MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any
court except for the purpose of establishing                            Oct 10 2017, 9:09 am

the defense of res judicata, collateral                                      CLERK
                                                                         Indiana Supreme Court
estoppel, or the law of the case.                                           Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Victoria L. Bailey                                        Curtis T. Hill, Jr.
Marion County Public Defender                             Attorney General of Indiana
Agency
                                                          Abigail R. Recker
Indianapolis, Indiana                                     Deputy Attorney General
                                                          Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of R.J., A Minor                            October 10, 2017
Child, A Child In Need Of                                 Court of Appeals Case No.
Services,                                                 49A05-1702-JC-246
S.E.,                                                     Appeal from the Marion Superior
                                                          Court
Appellant-Respondent,
                                                          The Honorable Marilyn A.
        v.                                                Moores, Judge
                                                          The Honorable Danielle
The Indiana Department of Child                           Gaughan, Magistrate
Services,                                                 Trial Court Cause No.
                                                          49D09-1403-JC-517
Appellee-Petitioner.




Brown, Judge.


Court of Appeals of Indiana | Memorandum Decision 49A05-1702-JC-246 | October 10, 2017           Page 1 of 20
[1]   S.E. (“Father”) appeals from the trial court’s modification of the dispositional

      decree in this child in need of services (“CHINS”) case. Father raises one issue

      which we revise and restate as whether the trial court’s modification of the

      dispositional decree was clearly erroneous. We affirm.


                                          Facts and Procedural History

[2]   On March 19, 2014, the Office of the Department of Child Services of Marion

      County, Indiana (“DCS”) filed a CHINS petition regarding R.J., born on

      December 25, 2006, and her two siblings, (collectively, the “Children”) alleging

      that D.J. (“Mother”) failed to provide the Children a safe and secure home free

      from sexual abuse, that the home was in deplorable conditions, that Mother

      and her boyfriend abused marijuana in the residence, and that the Children had

      numerous unexcused tardies from school. The CHINS petition alleged R.J.’s

      biological father was unknown. On the same day, the court held an

      Initial/Detention Hearing where it ordered the removal of R.J. from the home

      and placement in relative care with her maternal aunt.


[3]   On April 4, 2014, Mother entered an admission, and the court found R.J. to be

      a CHINS.1 That same day, the court granted the oral motion of DCS to amend

      the original petition and add Father as the alleged father of R.J. The court

      ordered Father to submit to DNA testing on May 30, 2014, after Father

      appeared before it asking to establish paternity for R.J. The court received the




      1
          The court entered a dispositional decree and parental participation order regarding Mother on May 2, 2014.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1702-JC-246 | October 10, 2017            Page 2 of 20
      results on August 8, 2014, and noted that the DNA testing showed Father was

      R.J.’s biological father.


[4]   On November 14, 2014, the court held a pretrial hearing where Father appeared

      by teleconference and waived his right to a factfinding hearing. Father is not a

      resident of Indiana and resides in Ohio. At the pretrial hearing, Father’s

      counsel explained that, “[R.J.] is almost eight years old and up to this point,

      neither the child or [sic] [Father] knew that there was a relationship there.”

      Transcript at 7. On the same day, the court found R.J. was a CHINS, held a

      dispositional hearing, and entered a dispositional order and parental

      participation order as to Father. In the parental participation order, the court

      instructed Father “to cooperate with the Department of Child Services in

      Indiana and Ohio regarding the [Interstate Compact on the Placement of

      Children (“ICPC”)] process.” Appellant’s Appendix Volume III at 116.


[5]   On December 31, 2014, DCS filed a progress report with the court covering the

      period from September 26, 2014, to January 9, 2015, and related in part that the

      family case manager “has had no contact with [Father] and his whereabouts are

      unknown at this time.” Appellant’s Appendix Volume II at 231. The court

      held a periodic review hearing on January 9, 2015, where Father’s counsel,

      according to the Order Regarding CHINS Periodic Review Hearing of the same

      day, requested that DCS explore the placement of R.J. with Father. At the

      hearing, Father stated he had been “contacted by Children Services of Ohio . . .

      for ICPC,” counsel for Father stated that visits had been “authorized months

      ago,” and Father stated he did not “know who my daughter [was] really with

      Court of Appeals of Indiana | Memorandum Decision 49A05-1702-JC-246 | October 10, 2017   Page 3 of 20
      until today.” Transcript at 23-24, 28. Counsel for DCS stated the “Case

      Manager reports that it was her impression that [Father] was aware that he

      needed to contact the relative care giver” and that DCS did not need to arrange

      the referral for him, and requested the court authorize supervised visits, “but

      don’t order them and . . . we have a lot of service providers in place that can

      make sure that that’s in [R.J.’s] best interest in light of her mental health

      needs.” Id. at 25. In the January 9, 2015 Order Regarding Children In Need of

      Services Period Review Hearing, the court stated that DCS “object[ed] to

      immediate placement” of R.J. with Father and found that Father “has not

      complied with [the Children’s] case plan.” Appellant’s Appendix Volume III at

      237-238.


[6]   On March 9, 2015, DCS filed a progress report covering the period from

      January 9, 2015, to March 13, 2015, and related again in part that the family

      case manager “has no contact with [Father] and his whereabouts are unknown

      at this time.” Id. at 246. On March 13, 2015, the court held a permanency

      hearing regarding the report. Father did not appear, and his counsel, when

      prompted by the court, stated “[n]othing to add.” Transcript at 40.


[7]   On May 19, 2015, DCS filed a progress report covering the period from March

      13, 2015 to May 22, 2015, related again in part that the family case manager

      “has no contact with [Father] and his whereabouts are unknown at this time,”

      and requested that the permanency plan for R.J. be changed to adoption.

      Appellant’s Appendix Volume III at 13. Three days later, the court held a

      permanency hearing pertaining to the progress report and recommendation,

      Court of Appeals of Indiana | Memorandum Decision 49A05-1702-JC-246 | October 10, 2017   Page 4 of 20
      and counsel for DCS presented the permanency plan recommendation and

      stated, “it’s very much in their best interest at this point for the plan to change

      to adoption for [the Children] . . . . The fathers, none of them are involved or

      participating in any services at this point.” Transcript at 45. In its May 22,

      2015 Order Regarding CHINS Permanency Hearing, the court found the

      “proposed permanency plan by DCS should be approved without

      modification,” and the “permanency plan for [R.J.] at this time is adoption.”

      Appellant’s Appendix Volume III at 21.


[8]   On November 4, 2015, Father filed a motion for supervised therapeutic

      parenting time at an agency, claiming that “[a]t the direction of DCS,

      Respondent-Father has attempted to work through the foster parent in order to

      exercise his parenting time.” Id. at 37. At the November 30, 2015 hearing on

      the motion, however, Father’s counsel withdrew the motion, stating “DCS has

      arranged through service providers to allow supervised parenting time between

      [Father] and [R.J.].” Transcript at 54.


[9]   On January 15, 2016, the court held a periodic review hearing. When asked

      whether another court date had been set in the parallel termination of parental

      rights (“TPR”) proceeding concerning R.J. and Father, counsel for Father

      responded that he did not believe another date was set and that Father “learned

      a lot about R.J. that [he did not know] and . . . he’s contemplating what his

      options are.” Id. at 59. In its Order Regarding CHINS Periodic Review

      Hearing, the court noted that Mother had signed adoption consents, that a

      “meeting has been scheduled as to [Father],” and that DCS had requested that

      Court of Appeals of Indiana | Memorandum Decision 49A05-1702-JC-246 | October 10, 2017   Page 5 of 20
       R.J’s portion of the case be set for review in thirty days to “allow the team the

       opportunity to explore additional services for [Father] and [R.J.].” Appellant’s

       Appendix Volume III at 52.


[10]   On February 22, 2016, DCS filed a progress report with the court covering the

       period from January 15, 2016, to February 26, 2016, and related in part:


               [The family case manager] was asked to put specific services in
               place for [Father] in order to make reunification efforts for
               [Father, the family case manager] was asked to put in a referral
               for a parenting assessment . . . . On 1/14/16, [the family case
               manager] put the referral in for father to complete a parenting
               assessment . . . . On 1/22/16, [Father] called [the family case
               manager] and let [sic] a voice message stated [sic], “He no longer
               wanted to go through with everything and that we can proceed
               without him.” Also he stated, “I have let my attorney know
               about this as well.” [The family case manager] reached out to
               the appropriate individuals to let them know about this decision.
               [Father] was not answering phone calls from his attorney and
               [the family case manager] was asked to try to reach out to him.
               [The family case manager] was able to speak to [Father] on the
               phone and [Father] stated he would call his attorney. On
               2/3/16, [Father] called the [the family case manager] and stated
               he now wanted to go through with the process and he wants his
               daughter back.

       Id. at 59-60. In the February 26, 2016 Periodic Review Hearing, DCS’s counsel

       explained that Father did complete the parenting assessment, and although the

       formal results were not back,


               based on the feedback from that assessor, it looks like there may
               be some ongoing recommendations for mental health as well as
               substance abuse, but we’ll get the formal report back . . . and at

       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-JC-246 | October 10, 2017   Page 6 of 20
                  that point, I’ll let you know so that [Father] knows what he needs
                  to be doing.

       Transcript at 63.


[11]   In its May 2, 2016 progress report, DCS indicated that Father started the

       parenting assessment on February 22, 2016, completed it at some point during

       March of 2016, and that as “a result of the assessment, [Father] was

       recommended to participate in home-based therapy, complete a psychological

       and anger management assessment, participate in father engagement, and

       engage in therapeutic visitation.”2 Appellant’s Appendix Volume III at 68. The

       report further provided that, during this time period, the family case manager

       contacted children services in Ohio and obtained a list of agencies used in Ohio

       to accommodate the services recommended; that on April 13, the family case

       manager contacted Father to give him a list of agencies, the family case

       manager went over the information for each agency, Father selected

       appropriate agencies, and the family case manager gave him the information for

       each agency; that Father was asked to schedule his appointment for the

       psychological and anger management assessment and to register for the father

       engagement program; and that the family case manager emailed Father a

       release of information form, and asked him to fill out the form for each service

       and send it back so that the family case manager could gain access to Father’s

       engagement.



       2
           In its August 2, 2016 progress report, DCS recommended the same ongoing services.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-JC-246 | October 10, 2017   Page 7 of 20
[12]   DCS filed an August 2, 2016 progress report providing that the family case

       manager facilitated a child and family team meeting at Father’s residence with

       Father on May 9, 2016, in Columbus, Ohio. According to the report, Father

       reported his frustration to the team and that he did not understand why he had

       to participate in all of the recommended services, and the family case manager

       explained that “the recommended services are to help address ongoing concerns

       mentioned in the parenting assessment” as well as to help Father have R.J. in

       his care. Id. at 83. The report also stated that the family case manager mailed

       Father a certified follow-up letter in May to summarize the meeting and review

       the information which he was required to return by June 3, 2016, including but

       not limited to DCS releases signed by any and all workers providing services to

       Father, documentation of the psychological assessment and recommendations,

       scheduling and documentation of the anger management assessment and

       recommendations, and documentation of father engagement attendance and

       participation.3


[13]   The progress report further provided that, on July 16, 2016, the family case

       manager contacted SouthEast Clinic to obtain information of Father’s service

       providers. The family case manager was “unable to confirm what services were

       being completed or address the providers to give them an understanding of

       what is going on with the case.” Id. at 84. According to the progress report,

       Father was “apparently doing services,” but “was not communicating with the



       3
           Father signed receipt of the certified letter on May 19, 2016.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-JC-246 | October 10, 2017   Page 8 of 20
[family case manager], as requested multiple times.”4 Id. at 84-85. During this

time, the family case manager was unable to speak with the providers and

explain why DCS was involved or why the services were being put into place,

was unable to share the results of the parenting assessment appropriately

without releases, and still did not know if Father was engaged in services

relevant to the case.        The report stated that “due to this, there was no progress

made to move forward with setting up therapeutic visitation.” Id. at 84. The

progress report also relates that on the same day, Father called the family case

manager and stated he “wanted to sign his rights and he was tired of the

process” and “he was tired of crying and done with DCS.” Id. A second

voicemail message stated he “wanted to sign his rights away,” “he did not want

the [family case manager] to call back [sic] him back because it was not




4
  The August 2, 2016 DCS progress report stated that the family case manager obtained the following
information:

        Therapy: [Father] has been attending group therapy and was reportedly last there on
        6/29/16. Whitney Peters was leading the group. [Family case manager] sent an email to
        her confirming if [Father] was participating in group or not and as of 7/29/16, no
        response was given.
        Psychological Assessment: [Father] reported he completed this assessment on 5/5/16
        and it was conducted by Angela Conley. [Family case manager] sent an email
        confirming if she conducted his psychological assessment and as of 7/29/16, no response
        was given.
        On 7/19/16, [family case manager] received a fax from [Father] with a certificate of
        completion for counseling, dated 6/19/16.
        On 7/25/16, [family case manager] received a phone call from Stephen Baldauf, person
        who handles Medical Records from SouthEast Clinic. Mr. Balduf [sic] indicated he was
        given permission by [Father] to release records. The information only indicated [Father]
        had been participating in anger management since the beginning of June 2016.


Appellant’s Appendix Volume III at 84.

Court of Appeals of Indiana | Memorandum Decision 49A05-1702-JC-246 | October 10, 2017         Page 9 of 20
       necessary,” and “the [family case manager] knew his address and to send the

       paperwork to his home and he promise [sic] it will be returned back.” Id.


[14]   On August 12, 2016, the court held a permanency hearing at which, in response

       to the request by Father’s counsel that DCS be ordered “to set up a visit

       schedule for [Father] and provide transportation” within thirty days, DCS’s

       counsel stated that


               [t]he team has consistently not recommended [therapeutic
               parenting time] and continues to not recommend them, including
               [R.J.]’s therapist, including the [Guardian ad Litem]. This man
               has never met this child. She has special mental health needs
               that need to be considered in introducing a new person into her
               life like this suddenly this late into the case and someone who has
               not been active in her life in anyway[sic]. So, at this point, DCS
               would again ask that the court, which you had previously, defer
               to the child’s therapist and to the team and at this point, no one is
               recommending visits nor have they ever gotten to a place where
               they felt that the visits would be in the child’s best interest.

       Transcript at 83. Guardian ad Litem Renee Fishel added that

               [w]e put back in [R.J.’s therapist] so she could start working
               again with [R.J.], because [Father] was starting to or stated at the
               Mediation that he wanted to do services. So, it’s been referred.
               He’s doing some things. We are getting some information from
               him, but [R.J.’s therapist] isn’t at that place right now to
               recommend visits start.

       Id. at 84. In its August 12, 2016 order, the court ruled to “deny [Father’s

       counsel’s] request for therapeutic parenting time for [Father] to begin,” to

       “leave my prior order in effect that that would be up to the service providers

       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-JC-246 | October 10, 2017   Page 10 of 20
       including [R.J.]’s therapist as to when and if that should occur and when

       they’re recommending it,” and approved without modification DCS’s proposed

       permanency plan for R.J. as adoption. Id. at 86. On November 4, 2016, DCS

       filed a progress report, which relates in part that “DCS respectfully submits that

       all services for [Father] be discontinued at this time.” Appellant’s Appendix

       Volume III at 101.


[15]   On December 15, 2016, DCS filed a modification report pursuant to Ind. Code

       § 31-34-23 that referred to “any Predispositional Report/Progress Report

       previously filed in this matter . . . for information prior to the dates covered by

       this report.” Id. at 105. The report recommended several changes to the plan of

       care, treatment, rehabilitation or placement of R.J. relating to Father, including

       that Father “sign any releases necessary for the Family Case Manager to

       monitor compliance with the terms of the court’s order,” “submit to random

       drug/alcohol screens within one hour of request,” “complete a psychological

       evaluation(s) as referred and approved by DCS,” “complete an anger

       management assessment and continue to comply with the ICPC process,” and

       “contact the Family Case Manager every week to allow the Family Case

       Manager to monitor compliance with this [CHINS] matter.” Id. at 106-107.

       On December 21, 2016, DCS filed a Motion to Modify Dispositional Decree.


[16]   On January 13, 2017, the court held a hearing on the motion, and counsel for

       DCS first requested that the court modify the dispositional decree, stating,


               upon receiving some of those reports, we have now seen the need
               for certain services to be ordered by the court. He is indicating

       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-JC-246 | October 10, 2017   Page 11 of 20
               that he wants to reunify with the child. The plan is adoption, but
               if he wants to reunify, DCS is here today to ask for the services
               that need to be in place in order for him to pursue that
               successfully in our opinion . . . .

       Transcript at 89. Next, counsel for DCS recommended the following services:

       (1) homebased therapy, because “both [Father] and [R.J.] have an extensive

       trauma history”; (2) random drug screens, because Father “admitted to daily

       marijuana use” in the assessment that was done at Southeast in Ohio in May of

       2016 and “R.J. deserves a home free from substance abuse”; (3) a psychiatric

       evaluation, because his therapist “indicated he thinks [it] is necessary”; (4)

       anger management, because it had “been attempted and unsuccessfully

       completed in the past,” and Father “repeatedly in his therapy sessions indicated

       his issues with anger and in terms of his relationship with [R.J.] and her trauma

       past”; and (5) Father’s Engagement, because “a Father Engagement worker

       would assist in developing a plan for [R.J.] that’s healthy.” Id. at 89-92.

       Guardian ad Litem Toby Gill stated that Father acknowledged marijuana use

       “in March of 2016 at a parenting assessment here in Indianapolis” and later

       clarified that the “marijuana recognitions occurred first of March and again in,

       [sic] for a subsequent assessment in Ohio in May.” Id. at 91.


[17]   Guardian ad Litem Gill also stated,


               I don’t believe the case requires us to order services in order for
               us to proceed on the termination of parental rights. That’s just
               straight up; however, and one of the reasons we didn’t is because
               [Father] agreed voluntarily to engage in these services. In fact, . .
               . [after the first TPR] mediation, he did call and say he wanted to

       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-JC-246 | October 10, 2017   Page 12 of 20
                sign consents . . . . He recognized the significant trauma that
                [R.J.] had gone through . . . . He did say he changed his mind.
                We gave him a chance to do a parenting assessment. He did the
                parenting assessment in March and it had significant concerns.
                [Father] did the psychological assessment. We have the
                psychological assessment and notes [sic] also significant
                concerns. That’s where we noted daily marijuana use.

       Id. at 93-94. Father’s counsel argued in response,


                [t]here is no reason for any of these services. They have no
                intention of reunifying [Father with R.J.] . . . Well, guess what
                the statute says. Those services have to be ordered. . . . Now, as
                far as these services, I don’t see why two years later this case,
                Judge, was filed in March of 2015. . . . I believe this
                modification petition is late. I don’t know how to get services. . .
                . Our TPR Trial is May 5th. . . . [Father] doesn’t have a prayer of
                getting these services completed.

       Id. at 109-111. Counsel for DCS answered by stating that the one question

       before the court was if the “services are rationally supportive,” that DCS has

       “attempted to work with [Father] and try to get services in place as he’s

       indicated that he wants to reunify and have gotten nowhere,” and that “at this

       point, this is an effort to continue to move this case along, because at this point,

       nothing is happening.” Id. at 112-113. Family case manager LaQuisha Glasco

       also testified, sharing that Father had not completed the ICPC.5

[18]   The court modified the dispositional decree and entered the following findings:




       5
         When the court followed up asking Father if Mother ever stopped Father from seeing R.J., Father
       responded that he “filed for a court date for custody of my child back in 2012, I believe, and that, because I
       brought that up, that enraged the mother.” Transcript at 118.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-JC-246 | October 10, 2017             Page 13 of 20
        1. On November 14, 2014 the Court issued a Parental
           Participation Order for [Father] requiring him to cooperate
           with the DCS of Indiana and Ohio regarding the ICPC
           process.
        2. [Father] did not fully comply with the ICPC but
           recommendations for him to participate in services were
           made.
        3. [Father] has waivered at times as to whether he is pursuing
           reunification with his child and so services have stopped and
           started. [Father] has indicated repeatedly that he wanted to
           sign consents.
        4. More recently [Father] has indicated that he would like to
           pursue reunification.
        5. [Father] is ordered to submit to random screens as he
           admitted in March and in May of 2016 to daily marijuana
           use.
        6. [Father] is ordered to complete a psychiatric evaluation as a
           psychiatric evaluation has been recommended by his current
           therapist.
        7. [Father] is ordered to participate in and successfully complete
           an Anger Management program as [Father] has
           acknowledged his issues with anger and those need to be
           addressed because of [R.J.]’s past trauma history.
        8. [Father] is ordered to participate in individual therapy to
           address his own past trauma history.

Appellant’s Appendix Volume II at 37. Additionally, the court issued a

modified parental participation decree ordering Father to “sign any necessary

releases,” “submit to random drug/alcohol screens,” “meet with

medical/psychiatric personnel, as directed by the medical/psychiatric

personnel,” that Father’s “therapist is authorized to communicate with [R.J]’s

therapist” and “to sign releases of information,” “to participate and successfully

complete an Anger Management program, and follow all recommendations,”

Court of Appeals of Indiana | Memorandum Decision 49A05-1702-JC-246 | October 10, 2017   Page 14 of 20
       and “become engaged in individual therapy referred by the Family Case

       Manager and follow all recommendations.” Appellant’s Appendix Volume III

       at 132.


                                                    Discussion

[19]   The issue is whether the trial court’s modification of the dispositional decree

       was clearly erroneous. When reviewing a modification of a dispositional

       decree “the court on appeal shall not set aside the findings or judgment unless

       clearly erroneous, and due regard shall be given to the opportunity of the trial

       court to judge the credibility of the witnesses.” In re T.S., 906 N.E.2d 801, 804

       (Ind. 2009) (citing Ind. Trial Rule 52). When the trial court enters findings of

       fact, the appellate court applies a two-tiered standard of review “considering

       first whether the evidence supports the findings and then whether the findings

       support the judgment.” Id.; see also In re A.C., 905 N.E.2d 456, 461 (Ind. Ct.

       App. 2009) (citing Parmeter v. Cass County Dep’t. of Child Servs., 878 N.E.2d 444,

       450 (Ind. Ct. App. 2007)). Findings are clearly erroneous when there are no

       facts or inferences drawn therefrom that support them. In re T.S., 906 N.E.2d at

       804 (citing Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996)). A judgment is

       clearly erroneous if the findings do not support the trial court’s conclusions or

       the conclusions do not support the resulting judgment. Id. We give due regard

       to the juvenile court’s ability to assess witness credibility and do not reweigh the

       evidence, instead considering the evidence most favorable to the judgment with

       all reasonable inferences drawn in favor of the judgment. In re A.C., 905 N.E.2d

       at 461 (citing Parmeter, 878 N.E.2d at 450).

       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-JC-246 | October 10, 2017   Page 15 of 20
[20]   Father argues that there was no evidence presented at the hearing on DCS’s

       Motion to Modify to support the court’s new parental participation decree.

       Citing In re A.C., 905 N.E.2d 456, he argues that a trial court must base its

       decision regarding disposition on admitted evidence rather than the arguments

       of counsel and that, at the hearing, neither party admitted evidence upon which

       the trial court could base its decision, specifically that DCS called no witnesses

       and did not move to admit any exhibits and that the Guardian Ad Litem called

       no witnesses and never admitted into evidence its sole exhibit.


[21]   DCS argues the modification of the dispositional decree was not clearly

       erroneous given Father’s failure to comply with the ICPC, recommendations

       from his parenting assessments, and R.J.’s prior exposure to drug use.

       Specifically, DCS argues that Father disregards the evidence that came in

       through the modification report and the progress reports which it incorporates;

       that modification hearings are like dispositional hearings and unlike formal

       evidentiary hearings and, thus, the trial court may consider any evidence of

       probative value even if it would otherwise be excluded under rules of evidence;

       and that the “court ordered services were necessary in order to ensure that

       Father was participating in the services recommended to him in the parenting

       assessment so that he could work towards reunification with Child.” Appellee’s

       Brief at 15.


[22]   DCS’s authority to request a modification of the dispositional decree is

       governed by Ind. Code § 31-34-23-1(2)(C), which provides that “[w]hile the

       juvenile court retains jurisdiction under IC 31-30-2, the juvenile court may

       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-JC-246 | October 10, 2017   Page 16 of 20
       modify any dispositional decree: . . . upon the motion of . . . the attorney for the

       department [of Child Services] . . . .” As the Indiana Supreme Court further

       explained in In re T.S., 906 N.E.2d at 803,


               section 31-34-23-3(b) requires the juvenile court to hold a hearing
               on such request, and section 31-34-23-4 provides that section 31-
               34-19 “appl[ies] to the preparation and use of a modification
               report” and that DCS shall prepare a report in such a hearing.
               What may have originally begun as a periodic review became a
               modification hearing on the juvenile court’s initial order of
               disposition.

       At the time when the case here was being tried, as well as at the time when this

       court decided In re A.C., 905 N.E.2d 456, Ind. Code § 31-34-20-3 provided in

       part that:

               If the juvenile court determines that a parent, guardian, or
               custodian should participate in a program of care, treatment, or
               rehabilitation for the child, the court may order the parent,
               guardian, or custodian to do the following:
                       (1) Obtain assistance in fulfilling the obligations as a
                       parent, guardian, or custodian.
                       (2) Provide specified care, treatment, or supervision for the
                       child.
                       (3) Work with a person providing care, treatment, or
                       rehabilitation for the child.
                       (4) Participate in a program operated by or through the
                       department of correction.

       (Subsequently amended by Pub. L. No. 183-2017 (eff. July 1, 2017).


[23]   In In re A.C., a mother argued that there was insufficient evidence to support the

       juvenile court’s participation decree ordering her to participate in and

       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-JC-246 | October 10, 2017   Page 17 of 20
       successfully complete a drug and alcohol assessment, including intensive

       outpatient treatment or inpatient treatment as recommended by evaluations.

       905 N.E.2d at 464-465. In its decision, the court cited Ind. Code § 31-34-20-3

       and held that, “[a]lthough the juvenile court has broad discretion in

       determining what programs and services in which a parent is required to

       participate, the requirements must relate to some behavior or circumstance that

       was revealed by the evidence.” Id. at 464. The court observed that the juvenile

       court found that the mother “agreed that she needed the services being

       proposed by the [DCS] but disagreed that she needed any substance evaluation

       services” and there was no other reference to any alleged substance abuse in the

       findings of fact or conclusions of law. Id. The court stated: “In addition, after

       reviewing the record, we are unable to find any allegation or even an indication

       that [the mother] has a substance abuse problem.” Id. The court concluded

       that the evidence did not support the juvenile court’s participation decree

       requiring the mother to submit to a drug and alcohol assessment, random drug

       testing, and substance abuse treatment. Id.


[24]   Here, unlike in A.C., the record reveals that the requirements of the modified

       participation decree relate to the behavior and circumstances revealed by the

       evidence. Both parties agree that the juvenile court is able to admit the

       dispositional report of DCS at a dispositional hearing, even if the report

       includes hearsay. See In re K.D., 962 N.E.2d 1249, 1259 (Ind. 2012) (citing In re

       C.B., 865 N.E.2d 1068, 1072 (Ind. Ct. App. 2007)). Hearsay is “admissible in

       dispositional hearings, and subsequent hearings to modify a disposition,


       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-JC-246 | October 10, 2017   Page 18 of 20
       because ‘[e]xcluding hearsay evidence . . . would in many cases disserve the

       child by excluding relevant information that might support a less restrictive

       disposition.’” N.L. v. State, 989 N.E.2d 773, 779 (Ind. 2013) (quoting In re

       L.J.M., 473 N.E.2d 637, 643 (Ind. Ct. App. 1985)). The trial court may

       consider “evidence of probative value even if the [evidence] would otherwise be

       excluded.” In re K.D., 962 N.E.2d at 1259 (citing Ind. Code § 31-34-19-2(a)); see

       also N.L., 989 N.E.2d at 779 (citing for the same proposition “I.C. § 31-37-18-

       2(a) (governing dispositional hearings)” and “I.C. § 31-37-21-3(a) (governing

       reports prepared for review or modification hearings)”).


[25]   DCS’s December 21, 2016 Motion to Modify Dispositional Decree referenced

       the modification report filed on December 15, 2016, which in turn referenced

       any “Predispositional Report/Progress Report previously filed in this matter . . .

       for information prior to the dates covered by this report.” Appellant’s

       Appendix Volume III at 105. As set forth above and in the record, numerous

       progress reports filed by DCS discuss services ordered with respect to Father.

       Additionally, the record reveals that, at the January 13, 2017 hearing, the

       Guardian ad Litem stated that Father “acknowledged [the marijuana use] prior

       to that in March of 2016 at a parenting assessment here in Indianapolis,” and

       later clarified that the “marijuana recognitions occurred first of March and

       again in, for a subsequent assessment in Ohio in May.” Id. at 91. Also, family

       case manager Glasco stated that Father did not complete the requirement




       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-JC-246 | October 10, 2017   Page 19 of 20
       presented in the original November 14, 2014 parental participation decree.6

       Based upon the record, we conclude that the evidence supports the

       requirements of the modified participation decree.


                                                      Conclusion

[26]   For the foregoing reasons, we affirm the trial court’s modification of the

       dispositional decree.


[27]   Affirmed.


[28]   Najam, J., and Kirsch, J., concur.




       6
         Progress reports in the record indicate that DCS received no contact from Father for a period of time greater
       than a year, spanning from September 26, 2014, to November 4, 2015.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-JC-246 | October 10, 2017           Page 20 of 20
