                                                             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.




Court of Appeals of Indiana | Opinion 53A01-1610-JC-2479 | March 21, 2017               Page 1 of 17
                                 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


      Court of Appeals of Indiana | Opinion 53A01-1610-JC-2479 | March 21, 2017   Page 2 of 17
      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.

      Court of Appeals of Indiana | Opinion 53A01-1610-JC-2479 | March 21, 2017                       Page 3 of 17
      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




      Court of Appeals of Indiana | Opinion 53A01-1610-JC-2479 | March 21, 2017   Page 4 of 17
      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

      Court of Appeals of Indiana | Opinion 53A01-1610-JC-2479 | March 21, 2017   Page 5 of 17
              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,

      Court of Appeals of Indiana | Opinion 53A01-1610-JC-2479 | March 21, 2017    Page 6 of 17
        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


Court of Appeals of Indiana | Opinion 53A01-1610-JC-2479 | March 21, 2017    Page 7 of 17
      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


      Court of Appeals of Indiana | Opinion 53A01-1610-JC-2479 | March 21, 2017    Page 8 of 17
       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).

       Court of Appeals of Indiana | Opinion 53A01-1610-JC-2479 | March 21, 2017                            Page 9 of 17
       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.

       Court of Appeals of Indiana | Opinion 53A01-1610-JC-2479 | March 21, 2017                        Page 10 of 17
       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

       Court of Appeals of Indiana | Opinion 53A01-1610-JC-2479 | March 21, 2017   Page 11 of 17
       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

       Court of Appeals of Indiana | Opinion 53A01-1610-JC-2479 | March 21, 2017   Page 12 of 17
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.

Court of Appeals of Indiana | Opinion 53A01-1610-JC-2479 | March 21, 2017                       Page 13 of 17
[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


       Court of Appeals of Indiana | Opinion 53A01-1610-JC-2479 | March 21, 2017   Page 14 of 17
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.




Court of Appeals of Indiana | Opinion 53A01-1610-JC-2479 | March 21, 2017   Page 15 of 17
[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.

       Court of Appeals of Indiana | Opinion 53A01-1610-JC-2479 | March 21, 2017                               Page 16 of 17
                                                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.




       Court of Appeals of Indiana | Opinion 53A01-1610-JC-2479 | March 21, 2017   Page 17 of 17
