                                                                               FILED
                                                                         Jan 30 2019, 9:23 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Danielle L. Gregory                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                       Attorney General of Indiana
                                                            Frances Barrow
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of M.W. (Minor                                January 30, 2019
Child), A Child In Need of                                  Court of Appeals Case No.
Services,                                                   18A-JC-1534
and                                                         Appeal from the Marion Superior
                                                            Court
T.A. (Mother),
                                                            The Honorable Marilyn A.
Appellant-Respondent,                                       Moores, Judge
                                                            The Honorable Jennifer Hubartt,
        v.                                                  Magistrate
                                                            Trial Court Cause No.
Indiana Department of                                       49D09-1804-JC-966
Child Services,
Appellee-Petitioner



Baker, Judge.



Court of Appeals of Indiana | Opinion 18A-JC-1534 | January 30, 2019                             Page 1 of 10
[1]   The sum total of the allegations in this Child in Need of Services (CHINS) case

      are as follows: two teenaged sisters got into a physical altercation and their

      mother sought help from law enforcement to deescalate the situation. One of

      the sisters appears to have some emotional and/or behavioral problems and the

      two girls need help to learn how to communicate in a healthier way. The

      mother has agreed that the family and her children need therapeutic support

      and has taken steps to enroll the family in those needed services. Without far

      more compelling evidence than appears in this case, these facts cannot, and do

      not, support a CHINS adjudication.


[2]   T.A. (Mother) appeals the juvenile court’s order finding M.W. (Child) to be a

      CHINS. Mother argues that there is insufficient evidence supporting the

      CHINS adjudication. We agree, and reverse.


                                                          Facts
[3]   Mother has three minor children: Child, L.F. (Sister), and J.A. 1 In 2011-2012,

      Child’s father was kidnapped, remained missing for fifteen months, and found

      murdered when Child was about eleven years old. Mother sought out grief

      counseling for Child, who completed the service successfully. In 2017, Mother

      began individual therapy and was still participating with that service at the time

      of the CHINS hearing in this case. Mother and her three children live in a

      clean, furnished, appropriate three-bedroom home in Indianapolis; they had




      1
          The children have different fathers, none of whom are participating in this appeal.


      Court of Appeals of Indiana | Opinion 18A-JC-1534 | January 30, 2019                      Page 2 of 10
      lived there for approximately four years at the time of the CHINS hearing.

      Mother has part-time employment at a childcare facility; she works part time

      because a disability prevents her from retaining a full-time job.


[4]   Child and Sister have a volatile relationship. Child also has a history of

      behavioral problems, including marijuana use and suicidal ideations, and has

      run away from home in the past, though none of these prior incidents led to

      involvement with the Department of Child Services (DCS). On March 31,

      2018, Child and Sister got into an argument that escalated into a physical

      altercation. Mother separated the girls, sending them to different parts of the

      house, but Child ran out of her room and into Sister’s room, where they began

      to fight again. J.A. and Mother both tried unsuccessfully to break up the fight.

      Mother then called the police, seeking help to deescalate the situation.


[5]   Indianapolis Metropolitan Police Department (IMPD) Officer Holly Rapier 2

      responded to the dispatch. When Officer Rapier entered the home, Mother

      said, “‘I can’t do this anymore, I can’t do this anymore.’” Tr. Vol. II p. 35.

      The officer saw Child, who had scratches on her face, and called an ambulance,

      which transported her to a hospital. For reasons not revealed at the CHINS

      hearing, Officer Rapier and another officer on the scene placed Mother in




      2
       Officer Rapier is identified in the transcript with a first name of “Holly,” tr. vol. II p. 33, and in the CHINS
      order with a first name of “Ha’Le,” appellant’s app. vol. II p. 100. We are unable to discern which spelling is
      correct.

      Court of Appeals of Indiana | Opinion 18A-JC-1534 | January 30, 2019                                Page 3 of 10
      handcuffs and arrested her for domestic battery. The charge was later

      dismissed.


[6]   DCS employee Marci Mettler was sent to the home to assess the situation and

      ensure the children were cared for after Mother was arrested. Mettler removed

      the children, placing J.A. and Sister in relative care and Child in emergency

      shelter care.


[7]   On April 3, 2018, DCS filed a petition alleging the children to be CHINS. 3

      Over the course of the next month, Mother voluntarily participated in multiple

      child and family team meetings, family therapy, and a parenting assessment,

      and ensured that Child and Sister began participating in individual therapy.

      Mother also provided DCS with verification that she was already participating

      with individual therapy.


[8]   On April 30, 2018, J.A. and Sister were returned to Mother’s care and custody.

      Although Mother and Child both repeatedly asked that Child be permitted to

      return home, Child continued to be placed out of the home. 4


[9]   The CHINS factfinding hearing took place on May 24, 2018. At that hearing,

      the following testimony occurred:


            • Family Case Manager (FCM) Shanika Carter testified that she believed
              Child, Sister, and Mother needed to participate with individual and



      3
          DCS later dismissed J.A. from the petition.
      4
          At some point, Child was moved from emergency shelter care to relative care.


      Court of Appeals of Indiana | Opinion 18A-JC-1534 | January 30, 2019               Page 4 of 10
        family therapy and that all three had been participating with those
        services. FCM Carter opined that DCS’s continued involvement was
        needed because Mother was unable to provide a “safe and emotionally
        stable environment.” Tr. Vol. II p. 77. FCM Carter opined that Child
        was emotionally unstable but admitted that Child had completed a
        clinical assessment and had not been diagnosed with any disorders. Id.
        at 83.

    • Charmaine Washington, who provided family therapy, testified that her
      sessions with the family had been very productive. She focused on
      providing Child and Sister with communication strategies and Mother
      with tools to express her love for both of her daughters without causing
      envy between the two. Washington believed that the therapy was
      helping the family and that the therapy should continue. She did not
      believe that it was time yet for Child to return to the home because she
      and Sister needed more time to bond and address their underlying issues.
      Mother was compliant, positive, and “willing to fix whatever [] problem
      her family might have[.]” Id. at 99. Mother is a “very loving Mom” and
      is “willing to do whatever she has to do to make sure that her children
      get what they need emotionally, physically.” Id. at 101. Washington
      helped the family create a safety plan for what to do if Child and Sister
      got into another heated argument and believed that Mother would
      comply with the safety plan. Mother agreed to continue with family
      therapy and individual therapy for the girls if the CHINS case closed. Id.
      at 102. Washington did not believe that there was a threat to either
      Child or Sister so long as family therapy remained in place.

    • Erin Bognar, who provided individual therapy for Child, testified that
      therapy was going well and that she believed it should continue. Bognar
      did not believe it was yet time for Child to return home.

    • Joy Boyd provided the parenting assessment for Mother. She had no
      concerns about Mother’s parenting skills and found that the family was
      “[p]retty normal” and “just functioning . . . as a family.” Id. at 119.
      Mother interacts well with her children and Boyd had no safety concerns
      based on Mother’s parenting skills.



Court of Appeals of Indiana | Opinion 18A-JC-1534 | January 30, 2019   Page 5 of 10
           • Richelyn Wood supervised the visits between Mother and her children.
             She found that the interaction was “great,” that Mother is an appropriate
             disciplinarian and has “great parenting skills.” Id. at 127.

           • Mother testified that she likes family therapy and that, while it is not
             convenient because of their busy schedule, “I know there’s a problem
             and I love my kids and I think they do need help. . . . I don’t need
             nobody to hold my hand and force my kids to get help because I know.”
             Id. at 141. Mother had already begun the process of scheduling
             individual therapy for her children at the center where she received her
             therapy. She has insurance to cover the cost of therapy for everyone and
             knows how to use school resources for the children if needed.

[10]   On June 11, 2018, the juvenile court issued an order finding that Sister is not a

       CHINS but that Child is. A dispositional hearing took place on June 18, 2018. 5

       Mother now appeals.


                                      Discussion and Decision
[11]   Our Supreme Court has explained the nature of a CHINS proceeding and

       appellate review of a CHINS finding as follows:


               A CHINS proceeding is a civil action; thus, “the State must
               prove by a preponderance of the evidence that a child is a
               CHINS as defined by the juvenile code.” In re N.E., 919 N.E.2d
               102, 105 (Ind. 2010). We neither reweigh the evidence nor judge
               the credibility of the witnesses. Egly v. Blackford County Dep’t of
               Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We consider
               only the evidence that supports the trial court’s decision and
               reasonable inferences drawn therefrom. Id. We reverse only



       5
        On July 25, 2018, DCS closed the CHINS case. This does not render the matter moot, however, as a
       CHINS adjudication can have professional and other ramifications for parents.

       Court of Appeals of Indiana | Opinion 18A-JC-1534 | January 30, 2019                       Page 6 of 10
               upon a showing that the decision of the trial court was clearly
               erroneous. Id.


               There are three elements DCS must prove for a juvenile court to
               adjudicate a child a CHINS. DCS must first prove the child is
               under the age of eighteen; DCS must prove one of eleven
               different statutory circumstances exist that would make the child
               a CHINS; and finally, in all cases, DCS must prove the child
               needs care, treatment, or rehabilitation that he or she is not
               receiving and that he or she is unlikely to be provided or accepted
               without the coercive intervention of the court. In re N.E., 919
               N.E.2d at 105.


       In re K.D., 962 N.E.2d 1249, 1253-54 (Ind. 2012) (footnote omitted).


[12]   Here, DCS alleged that Child was a CHINS pursuant to Indiana Code section

       31-34-1-1, which provides as follows:


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

               (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.




       Court of Appeals of Indiana | Opinion 18A-JC-1534 | January 30, 2019           Page 7 of 10
       Our Supreme Court has interpreted this provision to require “three basic

       elements: that the parent’s actions or inactions have seriously endangered the

       child, that the child’s needs are unmet, and (perhaps most critically) that those

       needs are unlikely to be met without State coercion.” In re S.D., 2 N.E.3d 1283,

       1287 (Ind. 2014).


[13]   Quite frankly, we are stunned that the juvenile court found Child to be a

       CHINS. There is a dearth of evidence supporting a conclusion that her mental

       or physical condition was seriously impaired or seriously endangered as a result

       of anything done or not done by Mother. Yes, it is apparent that Child has

       serious behavioral issues and needs therapeutic support (though she has no

       diagnoses or prescribed medication), but that, alone, does not support a

       conclusion that she was seriously impaired or seriously endangered. Moreover,

       after DCS became involved, Mother agreed that Child needs therapy and

       intended to continue providing it. Additionally, there was one incident of Child

       and Sister engaging in a physical altercation. Again, the family needs

       continued therapeutic support to learn to communicate more skillfully, but this

       one singular incident—which Mother did her very best to deescalate by seeking

       the help of law enforcement—does not support a CHINS finding.


[14]   Leading up to the CHINS hearing, Mother was not ordered to participate with

       services, but she participated—and participated well, and in good faith—with

       every single service requested by DCS, ensuring that her children did the same.

       When the CHINS case opened, she was already participating in therapy on her

       own, and in the past, she had enrolled Child in grief counseling. Mother

       Court of Appeals of Indiana | Opinion 18A-JC-1534 | January 30, 2019     Page 8 of 10
       admitted that it is challenging to fit therapy into their busy family life but stated

       that she realizes that her children need further individual therapy and even

       found that she liked family therapy. Mother was able and willing to continue to

       provide all needed therapeutic support for the family, and had already begun

       setting up individual therapy sessions for Child and Sister at the time of the

       CHINS hearing.


[15]   It is undisputed that Mother is a loving, engaged, and appropriate parent. It is

       undisputed that her home is clean, well furnished, and appropriate. It is

       undisputed that she is employed and able to provide adequate financial support

       for her children.


[16]   The services provided by DCS while the CHINS case was pending gave the

       family a running start. The services were helping, and both Mother and Child

       seemed to realize it. From the outset, by calling the police, Mother showed that

       she simply needed some help—and she got it, through the services provided by

       DCS. By the time of the CHINS hearing, it was readily apparent that Child

       was not seriously endangered and, even more critically, that the coercive

       intervention of the court was not required. Under these circumstances, the

       juvenile court erred by finding Child to be a CHINS.


[17]   The Marion County Superior Court has had multiple CHINS adjudications

       reversed in recent years for a notable lack of sufficient evidence. E.g., In re K.S.,

       78 N.E.3d 740, 742 (Ind. Ct. App. 2017) (finding that there was no evidence,

       “let alone sufficient evidence,” supporting CHINS adjudication); In re E.G. and


       Court of Appeals of Indiana | Opinion 18A-JC-1534 | January 30, 2019        Page 9 of 10
       H.G., No. 49A02-1506-JC-488 (Ind. Ct. App. Feb. 12, 2016) (finding that the

       evidence, “even viewed most favorably to the judgment, cannot reasonably

       support an inference that Mother was likely to need the court’s coercive

       intervention for any reason”); In re S.M., J.M., A.M., and H.G., 45 N.E.3d 1252

       (Ind. Ct. App. 2015) (finding that “the record is devoid of evidence supporting”

       CHINS adjudication). We encourage all parties involved in the CHINS process

       in Marion County, including DCS, the Public Defender Agency, the trial court,

       and the magistrates, to be mindful of this Court’s guidance when determining

       whether to pursue a CHINS case and whether to make a CHINS adjudication.

       There are unquestionably families who truly need the support of a CHINS case,

       and all will be better served if the involved governmental and judicial entities

       focus their finite resources on the families who need them, rather than on the

       families who do not.


[18]   The judgment of the juvenile court is reversed.


       May, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 18A-JC-1534 | January 30, 2019     Page 10 of 10
