MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
                                                                     Jul 21 2015, 10:16 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
S.W. (MOTHER):                                            THE INDIANA DEPARTMENT OF
Noah T. Williams                                          CHILD SERVICES:
Monroe Co. Public Defender                                Gregory F. Zoeller
Bloomington, Indiana                                      Attorney General of Indiana
ATTORNEY FOR APPELLANT                                    Robert J. Henke
M.S. (FATHER):                                            Abigail R. Miller
                                                          Deputy Attorney General
Jeremy M. Noel                                            Indianapolis, Indiana
Monroe Co. Public Defender
Bloomington, Indiana                                      ATTORNEY FOR APPELLEE
                                                          MONROE COUNTY CASA:
                                                          Holly M. Harvey
                                                          Holly Harvey Law, LLC
                                                          Bloomington, Indiana



                                              IN THE
      COURT OF APPEALS OF INDIANA

In the Matter of:                                         July 21, 2015
A.B. and C.S. (Minor Children),                           Court of Appeals Cause No.
Children Alleged to be in Need of                         53A01-1408-JC-365
Services,
S.W. (Mother) and M.S. (Father)                           Appeal from the Monroe Circuit Court
                                                          The Honorable Stephen Galvin, Judge
Appellants-Respondents,                                   Cause Nos: 53C07-1310-JC-524
                                                                     53C07-1310-JC-525
        v.




Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JC-365 | July 21, 2015          Page 1 of 13
      The Indiana Department of Child
      Services
      and
      Monroe County CASA,
      Appellees-Petitioners,




      Robb, Judge.



                                Case Summary and Issues
[1]   On June 30, 2014, the trial court issued a written order finding A.B. and C.S. to

      be children in need of services (“CHINS”). S.W. (“Mother”) and M.S.

      (“Father”) appeal, raising two issues for our review: (1) whether the trial court

      erred by continuing the case sua sponte and holding a second fact-finding

      hearing after Mother’s request for judgment, and (2) whether the trial court’s

      CHINS determination was clearly erroneous. Addressing only the second

      issue, which is dispositive, we conclude that the trial court’s CHINS

      determination was clearly erroneous. We reverse.



                            Facts and Procedural History
[2]   Mother has two children, A.B. and C.S., both of whom live with Mother.

      A.B.’s biological father is K.B. C.S.’s biological father is M.S. (referred to as

      “Father”). Prior to the events that led to the trial court’s CHINS determination,

      Mother and Father lived together but were not married.

      Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JC-365 | July 21, 2015   Page 2 of 13
[3]   On September 30, 2013, the Indiana Department of Child Services (“DCS”)

      received a report of possible abuse or neglect of A.B. and C.S. Kristen King, a

      DCS caseworker, assessed the home but did not find evidence of abuse or

      neglect. She did, however, note that four-year-old A.B. acted strangely and did

      not seem to want King to leave. Mother told King that an appointment had

      been made with A.B.’s pediatrician due to some concerning behavior observed

      by Mother.


[4]   On October 9, 2013, King made a follow-up visit to Mother’s home. Mother

      informed King that she had recognized sexualized behavior exhibited by A.B.,

      which she had discussed with A.B.’s doctor. King spoke with A.B. and held a

      “good-touch, bad-touch” conversation with her, at which point A.B. disclosed

      that she had been molested. King, Mother, and the children drove together to a

      child advocacy center where A.B. participated in a forensic interview and

      disclosed that she had been molested by Father. Father was arrested as a result

      of the allegations. He has been charged with child molestation, and a no

      contact order was issued in his criminal case.


[5]   On October 10, 2013, DCS filed a verified petition alleging that both A.B. and

      C.S. were CHINS based on the alleged molestation and the fact that the

      children lived in the same home as Father. An initial hearing was held the

      same day, at which Mother and Father denied the CHINS allegations. The

      trial court ordered placement of the children with Mother, and she said she was

      willing to work with DCS.



      Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JC-365 | July 21, 2015   Page 3 of 13
[6]   A fact-finding hearing was conducted on March 13, 2014. During the months

      leading up to the hearing, Mother had complied with all DCS directives, which

      included providing therapy for A.B. There had been no contact between A.B.

      and Father. King testified that Mother was “shock[ed]” to learn that Father

      molested A.B. Transcript at 22. King said that at that point “[Mother] was

      willing to do what ever it took to keep her daughter safe.” Id. Finally, King

      testified that she had no safety concerns while the children were in Mother’s

      care, and that Mother was doing everything DCS asked of her.


[7]   DCS caseworker Maria Ucan also testified at the March 13 hearing. She

      expressed concern that Mother had a close relationship with Father’s mother,

      M.W. During the pendency of the CHINS case, Mother had spent the night at

      M.W.’s residence on one occasion. Ucan said she was worried the children and

      Father may cross paths due to Mother’s relationship with M.W. She also noted

      that Mother’s mother pays for her apartment. Mother was unemployed but

      searching for a job. After Ucan’s testimony, the trial court took the matter

      under advisement.


[8]   On April 14, 2014, the trial court entered an order sua sponte continuing the

      fact-finding hearing and ordering the Monroe County Court Appointed Special

      Advocate (“CASA”) program to present evidence at a second hearing. A

      second fact-finding hearing was conducted on June 5, 2014.


[9]   At the June 5 hearing, the CASA volunteer, Anjanette Raymond, submitted

      evidence from three witnesses, including herself. Raymond had spent


      Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JC-365 | July 21, 2015   Page 4 of 13
       approximately thirty hours investigating the case. At that time, A.B. was still

       regularly receiving therapy, and it was Raymond’s recommendation that A.B.

       continue to do so.


[10]   Cindy Ooley, a visit supervisor with Family Solutions, testified that she spoke

       with Mother during a visit between Father and C.S. on March 12, 2014. Ooley

       testified that when she told Mother she must excuse herself from further

       involvement because of a conflict of interest, Mother asked her not to tell

       anyone about the conflict. Mother also told Ooley that she wanted to see

       Father “because she loved him and that she believed he was innocent.” Tr. at

       87-88.


[11]   CASA Raymond opined that the coercive intervention of the court was needed.

       She offered several reasons for her opinion: (1) she suspected that Mother was

       in denial that Father molested A.B.; (2) she was concerned that Mother may

       discontinue A.B.’s therapy if there was no CHINS finding; (3) Mother did not

       fully disclose to A.B.’s therapist about threats that A.B. allegedly received

       during the sexual abuse; (4) Mother relied on her mother for financial support;

       and (5) Mother was fearful of the court and respected the court’s authority.


[12]   On June 30, 2014, the trial court issued an order concluding that A.B. and C.S.

       were CHINS. The trial court’s order included the following relevant findings:

                                                Findings of Fact
                2.     In October, 2013, the children resided with [Mother] and
                [Father].



       Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JC-365 | July 21, 2015   Page 5 of 13
        3.     On October 9, 2013, [A.B.] was interviewed at “Suzie’s Place”
        [sic] Child Advocacy Center. [A.B.] revealed that she had been
        repeatedly molested by [Father] . . . which the Court accepts as true
        ....
        4.     Following [A.B.’s] disclosures, the children were detained from
        [Father’s] care and Petitions alleging that the children are Children in
        Need of Services were filed.
        5.      A fact-finding hearing was held on March 13, 2014. DCS
        caseworker Kristen King testified that she has worked for DCS for 10
        months. She investigated the case. She testified that [Mother] was
        willing to do whatever was necessary to protect her children.
        Therefore, when the case was initiated, the DCS decided to
        recommend that the children remain in [Mother’s] care. Ms. King
        further testified that, although she was not the current caseworker, she
        had no concerns that the children were safe in [Mother’s] care.
        6.      However, DCS caseworker Maria Ucan, the ongoing
        caseworker, testified that she had safety concerns for the children. She
        noted that [Mother] continues to maintain a relationship with
        [Father’s] mother, including spending the night at her home. [Mother]
        lives in an apartment paid for by [Father’s] mother. [Mother] has
        taken no steps to be financially independent from [Father’s] mother.
        Further, [Mother] has made it clear that she does not want DCS
        involved in her life.
        ***
        8.      Cindy Ooley was called as a witness by the CASA at the June
        5th hearing. Ms. Ooley is a therapist who works for Family Solutions.
        Family Solutions provides services to [Mother] and the children. Ms.
        Ooley was asked to supervise a visit between [Father] and [C.S.] on
        March 12, 2014. [Mother] brought [C.S.] to the visit. When Ms.
        Ooley realized that she is related to [Mother], she told [Mother] that
        she would not be able to continue to offer services because of the
        conflict of interest. [Mother] replied “You haven’t told them, have
        you? Don’t tell them.” During the conversation, [Mother] stated “I
        wish I could see [Father].” When Ms. Ooley asked why she wanted to
        see [Father], [Mother] stated “because I love him and I believe he is
        innocent.”
        9.     The Court Appointed Special Advocate, Anjanette Raymond,
        has a B.A. in psychology, an M.A. in counseling, a J.D. from Loyola
Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JC-365 | July 21, 2015   Page 6 of 13
        University, and a L.L.M. from the University of London. She
        currently teaches international commercial finance and international
        conflict resolution at the Kelley School of Business and the Maurer
        School of Law at Indiana University. Prior to becoming an attorney,
        Ms. Raymond spent 13 years as a therapist treating adolescent sex
        offenders. She spent approximately 30 hours investigating this case.
        10.    Ms. Raymond notes that, in addition to the molestation,
        [Father] made threats to [A.B.]. [A.B.] will require ongoing mental
        health treatment to deal with the trauma of the molestation.
        11.     Ms. Raymond asserts that [Mother] is not able to adequately
        protect the children because she has not come to terms with the fact
        that [Father] molested her daughter. She notes that [Mother] is
        cooperative with authority figures, but is in denial. She believes that
        [Mother] will keep the children safe as long as the coercive
        intervention of the court continues. The Court accepts this testimony
        as truthful and accurate.
                                       Conclusions of Law
        ***
        2.      Despite the overwhelming evidence that [A.B.] was repeatedly
        molested by [Father], it is clear that [Mother] does not believe her
        daughter. Further, she has acted deceptively in not informing the DCS
        or the CASA of her opinion. Considering [Mother’s] behavior,
        removal of the children from [Mother’s] care in order to ensure their
        health and safety would be warranted. However, as the CASA
        testified, [Mother] complies with directives from authority figures. She
        has demonstrated that she will keep the children safe as long as the
        threat of removal continues. Clearly, the coercive intervention of the
        court is necessary to ensure the safety of the children.
        3.     [A.B.] will require treatment to deal with the emotional trauma
        of the molestation. Treatment can only be ensured with the active
        intervention of the court.
Appellant’s Appendix at 112-14. Mother and Father now appeal the trial

court’s CHINS determination.




Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JC-365 | July 21, 2015   Page 7 of 13
                                  Discussion and Decision
                                       I. Standard of Review
[13]   When reviewing a trial court’s CHINS determination, we neither reweigh the

       evidence nor judge witness credibility. In re K.D., 962 N.E.2d 1249, 1253 (Ind.

       2012). We consider only the evidence supporting the trial court’s decision and

       the reasonable inferences to be drawn therefrom. Id.


[14]   Where, as here, the trial court enters findings of fact and conclusions sua

       sponte, we apply a two-tiered standard of review: (1) we determine whether the

       evidence supports the findings of fact and (2) whether the findings support the

       judgment. In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). A finding of fact is

       clearly erroneous if the record lacks evidence or reasonable inferences from the

       evidence to support it. In re Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct.

       App. 2009), trans. denied. The judgment is clearly erroneous if we are left with a

       “definite and firm conviction that a mistake has been made.” In re S.L., 997

       N.E.2d 1114, 1123 (Ind. Ct. App. 2013). We will reverse only upon a showing

       that the court’s decision was clearly erroneous. In re K.D., 962 N.E.2d at 1253.


                                  II. CHINS Determination
[15]   The trial court adjudicated the children CHINS under Indiana Code section 31-

       34-1-1, which provides:

               A child is a child in need of services if before the child becomes
               eighteen (18) years of age:



       Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JC-365 | July 21, 2015   Page 8 of 13
               (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 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.
[16]   The burden is on DCS to prove by a preponderance of the evidence that a child

       is a CHINS. In re L.C., 23 N.E.3d 37, 39 (Ind. Ct. App. 2015), trans. denied; Ind.

       Code § 31-34-12-3. “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.” In re S.D., 2 N.E.3d at 1287.


[17]   Mother contends that the trial court’s CHINS adjudication is clearly erroneous,

       specifically arguing that she did not require the coercive intervention of the

       court. The portion of the statute requiring the need for the court’s coercive

       intervention “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. (citation and quotation marks omitted) (emphasis in original).




       Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JC-365 | July 21, 2015   Page 9 of 13
[18]   The findings supporting the trial court’s determination that court intervention is

       necessary are Factual Findings 6, 8, 10 and 11 and Conclusions 2 and 3.1 As

       for Factual Finding 6, DCS concedes that it is clearly erroneous in its statement

       that Mother is financially dependent on Father’s mother. At the time of the

       fact-finding hearing, Mother received financial help from her mother, and there

       is no evidence that she has ever received financial support from Father’s

       mother. Thus, the only portion of Factual Finding 6 that could support the trial

       court’s decision was Ucan’s concern that the children could have an

       unsupervised encounter with Father. This concern must be viewed in the

       proper context, which is that Mother visited Father’s mother’s residence only

       once—before a request from DCS not to visit—and that no such encounter

       between Father and the children occurred during the life of the case.


[19]   The remaining findings are all related to A.B.’s need for continued therapy and

       the need to keep the children safely away from Father. It was the trial court’s

       conclusion that those things could only be provided by Mother with the

       coercive intervention of the court. We agree with the trial court that A.B.’s

       safety and emotional well-being are of paramount concern. However, we

       cannot agree with the court that the evidence supports a conclusion that the

       coercive intervention of the court is necessary in this case. From the time

       Mother learned of A.B.’s molestation until the time of the second fact-finding




       1
         We note that the trial court’s Conclusions of Law 2 and 3 contain what are actually factual findings, rather
       than purely legal conclusions.

       Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JC-365 | July 21, 2015              Page 10 of 13
       hearing, Mother had done all that DCS asked of her, including taking A.B. to

       therapy and ensuring there was not a single incident of unsupervised contact

       between Father and the children. CASA Raymond’s opinion—and the trial

       court’s conclusion—that Mother would be unable to continue acting in the best

       interests of the children is not based on Mother’s actual conduct; if anything,

       that conclusion is made in spite of all Mother’s actions to the contrary. Rather,

       the conclusion that court intervention is needed seems to be entirely

       speculative.


[20]   Mother’s respect for the trial court’s authority cannot be used as support for

       finding that court intervention is necessary. All rational parents in such a

       situation are expected to respect a court’s authority. It is equally predictable

       that a parent—especially one who cares for her child—fears the possibility that

       her child may be taken from her. Mother’s view of the court’s authority is

       normal under the circumstances. If respect for the court’s authority is sufficient

       to invoke the need for court intervention, then the statute’s requirement would

       mean nothing at all.


[21]   Mother’s statement to Ooley appears to be the only cognizable basis for a

       conclusion that court intervention is necessary in this case. The trial court’s

       Factual Finding 8 recounts the statement in relevant part: “[Mother] stated ‘I

       wish I could see [Father].’ When Ms. Ooley asked why she wanted to see

       [Father], [Mother] stated ‘because I love him and I believe he is innocent.’”

       Appellant’s App. at 114. First, we observe that Mother’s statement that she

       wished she could see Father does not question A.B.’s need for therapy, nor did

       Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JC-365 | July 21, 2015   Page 11 of 13
       she say that she wanted A.B. to see Father or that she herself planned to see him.

       Moreover, this single statement was made by Mother nearly three months

       before the June 5 fact-finding hearing. It is the only statement of its kind, and

       there was no evidence presented at the June 5 hearing that Mother still had not

       come to grips with A.B.’s allegations or that Mother intended to do anything

       other than keep her children safe. In light of Mother’s demonstrated

       willingness and ability to care for her children in the manner deemed

       appropriate by DCS over the course of several months, it is not reasonable to

       infer from Mother’s statement to Ooley that she is incapable of providing for

       her children without the coercive intervention of the court.


[22]   The sexual abuse suffered by A.B.—which we presume to be true for the sake of

       this appeal—is a serious issue that impacts her safety and well-being, and we

       admire the trial court’s use of caution where a child’s safety is at stake. That

       said, the evidence presented at the fact-finding hearings does not support the

       conclusion that Mother is unable to care for her children or that court

       intervention was needed.2 See In re S.D., 2 N.E.3d at 1287.




       2
         Although much of our discussion concerns Mother, we are cognizant that Father’s actions are at the root of
       this CHINS case. That said, at the time of the fact finding hearings, Mother was the only parent exercising
       custody and control over the children, and she was capable of keeping the children safe and away from
       Father. Father was arrested and charged with child molestation, and his criminal case is still open as of the
       date of this decision. Father’s criminal proceedings include imposition of a no contact order that prohibits
       Father from engaging in any contact with Mother or A.B., and that no contact order will remain in place
       after our reversal of the CHINS determination. Consequently, an enduring CHINS finding as to Father
       would not further the objective of keeping the children safely away from Father. Rather, a continuing
       CHINS case would serve only as a burden to Mother, who the State failed to show needs the continuing,
       coercive intervention of the court.

       Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JC-365 | July 21, 2015            Page 12 of 13
                                                Conclusion
[23]   Concluding the trial court’s CHINS adjudication is clearly erroneous, we

       reverse.


       Reversed.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JC-365 | July 21, 2015   Page 13 of 13
