                                                                         Feb 12 2015, 7:13 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Danielle L. Gregory                                        Gregory F. Zoeller
      Indianapolis, Indiana                                      Attorney General of Indiana
                                                                 Robert J. Henke
                                                                 David E. Corey
                                                                 Deputy Attorneys General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of:                                          February 12, 2015
                                                                 Court of Appeals Case No.
      S.A. (Minor Child), Child in                               49A02-1402-JC-74
      Need of Services,
                                                                 Appeal from the Marion Superior
      And                                                        Court
                                                                 The Honorable Marilyn Moores,
      M.H. (Father),                                             Judge
      Appellant-Respondent,                                      The Honorable Diana Burleson,
                                                                 Magistrate
                                                                 Case No. 49D09-1306-JC-16347
              v.

      The Indiana Department of
      Child Services,
      Appellee-Petitioner




      Crone, Judge.

[1]   The Indiana Department of Child Services (“DCS”) has filed a petition for

      rehearing of our opinion in Matter of S.A., 15 N.E.3d 602 (Ind. Ct. App. 2014).

      Court of Appeals of Indiana | Opinion on Rehearing 49A02-1402-JC-74 | February 12, 2015   Page 1 of 10
      We grant the petition for the limited purpose of dispelling DCS’s

      misconceptions about our opinion and reaffirm our original decision in all

      respects.


[2]   The facts essential for rehearing are as follows. S.A. (“Child”) was born in

      August 2011 to A.A. (“Mother”). Child’s biological father, M.H. (“Father”),

      was present for Child’s birth but spent the next two years on active duty in the

      U.S. Navy. Father did not pay support or furnish any items for Child’s care.


[3]   In June 2013, DCS received a report alleging that Mother was neglecting Child

      as a result of using heroin and that Child’s maternal grandmother

      (“Grandmother”) had taken him into her home. DCS interviewed

      Grandmother, who stated that she was seeking temporary guardianship of

      Child. DCS interviewed Mother, who admitted using heroin but denied

      allegations that she did so in Child’s presence and that her relationship with her

      boyfriend was violent. DCS had no information about Father other than his

      name and attempted to contact him via Facebook.


[4]   The trial court authorized DCS to file a petition alleging Child to be a child in

      need of services (“CHINS”). The petition alleged that Mother was using drugs

      and lacked stable housing and that Father’s whereabouts were unknown. After

      an initial hearing, the court ordered Child to be placed with Grandmother.

      Father did not attend the hearing, and Mother said that she had not seen him

      for over a year and did not know where he was. Father became aware of the

      proceedings and filed a motion for paternity testing in July 2013. Father stated


      Court of Appeals of Indiana | Opinion on Rehearing 49A02-1402-JC-74 | February 12, 2015   Page 2 of 10
      that he was stationed in Texas and requested permission to appear at future

      proceedings telephonically. Father did so at the third initial hearing in August

      2013 and requested the assistance of counsel. The trial court entered a denial of

      the allegations raised in the CHINS petition on Father’s behalf and appointed a

      public defender to represent him. The court also granted Father’s motion to

      establish paternity.


[5]   In September 2013, pursuant to an agreement with DCS, Mother admitted to

      certain allegations in the CHINS petition, and the trial court adjudicated Child

      to be a CHINS. The court held a dispositional hearing, ordered Mother to

      participate in DCS-recommended services, and continued Child’s placement

      with Grandmother. Because the paternity test results were unavailable, the

      court rescheduled the proceedings as to Father.


[6]   Father’s paternity was conclusively established in November 2013. Counsel

      appeared at a hearing on Father’s behalf, requested a factfinding hearing, and

      expressed Father’s desire to obtain custody of Child. The trial court set the

      matter for a factfinding hearing and granted Father supervised parenting time.

      At the end of November 2013, Father was discharged from the Navy. He

      moved into his parents’ home and began working for United Parcel Service. He

      also contacted DCS and Child’s court-appointed special advocate (“CASA”)

      regarding the CHINS proceedings.

              Every day thereafter, Father spent time with the Child at
              Grandmother’s house. DCS did not observe any of these visits, but
              Grandmother reported to DCS that, with the exception of some


      Court of Appeals of Indiana | Opinion on Rehearing 49A02-1402-JC-74 | February 12, 2015   Page 3 of 10
        nervousness and difficulty with diaper changing, Father “interacts well
        with [the Child].”
        The day before the fact-finding hearing, on December 19, 2013, Father
        attended a Child and Family Team Meeting with DCS and the CASA.
        There, Father disclosed that he had been diagnosed and treated for
        post-traumatic stress disorder (PTSD) while on active duty. According
        to Father, he was hospitalized for four months at University
        Behavioral Health in Denton, Texas, because he “was having difficulty
        sleeping, [] couldn't cope with [his] emotions, [and] was dealing with
        extreme depression.” Father explained that after he was released from
        the hospital in May of 2013, he briefly continued to attend counseling
        but was no longer receiving treatment.
        On December 20, 2013, the trial court held a fact-finding hearing.
        During the hearing, DCS and the CASA recommended that the trial
        court continue the Child’s CHINS adjudication. Both testified about
        their concerns regarding the Child’s unfamiliarity with Father, as well
        as Father’s lack of prior parenting experience. In addition, based upon
        Father’s revelation that he had been treated for PTSD, DCS and the
        CASA agreed that Father should undergo a psychological evaluation.
        At the close of the evidence, the trial court acknowledged that Father’s
        inability “to care for the [C]hild” was due to his out-of-state military
        service. Nevertheless, the trial court criticized Father for his failure to
        establish paternity “a lot sooner” and also expressed its concern that
        Father could not precisely recall when he had been released from his
        PTSD treatment program. Moreover, the trial court emphasized
        Mother’s near-completion of her services and explained its preference
        that the Child eventually be released to Mother. Accordingly, the trial
        court issued written findings in support of its decision to “continue[]
        the adjudication that [the Child] is a [CHINS].”
        On January 10, 2014, the trial court conducted Father’s dispositional
        hearing. Based on DCS’ recommendation, the trial court ordered
        Father to complete a parenting assessment and comply with any
        subsequent recommended services. The trial court additionally
        ordered Father to submit documentation regarding his treatment for
        PTSD or, alternatively, to undergo a psychological evaluation.
Id. at 606-07 (citations to transcript and appendix omitted).




Court of Appeals of Indiana | Opinion on Rehearing 49A02-1402-JC-74 | February 12, 2015   Page 4 of 10
[7]   Father appealed, challenging the sufficiency of the evidence supporting the trial

      court’s determination that Child remained a CHINS. Before we addressed

      Father’s sufficiency argument, however, we addressed sua sponte “some

      procedural irregularities and their impact on Father’s due process rights.” Id. at

      608. We first stated that

              although Father did, in fact, receive a fact-finding hearing, the trial
              court had already determined the Child’s CHINS status based solely
              on Mother’s admission—notwithstanding the fact that Father was
              involved in the case and had denied the allegations in the CHINS
              petition. Because a court cannot issue separate adjudications for each
              parent, the trial court’s CHINS determination should be based on a
              consideration of the evidence in its entirety. Accordingly, by
              adjudicating the Child as a CHINS prior to Father’s fact-finding
              hearing, we find that the trial court deprived Father of a meaningful
              opportunity to be heard.
      Id. at 609. We also stated that

              [b]y failing to issue a dispositional decree that specifically addressed, in
              part, its bases for placing the Child with Grandmother rather than
              Father and for ordering participation in services seemingly unrelated to
              the allegations in DCS’ petition, the trial court violated the mandates
              of Indiana code sections 31-34-19-6 and 31-34-19-10 [which establish
              standards for dispositional decrees in CHINS proceedings], and “may
              well have interfered with Father’s rights in the upbringing of [the
              Child].”
      Id. at 610 (quoting In re N.E., 919 N.E.2d 102, 108 (Ind. 2010)). We concluded

      that “the trial court’s CHINS adjudication was contrary to due process,” id., but

      we resolved the appeal on sufficiency of evidence grounds. See id. at 608 n.2




      Court of Appeals of Indiana | Opinion on Rehearing 49A02-1402-JC-74 | February 12, 2015   Page 5 of 10
      (“[W]e will address the due process issue, but we resolve this case on other

      grounds.”).1


[8]   In addressing Father’s sufficiency arguments, we noted that “the trial court

      identified two primary concerns for finding that the Child is in need of services

      that he will be unlikely to receive without the court’s coercive intervention: (1)

      Father’s disinterest in establishing paternity and supporting his Child and (2)

      Father’s history of PTSD.” Id. at 610. Regarding the former, we stated,

              By the time of the fact-finding hearing, Father had been discharged
              from the Navy, had moved back to Indianapolis, and had secured
              employment. The trial court also found that Father had contacted
              DCS and the CASA as soon as he returned to Indianapolis and began
              developing a relationship with the Child. The record further
              demonstrates that Father filed a motion for paternity testing upon
              learning of the CHINS petition, and he prepared a bedroom for the
              Child at his parents’ home. In addition, Father stated that he plans to
              stay with his parents—where the Child is welcome—until he saves
              enough money to purchase his own home.
              Our supreme court has established that the State’s intrusion into
              parental rights should be limited to instances “where parents lack the
              ability to provide for their children, not merely where they encounter
              difficulty in meeting a child’s needs.” In re S.D., 2 N.E.3d [1283, 1287
              (Ind. 2014)] (internal quotation marks omitted). DCS does not satisfy
              its burden of proof by simply highlighting Father’s shortcomings as a
              parent; rather, DCS must establish that Father is unlikely to meet the
              Child’s needs absent coercive court intervention. Neither the trial
              court’s findings nor the other evidence in the record supports such a
              conclusion. If it were sufficient for the purposes of CHINS




      1
        DCS contends that our statement regarding the CHINS adjudication “sounds like the law of the case,” even
      though it is clearly dicta. Appellee’s Petition for Reh’g at 4. We find this contention meritless.



      Court of Appeals of Indiana | Opinion on Rehearing 49A02-1402-JC-74 | February 12, 2015       Page 6 of 10
              adjudications that a parent has no prior parenting experience or
              training, then all new parents would necessarily be subject to DCS
              intervention. Here, Father resolved the allegations raised in the
              CHINS petition by the time of the fact-finding hearing—he was
              present in Indianapolis and willing to parent his Child.
      Id. at 611-12.


[9]   And as for the latter, we said,

              We first note that the issue of Father’s PTSD was not raised in the
              CHINS petition as a basis for DCS involvement. Instead, after Father
              disclosed his diagnosis, DCS relied upon it as a post hoc justification for
              coercive intervention and now maintains that “[t]he record is clear that
              the court still had concerns that Father’s mental health issues posed a
              problem to Father’s ability to parent [the] Child.” At the close of the
              fact-finding hearing, the trial court stated that it was “not convinced
              that [Father’s] PTSD is under control” because when asked about his
              release date from the hospital, Father answered “I would guess in
              May.”
              We find Father’s voluntary admission of his PTSD history to DCS and
              the CASA to be indicative of the fact that court intervention would not
              be necessary to compel Father into treatment. Father testified that he
              successfully completed the PTSD treatment program in the military
              ward of a behavioral health hospital, and he continued to see a
              counselor after his release until it was no longer necessary. Father also
              testified that part of his treatment regime was learning how to
              “understand[] when you have warning signs of things going awry.”
              Although it was certainly within the discretion of the trial court to
              discredit Father’s testimony, we find no other basis in the record to
              support the trial court’s conclusion that even if Father requires
              additional PTSD treatment, he is unlikely to obtain such treatment
              without coercive intervention. See In re K.D., 962 N.E.2d at 1256
              (“Speculation is not enough for a CHINS finding.”).




      Court of Appeals of Indiana | Opinion on Rehearing 49A02-1402-JC-74 | February 12, 2015   Page 7 of 10
       Id. at 612 (citations to transcript and appendix omitted). Therefore, we reversed

       the trial court’s order that Child remained a CHINS.


[10]   In its petition for rehearing, DCS first contends that

               the record is clear that Mother, at all times relevant to this appeal, had
               the sole legal custody of Child. Father had just recently established
               paternity, but there was no custody order in Father’s favor. When this
               Court reversed, the facts indicated that Mother was still working
               through her substance abuse issues, and was still engaging in services.
               The court and DCS were considering extending Mother’s visitation,
               but the record does not indicate that Mother was prepared to receive
               Child back into her care.
               However, when this Court reversed, it effectively sent Child back to a
               Mother who admitted she needed help with her substance abuse. By
               reversing, this Court left no room for the CHINS court to protect Child
               further, and effectively placed the trial court in a position, once this
               opinion is certified, of immediately returning Child to Mother, who
               had admitted Child was a CHINS and needed services.
       Appellee’s Petition for Reh’g at 3.


[11]   Father points out that he had filed a petition for modification of custody that

       was pending at the time of his CHINS hearing and that he asked the court to

       hear evidence on the petition during the hearing so that Child could be released

       to him if no basis was found for continuing Child’s CHINS status. See Tr. at 5

       (Father’s counsel: “[I]f the Court were to close this case today [Mother and

       Father] could work out a parenting agreement in terms of um, joint custody,

       joint physical, and joint um, legal custody for the child. So that, there are no

       issues with [Father] he is an appropriate parent, which we believe, it will be

       proven in Court with the fact-finding that the Court would have to close the


       Court of Appeals of Indiana | Opinion on Rehearing 49A02-1402-JC-74 | February 12, 2015   Page 8 of 10
       case in terms of with [Father], were [sic] we would work out a plan where um,

       we could have joint custody with [Mother] and [Father] so that the case could

       close.”). The trial court denied Father’s request.2 Because the trial court had an

       opportunity to modify custody to Father but did not do so, we are

       unsympathetic to DCS’s claims. The parties have not indicated whether a

       hearing has been held on Father’s custody petition or whether a ruling has been

       issued; we presume that a hearing will be held and a ruling issued in due course

       if such has not occurred already.


[12]   DCS also contends that our opinion “creates confusion and is being interpreted

       as meaning that a juvenile court must wait until both parents … appear in court

       at the same time and hears the matter in its entirety at the same time.” Appellee’s

       Petition for Reh’g at 5. Our opinion does not say (and should not be

       interpreted as saying) any such thing. Rather, as Father states, it simply stands

       for the proposition that “[w]hen the [CHINS] adjudication can involve both



       2
        The record suggests that the trial court denied Father’s request to hear evidence on the custody petition
       based partly on the fact that Mother had not retained counsel in the custody proceeding and objected to
       Father being granted full custody of Child, as well as on the guardian ad litem’s concerns about Father’s
       “mental state” and DCS’s concerns about having a “professional’s feedback on [Father’s] parenting.” Tr. at
       9, 12. Father’s counsel noted that even if a hearing on the custody petition was delayed,
                the issue is still going to be the same. The services won’t be necessary to protect the child
                and this Court has in the past changed custody […] when there is an open CHINS case and
                we have a child where you know, the relationship isn’t for the past so many years, but,
                there are no services necessary for father to protect the child.
                [….]
                [I]f you find that there is no … CHINS then there is still not any mechanism necessary to
                close the case because [Father] wouldn’t have custody. So [the CHINS determination and
                the custody determination] would still need to kind of occur at the same time.
       Id. at 13-14. As Father’s counsel predicted, DCS failed to establish a basis for a CHINS finding as to Father.



       Court of Appeals of Indiana | Opinion on Rehearing 49A02-1402-JC-74 | February 12, 2015            Page 9 of 10
       parents at the same time, it should involve both parents at the same time so there

       is one adjudication as to all facts pertaining to the entire matter.” Appellant’s

       Response at 6 (emphases added).3 If multiple hearings are unavoidable, then

       the trial court should, if at all possible, refrain from adjudicating the child a

       CHINS until evidence has been heard from both parents. And if an

       adjudication is unavoidable before evidence has been heard from the second

       parent, then the trial court must give meaningful consideration to the evidence

       provided by the second parent in determining whether the child remains a

       CHINS.


[13]   With these clarifications, we hereby reaffirm our original decision in all

       respects.

       Mathias, J., concurs.
       Riley, J., would deny petition for rehearing.




       3
        We are fully aware, as DCS states, that a court “shall complete” a factfinding hearing on a CHINS petition
       not more than sixty days after the petition is filed, with a sixty-day extension permissible if all parties consent,
       and that the court “shall dismiss the case without prejudice” upon motion if those deadlines are not met.
       Ind. Code § 31-34-11-1.



       Court of Appeals of Indiana | Opinion on Rehearing 49A02-1402-JC-74 | February 12, 2015              Page 10 of 10
