MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       Dec 21 2016, 7:17 am
court except for the purpose of establishing
                                                                     CLERK
the defense of res judicata, collateral                          Indiana Supreme Court
                                                                    Court of Appeals
estoppel, or the law of the case.                                     and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy E. Stucky                                        Gregory F. Zoeller
Stucky, Lauer & Young, LLP                               Attorney General of Indiana
Fort Wayne, Indiana
                                                         Robert J. Henke
                                                         David E. Corey
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of E.J-H. & A.J-H.                         December 21, 2016
(Minor Children), Children in                            Court of Appeals Case No.
Need of Services,                                        02A03-1607-JC-1633
                                                         Appeal from the Allen Superior
and                                                      Court
                                                         The Honorable Charles F. Pratt,
G.J. (Mother),                                           Judge
Appellant-Respondent,                                    The Honorable Sherry A. Hartzler,
                                                         Magistrate
        v.
                                                         Trial Court Cause Nos.
                                                         02D08-1512-JC-633, -634
The Indiana Department of
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 02A03-1607-JC-1633 | December 21, 2016   Page 1 of 10
      Crone, Judge.



                                               Case Summary

[1]   G.J. (“Mother”) appeals trial court orders adjudicating her two minor children,

      E.J-H. and A.J-H. (collectively “the Children”), as children in need of services

      (“CHINS”). She challenges the sufficiency of the evidence to support the

      CHINS determination. Concluding that the evidence is insufficient to support

      the CHINS determination, we reverse.


                                 Facts and Procedural History
[2]   Mother and boyfriend E.M.H. (“Father”) are the parents of E.J-H., born

      August 4, 2014, and A.J-H., born September 11, 2015. The couple had a

      tumultuous relationship that resulted in physical altercations in the presence of

      the Children. Father’s criminal history included a felony domestic battery

      conviction (involving a female victim other than Mother) and misdemeanor

      convictions for resisting law enforcement and carrying a handgun without a

      license. He had one probation violation and had previously been the subject of

      a no-contact order in conjunction with a battery and strangulation charges

      involving another female victim. 1




      1
          The battery and strangulation charges were dismissed.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1607-JC-1633 | December 21, 2016   Page 2 of 10
[3]   On November 15, 2015, Mother drove to a gas station to confront Father about

      damage he had caused to her vehicle. An argument ensued in the parking lot,

      and Father struck Mother in the head, nose, eyes, jaw, and neck. Meanwhile,

      two-month-old A.J-H., who was sitting inside Mother’s vehicle, was splattered

      with Mother’s blood, which also left a trail on the pavement. Friends

      transported Mother to a nearby hospital, where she was treated for a

      concussion, abrasions, bruising to her eyes, jaw, and head, and a fractured

      nose. Her eyes were swollen shut, and she required stitches above her eyebrow.

      She relayed to emergency room personnel her fear of Father, and police were

      called.


[4]   The Allen County Department of Child Services (“DCS”) received a report

      concerning the incident, and on November 17, 2015, family case manager

      (“FCM”) Louise Deitzer Hensley met with Mother and developed a safety plan

      for Mother and the Children. FCM Deitzer testified that she had attempted to

      locate Father to “get his side of the story” but that she had been unable to locate

      him. Tr. at 26. Mother and the Children were residing at the home of Mother’s

      grandparents. Mother agreed to a safety plan, under which she would obtain

      protective orders prohibiting contact between Father and her and Father and

      the Children, pursue the filing of criminal charges against Father, and complete

      domestic violence counseling. FCM Deitzer testified that on December 10,

      2015, Mother informed her that she would not be going forward with the safety

      plan. Id. at 32-33.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1607-JC-1633 | December 21, 2016   Page 3 of 10
[5]   On January 11, 2016, the trial court found probable cause for a CHINS

      determination, and DCS filed a CHINS petition. Two weeks later, DCS filed

      an amended CHINS petition, alleging endangerment to the Children based on

      the parents’ history of confrontation and physical altercations. The trial court

      issued a provisional order on February 3, 2016, in which it included provisional

      orders for services, including Mother’s participation in and successful

      completion of domestic violence counseling through Phoenix Associates and

      obtaining protective orders ensuring no contact between Father and the

      Children. On March 23, 2016, Mother obtained a protective order for herself,

      and on April 6, 2016, she obtained protective orders for the Children. On April

      7, 2016, Mother filed a motion to dismiss the CHINS petition. At the outset of

      the April 21, 2016 factfinding hearing, the trial court heard argument on

      Mother’s motion to dismiss. It denied the motion and conducted a full

      factfinding hearing. At the time of the factfinding, Mother had participated in

      the domestic violence counseling but apparently had not completed it. FCM

      Cynthia Gardner, who handled Mother’s case during the pendency of the

      CHINS petition, testified that although she would advise Mother to complete

      her counseling, she “would not have any concerns” if the services were

      discharged going forward. Id. at 58. Father failed to attend any of the CHINS

      hearings, and his whereabouts were unknown throughout the proceedings.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1607-JC-1633 | December 21, 2016   Page 4 of 10
[6]   On June 14, 2016, the trial court issued an order with findings of fact and

      conclusions thereon, adjudicating the Children as CHINS. 2 Mother appeals the

      CHINS determination. Additional facts will be provided as necessary.


                                     Discussion and Decision
[7]   Mother challenges the sufficiency of the evidence to support the CHINS

      determination. When reviewing the sufficiency of evidence, we give due regard

      to the trial court’s ability to assess the credibility of witnesses. In re Des.B., 2

      N.E.3d 828, 836 (Ind. Ct. App. 2014). We neither reweigh evidence nor judge

      witness credibility; rather, we consider only the evidence and reasonable

      inferences most favorable to the trial court’s decision. K.D., 962 N.E.2d 1249,

      1253 (Ind. 2012). Where the trial court issues findings of fact and conclusions

      thereon, we apply a two-tiered standard of review. In re R.P., 949 N.E.2d 395,

      400 (Ind. Ct. App. 2011). We consider first whether the evidence supports the

      findings and then whether the findings support the judgment. Id. We will set

      aside the trial court’s findings and conclusions only if they are clearly erroneous

      and a review of the record leaves us firmly convinced that a mistake has been

      made. Id. “Findings are clearly erroneous only when the record contains no

      facts to support them either directly or by inference.” K.B. v. Indiana Dep’t of

      Child Servs., 24 N.E.3d 997, 1001-02 (Ind. Ct. App. 2015) (citation omitted). “A




      2
        On July 11, 2016, the trial court issued a dispositional order. Mother has not included a copy of this order
      in her appendix.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1607-JC-1633 | December 21, 2016          Page 5 of 10
       judgment is clearly erroneous if it relies on an incorrect legal standard.” Id. at

       1002.


[8]    In a CHINS proceeding, DCS bears the burden of proving by a preponderance

       of the evidence that a child meets the statutory definition of a CHINS. In re

       N.E., 919 N.E.2d 102, 105 (Ind. 2010). To meet its burden of establishing

       CHINS status, the State must prove that the child is under age eighteen,


               (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.

       Ind. Code § 31-34-1-1.


[9]    Although the acts or omissions of one or both parents can cause a condition

       that creates the need for court intervention, the CHINS designation focuses on

       the condition of the child rather than on an act or omission of the parent(s).

       N.E., 919 N.E.2d at 105. In other words, despite a “certain implication of

       parental fault in many CHINS adjudications, the truth of the matter is that a

       CHINS adjudication is simply that – a determination that a child is in need of

       services.” Id. (citations omitted).


[10]   As part of the CHINS order, the trial court found, in pertinent part,
       Court of Appeals of Indiana | Memorandum Decision 02A03-1607-JC-1633 | December 21, 2016   Page 6 of 10
        2. The Court finds that it is undisputed that Mother suffered a
        brutal attack on November 15, 201[5] at the hands of her
        boyfriend, Father, in which she was violently struck about the
        head, face and body resulting in contusions, a fractured nose,
        swollen eyes and a concussion.

        ….

        4. The Court finds that immediately preceding the attack,
        Mother had driven with A.J-H. to a gas station to confront
        Father about damage to her car. The Court finds that during the
        course of the confrontation Mother pushed Father who
        proceeded to brutally attack Mother at the gas station.

        5. The Court finds that it is also undisputed that on November
        15, 2015, this brutal attack occurred in the presence of A.J-H.,
        who was spattered with Mother’s blood during the course of the
        attack.

        6. From the testimony of DCS FCM Deitzer, the Court finds
        that during the course of the investigation, Mother was offered
        multiple services to ensure the safety of Mother and the Children.
        These services included victim[’]s assistance services, victim[’]s
        services through the Center for Non Violence, and other
        community resources to address domestic violence. Further,
        Mother entered into a safety plan in which she agreed to obtain a
        Protective Order.

        7. From the testimony of DCS FCM Deitzer, the Court finds
        that by December 10, 2015 Mother reported she was no longer
        willing to obtain a protective order. Additionally, Mother was
        not readily responding to investigative inquiries from DCS to
        ensure Mother’s compliance with the safety plan.

        8. DCS continued to attempt to secure supportive and protective
        services for Mother in an attempt to avoid the coercive
        intervention of the Court. However, by January 2016 DCS

Court of Appeals of Indiana | Memorandum Decision 02A03-1607-JC-1633 | December 21, 2016   Page 7 of 10
        concluded that Mother was minimizing the threat to her safety
        and the Children’s safety. DCS further concluded that Mother
        had violated the safety plan by failing to obtain a Protective
        Order as previously agreed.

        9. Given DCS’s assessment that Mother had not taken steps to
        ensure her safety and the safety of the Children, DCS initiated
        Court proceedings and requested a finding of probable cause that
        the Children were CHINS.

        10. The Court finds that despite the finding of probable cause
        and the intervention of these proceedings, Mother failed to file
        Petitions for Orders of Protection until March 23, 2016 for
        herself, and April 6, 2016 for the Children. The Court would
        further note that Mother had not taken these steps for over a
        month after this matter was scheduled for trial. The Court finds
        that this demonstrates Mother[’]s lack of insight and her
        willingness to take appropriate measures to ensure the safety and
        protection of herself and the Children.

        11. The Court finds that Mother continued to demonstrate a lack
        of insight by failing to take advantage of and enroll in counseling
        until after the initiation of these court proceedings.


        12. The Court further notes that from the time of the attack on
        November 15, 2015 up to the date of the trial, Father had not
        been apprehended by law enforcement and his whereabouts were
        unknown. Therefore, his access to Mother and the Children was
        without limitation until the legal prohibition obtained by the
        issuance of the protective orders well over three months after the
        attack.

        13. The Court finds that since Mother has engaged in weekly
        counseling with Phoenix and Associates to address the domestic
        violence, she has been compliant with services and all Orders of
        the Court. The Court finds that at the time of these proceedings,

Court of Appeals of Indiana | Memorandum Decision 02A03-1607-JC-1633 | December 21, 2016   Page 8 of 10
               Mother had not completed her counseling with Phoenix and
               Associates.


       Appellant’s App. at 57-58.


[11]   Pursuant to the CHINS statute, DCS had the burden of establishing that the

       Children were seriously endangered as a result of Mother’s inability or refusal

       to supply them with necessary “food, clothing, shelter, medical care, education,

       or supervision” and that such care or treatment is “unlikely without the

       coercive intervention of the court.” Ind. Code § 31-34-1-1. The undisputed

       evidence shows that the Children were well cared for in their great

       grandparents’ home by both Mother and the great grandparents. As for

       supervision and measures to ensure their safety, it is undisputed that Mother

       obtained protective orders for herself and the Children weeks before the

       factfinding hearing. Appellant’s App. at 49, 51, 53. DCS characterizes Mother

       as wavering in her resolve to protect the Children and address her own issues as

       a victim of domestic violence. While we agree with DCS that Mother was less

       than diligent in obtaining the protective orders, she nevertheless did so before

       the factfinding, thereby rendering the coercive intervention of the court

       unnecessary. See In re S.D., 2 N.E.3d 1283, 1288-89 (Ind. 2014) (evidence held

       insufficient to support CHINS determination despite some evidence of mother’s

       initial reticence to comply with services and lack of diligence in attending to

       child’s medical needs).


[12]   As for Mother’s efforts to address her issues as a domestic violence victim, the

       undisputed evidence shows that she participated in domestic violence
       Court of Appeals of Indiana | Memorandum Decision 02A03-1607-JC-1633 | December 21, 2016   Page 9 of 10
       counseling at Phoenix Associates. Although she apparently had not completed

       her counseling as of the date of the factfinding, FCM Garner testified that she

       “would not have any concerns” even if the counseling services were discharged

       without Mother having completed them. Tr. at 58.


[13]   Simply put, Mother took the legal steps necessary to prevent Father from

       endangering the Children and took steps to address her issues as a victim of

       domestic violence. There is no evidence that Mother engaged in conduct that

       would otherwise jeopardize the Children’s safety while they were in her care

       and residing at her grandparents’ home. During the pendency of the CHINS

       proceedings, Father’s whereabouts were unknown, and the record is devoid of

       evidence indicating that he attempted to contact Mother or the Children

       between November 2015 and the date of the factfinding. In short, there was no

       evidence of any ongoing threat from which Mother had failed to protect the

       Children. Based on the foregoing, we conclude that the evidence is insufficient

       to support the CHINS determination. Consequently, we reverse and vacate the

       CHINS determination.


[14]   Reversed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1607-JC-1633 | December 21, 2016   Page 10 of 10
