                                                                           Apr 15 2015, 9:11 am




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      P. Jeffrey Schlesinger                                      Gregory F. Zoeller
      Merrillville, Indiana                                       Attorney General of Indiana
                                                                  Robert J. Henke
                                                                  David E. Corey
                                                                  Office of the Attorney General
                                                                  Indianapolis, Indiana



                                                   IN THE
           COURT OF APPEALS OF INDIANA

      In the matter of: L.E., et al;                              April 15, 2015
                                                                  Court of Appeals Cause No.
      G.E.                                                        45A04-1404-JC-193
      Appellant-Petitioner,                                       Appeal from the Lake Superior
                                                                  Court
              v.
                                                                  Lower Court Cause No.
                                                                  45D06-9504-JC-1521
      Indiana Department of Child                                 The Honorable Thomas P.
      Services,                                                   Stefaniak, Jr., Judge
      Appellee-Respondent.




      Pyle, Judge.


                                         Statement of the Case
[1]   G.E. appeals the juvenile court’s denial of her petition to expunge a

      substantiated report of child neglect regarding her children. She claims that she


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      presented clear and convincing evidence that she was unlikely to be a future

      perpetrator of neglect and that there was no reason to justify the retention of the

      record by the Department of Child Services (“DCS”), thus satisfying the

      requirements of INDIANA CODE § 31-33-27-5. Concluding that G.E. did not

      carry her burden of presenting clear and convincing evidence satisfying the

      statutory requirements, we affirm the juvenile court’s denial of G.E.’s

      expungement petition.


[2]   We affirm.


                                                        Issue
[3]   Whether the juvenile court erred in denying G.E.’s petition.


                                            Statement of Facts
[4]   On or about December 15, 2000, the Lake County Superior Court, juvenile

      division, entered an order terminating G.E’s parental rights to four of her

      children. In relevant part, the juvenile court concluded as follows:

              The child(ren) [have] been removed from the parent[] for [at] least six
              (6) months under a dispositional decree[] of this Court dated 7-06-95,
              Cause Number[] 49D069504JC01521.


              There is a reasonable probability that the conditions resulting in the
              removal of the [children] from the [parent’s] home will not be
              remedied in that: The [C]hildren were removed from Mother in 1995[]
              due to neglect. Mother’s home was found to be filthy and the Children
              had poor attendance in school. Mother had a history of drug abuse.
              The Case Plan for reunification included drug treatment, parenting
              classes, random drug screens, and visitation. Although Mother
              attended two drug treatment programs, Mother relapsed after both

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              programs. Mother’s visits with the Children were sporadic. Mother
              did not complete parenting classes. Mother has had very little
              involvement with the Children recently. [L.E.] had been returned to
              Mother briefly but was later removed again[] due to Mother’s relapse.
              None of the other Children were ever returned to the Mother since
              their initial removal.


              There is a reasonable probability that the continuation of the parent-
              child relationship poses a threat to the well-being of the child[ren] in
              that: for the same reasons stated above.


              It is in the best interest of the [Children] and [their] health, welfare[,]
              and future that the parent-child relationship between the child[ren] and
              the parents be forever fully and absolutely terminated.


      (App. 40).


[5]   In June of 2013, G.E. began working as a cook at Pinnacle Family Child Care

      (“Pinnacle”) in Gary. After about two months, Pinnacle informed G.E. that

      she could no longer work there because of the substantiated report of neglect

      regarding her children. Pinnacle eventually allowed G.E. to return and ensured

      that she did not have direct contact with children. See Tr. 11-12.


[6]   On November 13, 2013, G.E. filed a petition to expunge the records of her

      children in need of services (“CHINS”) case pursuant to INDIANA CODE § 31-

      33-27-5. The juvenile court held a hearing on G.E.’s petition on February 7,

      2014. The only evidence presented was G.E.’s testimony. She told the juvenile

      court that she had not used any controlled substances since 2003, that she is in

      contact with all of her children and some of her grandchildren, and that she has



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       had no further contact with the juvenile courts, nor had she committed any

       crimes.


[7]    DCS relied on the proceedings from the CHINS and termination of parental

       rights cases. The juvenile court also took judicial notice of the order

       terminating G.E.’s parental rights. The juvenile court took G.E.’s petition

       under advisement and denied her petition later the same day.


[8]    On March 10, 2014, G.E. filed a Motion to Correct Errors. The juvenile court

       denied G.E.’s motion without a hearing, and now she appeals.


                                                    Discussion
[9]    G.E. appeals the denial of her motion to correct errors regarding her petition to

       expunge the substantiated report of child neglect. She essentially claims that

       she presented clear and convincing evidence satisfying the requirements of

       INDIANA CODE § 31-33-27-5 and, because of that, the juvenile court should

       have granted her petition.


[10]   The legislature enacted the Expungement of Child Abuse or Neglect Reports

       statute in March of 2012, and this appears to be our first review of a petition

       under this statute. INDIANA CODE § 31-33-27-5 provides the following:


               (a) This section applies to information relating to substantiated
                   reports in any records of [DCS].


               (b) An individual identified as a perpetrator of child abuse or
                   neglect in a substantiated report may file a petition with a
                   court exercising juvenile jurisdiction in the county in which

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             the individual resides, requesting that the court order [DCS]
             to expunge the substantiated report and related information.


        (c) The petitioner shall:


             (1) name [DCS] as respondent in the petition; and


             (2) serve [DCS] with a copy of the petition and a summons.


        (d) The court shall hold a hearing on the petition and any
            response filed by [DCS].


        (e) In considering whether to grant the petition filed under this
            section, the court may review:


                 (1) the factors listed in IC 31-39-8-3 in relation to the
                     petitioner, if the substantiated report was the subject of
                     a juvenile court case; and


                 (2) any facts relating to the petitioner’s current status,
                     activities, employment, contacts with children, or other
                     circumstances relevant to consideration of whether the
                     petition should be granted.


        (f) The court may grant the petition if the court finds, by clear
            and convincing evidence, that :


                 (1) there is little likelihood that the petitioner will be a
                     future perpetrator of child abuse or neglect; and


                 (2) the information has insufficient current probative value
                     to justify its retention in records of the department for
                     future reference.

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       (emphasis added).


[11]   The interpretation of a statutory scheme is a question of law reserved for the

       courts. Garcia v. State, 979 N.E.2d 156 (Ind. Ct. App. 2012). When

       determining the legislature’s intent, we look at the “plain language of the statute

       and attribute the common, ordinary meaning to terms found in everyday

       speech.” Id. at 158. If the word “shall” is used, it is construed as mandatory

       language creating a statutory right to a particular outcome after certain

       conditions are met. Romine v. Gagle, 782 N.E.2d 369, 379 (Ind. Ct. App. 2003),

       trans. denied. However, the “term ‘may’ in a statute ordinarily implies a

       permissive condition and a grant of discretion.” Id. at 380. A trial court abuses

       that discretion when its decision is clearly against the logic and effect of the

       facts and circumstances before it. An–Hung Yao v. State, 975 N.E.2d 1273 (Ind.

       2012).


[12]            The clear and convincing standard is an intermediate standard of
                proof that[] lies between a preponderance of the evidence and
                beyond a reasonable doubt which is required to find [a
                defendant] guilty in criminal prosecutions. The burden of proof
                by clear and convincing evidence is not a burden of convincing
                you that the facts which are asserted are certainly true or that
                they are almost certainly true or are true beyond a reasonable
                doubt. It is, however, greater than a burden of convincing you
                that the facts are more probably true than not.


[13]   In re G.Y., 904 N.E.2d 1257, 1260, n.1 (Ind. 2009) (internal quotation marks

       and citations omitted).



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[14]   Because G.E.’s burden of proof is clear and convincing, on appeal we will not

       impose our view on whether the evidence meets this standard. See In re

       Marriage of Huss, 888 N.E.2d 1238, 1245 (Ind. 2008) (citing Guardianship of B.H.,

       770 N.E.2d 283, 288 (Ind. 2002)). Rather, we consider only the probative

       evidence and reasonable inferences supporting the trial court’s decision to

       determine whether clear and convincing evidence was presented. Id. Where, as

       done here, the juvenile court enters a general order, “on appellate review the

       trial court’s judgment will be affirmed if sustainable on any theory or basis

       found in the record.” J.M. v. Review Bd. Of Indiana Dept. of Workforce

       Development, 975 N.E.2d 1283, 1289 (Ind. 2012).


[15]   Here, the only evidence presented was G.E.’s testimony that she had not used

       any controlled substances since 2003, that she was is in contact with all of her

       children and some of her grandchildren, and that she had not had any further

       contact with the juvenile courts or committed any crimes. Because G.E.’s

       burden of proof is clear and convincing evidence, and that burden is greater

       than a preponderance of the evidence, it was not unreasonable for the juvenile

       court to deny her petition where the only evidence presented was her testimony.

       See, e.g., Petition of Meyer, 471 N.E.2d 718, 721 (Ind. Ct. App. 1984) (clear and

       convincing standard not met where Mother’s testimony of daughter’s desire to

       change surname was the only evidence).


[16]   In addition, even if we were to assume that G.E’s testimony alone established

       by clear and convincing evidence that she no longer posed a threat to children,

       the juvenile court still did not err. INDIANA CODE § 31-33-27-5(f) also requires

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       G.E. to show that her substantiated report of neglect or abuse no longer has

       current probative value to keep in DCS’s records. Here, the fact that G.E. chose

       to work at a child care center makes her history of child neglect and substance

       abuse relevant, as INDIANA CODE §§ 31-33-26-2 thru 31-33-26-16 require DCS

       to maintain a database of perpetrators like G.E. and make that database

       available to certain people and entities, including child care providers. Further,

       child care providers are prohibited by administrative rule from employing or

       utilizing “the services of a person known by the division and reported to the

       center as a substantiated perpetrator of child abuse.” 470 Ind. Admin. Code 3-

       4.7-13(c) (2015). Further, if a criminal history check of an employee shows that

       an offense of child abuse, neglect, or exploitation has occurred, “sufficient

       grounds exist to revoke or deny licensure, deny employment or dismiss an

       employee[.]” 470 IAC 3-4.7-8(c)(16) (2015).1 Given the potential risk to

       Pinnacle’s child care license, the statutory and administrative schemes

       governing the operation of child care providers make clear that G.E.’s records

       have probative value.


[17]   Therefore, we find that G.E. has not shown by clear and convincing evidence

       that (1) there is little likelihood that she will be a future perpetrator of child

       abuse or neglect; and (2) that there is insufficient current probative value to




       1
         We note that a criminal history check may not have revealed information regarding G.E.’s child and
       substance abuse history contained in DCS’s records. However, the language of the regulatory scheme
       highlights the probative value of an individual’s history of child or substance abuse as it relates to working for
       a child care provider, criminal or otherwise.

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       justify the retention of her records by DCS for future reference. We affirm the

       juvenile court’s denial of her petition.


[18]   Affirmed.


[19]   Barnes, J., and May, J., concur.




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