       Court of Appeals of Indiana | Opinion 49A02-1610-JC-2367| March 30, 2017   Page 12 of 21
                        (B) can be accurately and readily determined from sources
                        whose accuracy cannot reasonably be questioned.


               (2) the existence of:


                        (A) published regulations of governmental agencies;


                        (B) ordinances of municipalities; or


                        (C) records of a court of this state.


               (b) Kinds of Laws That May Be Judicially Noticed. A court
               may judicially notice a law, which includes:


               (1) the decisional, constitutional, and public statutory law;


               (2) rules of court;


               (3) published regulations of governmental agencies;


               (4) codified ordinances of municipalities;


               (5) records of a court of this state; and


               (6) laws of other governmental subdivisions of the United States
               or any state, territory or other jurisdiction of the United States.


[22]   With respect to “court records,” the rule states that the fact of a record’s

       existence may be judicially noticed under subsection (a), or law contained

       within such records may be judicially noticed under subsection (b). It does not


       Court of Appeals of Indiana | Opinion 49A02-1610-JC-2367| March 30, 2017   Page 13 of 21
       provide for notice of all facts contained within a court record. Even if court

       records may be judicially noticed, “facts recited within the pleadings and filings

       that are not capable of ready and accurate determination are not suitable for

       judicial notice.” Brown v. Jones, 804 N.E.2d 1197, 1202 (Ind. Ct. App. 2004),

       trans. denied.3 “Unless principles of claim preclusion apply, judicial notice

       should be limited to the fact of the record’s existence, rather than to any facts

       found or alleged within the record of another case.” Id. Applying these

       principles here, taking notice of substantive facts contained in preliminary

       filings in this case would exceed the proper bounds of judicial notice principles.

       Indeed, if a trial court hearing a CHINS matter could simply rely upon the facts

       alleged in such preliminary filings, it would seem to obviate the need for a fact-

       finding hearing. DCS did not present any independent, admissible evidence at

       the fact-finding hearing regarding Father’s drug use.4


[23]   DCS directs us to the following passage from a decision of our supreme court:


                “[B]ecause of the doctrine of Parens Patriae and the need to focus
                on the best interest of the child, the trial judge, who is the fact
                finder, is required to be an attentive and involved participant in
                the process. While he must depend upon the litigants to present
                the evidence to establish the particular elements or defenses in
                the termination case, he is not limited to their presentations, and



       3
        Brown was decided before Indiana Evidence Rule 201 was amended to allow courts to take judicial notice of
       any state court records; it addressed a trial court taking judicial notice of its own records in the very case
       being tried. However, we believe its general observations regarding the proper extent of judicial notice of a
       court record, when such notice is permitted, are still valid.
       4
        DCS also made no attempt to present any evidence to support its original allegation that D.P. was subject to
       educational neglect because of multiple school absences.

       Court of Appeals of Indiana | Opinion 49A02-1610-JC-2367| March 30, 2017                        Page 14 of 21
               as in any custody case, he may require more than they present
               and direct further investigation, evaluations or expert testimony
               to assure him that the interests of the child and the respective
               parties are properly represented. Under the aegis of the court, the
               role of the lawyer, while important, does not carry the deleterious
               impact of ineffectiveness that may occur in criminal
               proceedings.”


       Baker v. Marion Cty. Office of Family & Children, 810 N.E.2d 1035, 1041 (Ind.

       2004) (quoting In re Adoption of T.M.F., 392 Pa.Super. 598, 573 A.2d 1035,

       1042-43 (1990)). Baker addressed the proper standard to apply when addressing

       a claim that a parent received ineffective assistance of counsel in a termination

       proceeding and highlighted the important and active role that trial courts have

       in matters involving children, such as by directing further investigation if it is

       not satisfied with what the parties have presented. To the extent DCS suggests

       Baker permits trial courts to consider inadmissible evidence or evidence outside

       the record in deciding a case involving children, we disagree.


[24]   This brings us to the question of domestic violence. Again, DCS relied almost

       entirely upon judicial notice to present evidence of domestic violence to the trial

       court. No documentation was presented to the court regarding charges against

       Father. It would have been preferable to provide actual documents, but it was

       not fatal to the trial court’s taking judicial notice of the charges against Father.

       See Horton v. State, 51 N.E.3d 1154, 1161-62 (Ind. 2016). “[B]ecause Indiana’s

       implementation of a unified statewide electronic case management system

       (CMS) is well underway, many court records will soon likewise be at the

       fingertips of any court, litigant, or member of the general public.” Id. We have

       Court of Appeals of Indiana | Opinion 49A02-1610-JC-2367| March 30, 2017   Page 15 of 21
       determined, by searching the case number provided by DCS on the Odyssey

       case management system available to Indiana courts, that Father in fact was

       charged, on August 10, 2016, with one count of Class B misdemeanor battery

       and one count of domestic battery against Mother, elevated from a Class A

       misdemeanor to a Level 5 felony because of a 2013 domestic violence

       conviction for Father; Mother was the victim in the previous offense as well.


[25]   Beyond the fact that Father was charged, however, we believe it would be

       inappropriate to delve into such matters as the content of the probable cause

       affidavit filed in the criminal case. That would cross the line into alleged facts

       that would not be capable of being readily determined as accurate. The trial

       court properly seemed to take the same approach to the charges against Father.

       Thus, we are left with no detailed information about the alleged battery

       incident. All we properly have before us is the fact that Father was charged,

       and Thomas relating Mother’s statement that “it was stupidity that got him

       arrested . . . .” Tr. p. 12.


[26]   We are cognizant that, “a child’s exposure to domestic violence can support a

       CHINS finding.” K.B. v. Indiana Dep’t of Child Servs., 24 N.E.3d 997, 1003 (Ind.

       Ct. App. 2015). Additionally, a single incident of domestic violence in a child’s

       presence may support a CHINS finding, and it need not necessarily be

       repetitive. See id. at 1003-04. In K.B., there was evidence that the parties’

       children witnessed domestic violence and were old enough to comprehend it.

       Here, however, there was no evidence that domestic violence ever occurred in

       D.P.’s presence. Thus, even if there is sufficient evidence, by a preponderance

       Court of Appeals of Indiana | Opinion 49A02-1610-JC-2367| March 30, 2017   Page 16 of 21
       of the evidence, that Father was accused of battering Mother, there is no

       evidence as to the impact of the incident upon D.P., or whether the coercive

       intervention of the court is necessary to protect the child. Domestic violence is

       a very serious matter, but we cannot conclude that one arrest for that crime

       automatically makes the accused and alleged victim’s child a CHINS without

       any evidence as to the details of the alleged incident. 5


[27]   DCS contends, “once the juvenile court determines a child has a CHINS

       condition, the court may infer that such condition would continue in the

       absence of court intervention.” Appellee’s Br. p. 24. For this proposition, DCS

       cites Matter of M.R., 452 N.E.2d 1085, 1089 (Ind. Ct. App. 1983), which held:

       “Having concluded that Mother’s actions were detrimental to her children’s

       well-being, the trial court was entitled to believe that such conduct would

       continue in the absence of court intervention.”6 DCS contends that, once it

       presents evidence of some endangerment to a child, such as an incident of

       domestic violence between the parents, “the coercive intervention of the court is

       necessarily a legal conclusion that the court must make based upon the

       evidence before it.” Appellee’s Br. p. 25.




       5
        Under Indiana Code Section 31-34-1-3(b), a child is automatically a CHINS is he or she is living with a
       person charged with one of the expressly-listed crimes against children, such as child molestation,
       prostitution, or incest, and the coercive intervention of the court is necessary to ensure the child is receiving
       necessary care, treatment, or rehabilitation. There is no provision automatically making a child a CHINS if
       one parent is charged with domestic violence against the other parent.
       6
        DCS also cites In re C.S., 863 N.E.2d 413, 418 (Ind. Ct. App. 2007), trans. denied. We find no support in this
       case for the proposition DCS advances.

       Court of Appeals of Indiana | Opinion 49A02-1610-JC-2367| March 30, 2017                             Page 17 of 21
[28]   We believe that M.R. is no longer valid authority for the proposition that a trial

       court may infer coercive intervention is necessary once a “CHINS condition”

       has been proven. Our supreme court has clearly established that the question of

       whether coercive intervention is necessary is a separate and distinct element of

       a CHINS action that DCS must prove. See In re S.D., 2 N.E.3d at 1285, 1290.

       “Not 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.” Id. at

       1287. The element of whether coercive intervention is necessary “guards

       against unwarranted State interference in family life, reserving that intrusion for

       families ‘where parents lack the ability to provide for their children,’ not merely

       where they ‘encounter difficulty in meeting a child’s needs.’” Id. (quoting Lake

       Cnty. Div. of Family & Children Servs. v. Charlton, 631 N.E.2d 526, 528 (Ind. Ct.

       App. 1994)). In other words, S.D. supports our conclusion that the mere fact of

       Father’s domestic violence arrest is not enough by itself to establish that the

       coercive intervention of the court was necessary to protect D.P.


[29]   We are aware that DCS faces challenges with respect to heavy caseloads and

       high turnover rates among its caseworkers and attorneys. Here, though, the

       scant evidentiary record as to Father, and almost exclusive reliance on

       questionable judicial notice, is fatal to DCS’s case.


                                                  Conclusion
[30]   Despite Mother’s admission, we conclude DCS failed to meet its burden of

       proving D.P. is a CHINS in light of Father’s refusal to concede to Mother’s


       Court of Appeals of Indiana | Opinion 49A02-1610-JC-2367| March 30, 2017   Page 18 of 21
       admission and the lack of admissible evidence to support all the elements of a

       CHINS action. We reverse.


[31]   Reversed.


       Robb, J., concurs.


       Kirsch, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 49A02-1610-JC-2367| March 30, 2017   Page 19 of 21
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       In the Matter of D.P. (Minor
       Child),                                                   Court of Appeals Case No.
                                                                 49A02-1610-JC-2367
                and,

       M.P. (Father),

       Appellant-Respondent,
               v.

       The Indiana Department of
       Child Services,

       Appellee-Petitioner.




       Kirsch, Judge, dissenting.


[32]   I respectfully dissent and would affirm the trial court’s determination.


[33]   Acting under its parens patriae power, the State may interfere with parental

       autonomy when it is “necessary to protect the health and safety of children.” In

       re V. H., 967 N.E.2d 1066, 1072 (Ind. Ct. App. 2012). The purpose of the




       Court of Appeals of Indiana | Opinion 49A02-1610-JC-2367| March 30, 2017              Page 20 of 21
       CHINS statute is “to help families in crisis—to protect children, not punish

       parents.” In re S.D., 2 N.E.3d 1283, 1285 (Ind. 2014).


[34]   Father did not appear for the fact-finding hearing because he was in jail,

       awaiting trial on Domestic Battery as a Level 5 felony. The charge was

       elevated from a Class A misdemeanor because of Father’s 2013 Domestic

       Battery conviction. Mother was the victim of the domestic violence in the prior

       conviction and the complaining witness in the pending charge. In addition to

       the issues of repeated spousal abuse, Father has been referred for substance

       abuse treatment on more than one occasion.


[35]   D.P.’s family was in a crisis. The trial court appropriately acted to protect the

       child. Its CHINS adjudication is simply a determination that a child is in need

       of services and is unlikely to receive those services without the court's

       intervention; it is not a determination of parental fault. In re N.E., 912 N.E.2d

       102, 105.




       Court of Appeals of Indiana | Opinion 49A02-1610-JC-2367| March 30, 2017    Page 21 of 21
