MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                   Sep 30 2019, 9:21 am

court except for the purpose of establishing                                     CLERK
                                                                             Indiana Supreme Court
the defense of res judicata, collateral                                         Court of Appeals
                                                                                  and Tax Court
estoppel, or the law of the case.


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



                                          IN THE
    COURT OF APPEALS OF INDIANA

In re the Matter of:                                     September 30, 2019
Z.R. (Child in Need of Services)                         Court of Appeals Case No.
                                                         19A-JC-720
and
                                                         Appeal from the Marion Superior
D.S. (Mother),                                           Court
Appellant-Respondent,                                    The Honorable Mark Jones, Judge
        v.                                               The Honorable Rosanne Ang,
                                                         Magistrate
Indiana Department of Child                              Trial Court Cause No.
Services,                                                49D15-1809-JC-2318
Appellee-Petitioner,
and

Child Advocates, Inc.,
Guardian Ad Litem.


Court of Appeals of Indiana | Memorandum Decision 19A-JC-720 | September 30, 2019                Page 1 of 16
      Robb, Judge.



                                     Case Summary and Issue
[1]   D.S. (“Mother”) appeals the juvenile court’s determination that her minor

      child, Z.R. (“Child”), is a child in need of services (“CHINS”). Mother raises

      two issues for our review, which we consolidate and restate as a single issue:

      whether the juvenile court’s CHINS determination is clearly erroneous.

      Concluding the juvenile court’s CHINS determination is clearly erroneous, we

      reverse the CHINS adjudication.



                                 Facts and Procedural History
[2]   Mother and T.R. (“Father”) (collectively, “Parents”) are the biological parents

      of Child, born June 30, 2015.1 Mother has legal custody of Child,2 and Father

      has primary physical custody of Child. Father and Child reside with L.R.,

      Child’s paternal grandfather, at his home, and Mother lives alone in an

      apartment.


[3]   On the evening of September 12, 2018, Mother arrived at her apartment to find

      Father inside. Mother asked Father to leave her home, but he refused. A verbal

      and physical altercation ensued. As Mother tried to escape from the apartment,




      1
          Father does not participate in this appeal.
      2
          Mother also has another child who is subject to a separate CHINS proceeding and is not in her care.


      Court of Appeals of Indiana | Memorandum Decision 19A-JC-720 | September 30, 2019                 Page 2 of 16
      Father threw her to the ground. Once Mother escaped, she ran outside and

      called the police.


[4]   Officer Lovepreet Singh of the Indianapolis Metropolitan Police Department

      arrived at the scene, and at that time Mother and Father were both outside

      alone. Mother told Officer Singh that she had been assaulted by Father and the

      assault initially occurred inside her apartment where there was a child. He

      observed bruises and minor cuts on both Mother and Father but was unable to

      gather information on whether the cuts came from this incident. During Officer

      Singh’s investigation, he did not observe any children. Officer Singh arrested

      Father, but criminal charges filed as a result of the incident were later

      dismissed. DCS did not come to the scene, but later got involved because of the

      nature of the police report.


[5]   On September 14, DCS family case manager (“FCM”) Jairo Sanchez assessed

      the family at L.R.’s home, but Mother declined to speak with him. That same

      day, because of the alleged domestic violence, Child was removed from Mother

      and Father’s care and placed with L.R., where she was already living. The

      juvenile court ordered Father to find an alternate place of residence; Father

      began living with a friend. See Appellant’s Appendix, Volume II at 60.


[6]   On September 17, FCM Sanchez spoke with Mother at the local DCS office

      and she denied that incidents of domestic violence between her and Father had

      ever occurred around Child. Mother stated the child named in the police report




      Court of Appeals of Indiana | Memorandum Decision 19A-JC-720 | September 30, 2019   Page 3 of 16
      was not Child, and she refused to offer any other information regarding the

      identity of the other child.


[7]   On September 18, DCS filed a verified petition alleging Child to be a CHINS,

      as defined in Indiana Code section 31-34-1-1, that read in relevant part as

      follows:


              Inability, Refusal or Neglect, I.C. 31-34-1-1: 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 the
              child needs care, treatment, or rehabilitation that the child is not
              receiving; and is unlikely to be provided or accepted without the
              coercive intervention of the Court.


      Id. at 25. DCS specifically alleged Parents were unable to provide Child with an

      environment free from substance abuse and domestic violence; Mother has a

      history with DCS due to her substance abuse issues and has not successfully

      completed services in an open CHINS case involving her other child; Parents

      were recently involved in a physical altercation in Child’s presence; Father was

      arrested and incarcerated; and Parents have not taken the necessary actions to

      address these issues. See id. at 25-26. Following an initial hearing, the juvenile

      court ordered Child’s continued placement with L.R. but granted Mother and

      Father supervised parenting time.


[8]   A fact-finding hearing was held on January 8, 2019, following which the

      juvenile court entered its order finding Child to be a CHINS, concluding:


      Court of Appeals of Indiana | Memorandum Decision 19A-JC-720 | September 30, 2019   Page 4 of 16
        12. [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. [Mother] and [Father] have a violent
        relationship and have had altercations while Child was present.3
        [Father] has also threatened additional harm to [Mother] and
        harm to [Child]. [Child’s] physical and mental condition is
        seriously endangered in the current situation.


        13. [Child] needs care, treatment, or rehabilitation that she is not
        receiving and is unlikely to be provided or accepted without the
        coercive intervention of the Court. The Court does not find
        [Mother] and [Father]’s testimony denying domestic violence to
        be credible [because] [Mother] previously disclosed domestic
        violence to Officer Singh and each parent was observed to have
        injuries as a result of the altercation. As neither parent is
        acknowledging the issue of violence, the coercive intervention of
        the Court is necessary to compel engagement in treatment so that
        [Mother] and [Father] are able to identify and address this issue.


Id. at 86. On March 5, 2019, the juvenile court entered its dispositional decree

containing the following findings:


        [I]t is in the best interests of [Child] to be continued removed [sic]
        from the home environment and remaining in the home would
        be contrary to the welfare of [Child;] . . .




3
 During the fact-finding hearing, DCS presented evidence of an unrelated altercation between Mother and
Father that occurred on August 27, 2018. See Transcript of Evidence, Volume II at 22-23.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-720 | September 30, 2019            Page 5 of 16
              [R]easonable efforts were made by DCS to prevent or eliminate
              the need for continued removal of [Child;] . . .


              [R]esponsibility for the placement and care of [Child] is ordered
              or continues to be ordered to the DCS.


              [Child] should be under the temporary supervision of [DCS] . . .
              [t]o protect [Child.]


      Appealed Order at 2. Based on these findings, the juvenile court awarded

      wardship of Child to DCS, ordered that Child remain in relative care, and

      entered the following order with respect to parental participation:


              Participation by [Mother] and [Father] in the plan of care for
              [Child] is necessary . . . . [F]ailure to participate as required by a
              Parental Participation Order . . . can lead to the termination of
              the parent-child relationship[.]


      Id. at 3. Mother now appeals.



                                Discussion and Decision
                                     I. Standard of Review
[9]   A CHINS proceeding is a civil action and thus, requires the State to prove by a

      preponderance of the evidence that a child is a CHINS as defined by the statute.

      In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012). Preponderance of the evidence

      simply means “the greater weight of the evidence.” Kishpaugh v. Odegard, 17

      N.E.3d 363, 373 (Ind. Ct. App. 2014) (internal quotation omitted). On review

      of a juvenile court’s judgment that a child is in need of services, we do not
      Court of Appeals of Indiana | Memorandum Decision 19A-JC-720 | September 30, 2019   Page 6 of 16
       reweigh the evidence or judge the credibility of the witnesses. In re S.D., 2

       N.E.3d 1283, 1286 (Ind. 2014). Instead, we consider only the evidence

       supporting the juvenile court’s decision and any reasonable inferences arising

       therefrom. Id. at 1287. Where, as here, the juvenile court has entered findings of

       fact and conclusions thereon, our review is two-tiered. B.T. v. Ind. Dep’t of Child

       Servs., 121 N.E.3d 665, 668 (Ind. Ct. App. 2019). First, we decide whether the

       evidence supports the findings, and second, whether the findings support the

       judgment. Id. We will set aside the juvenile court’s findings and conclusions

       only if they are clearly erroneous and our review of the record leaves us firmly

       convinced a mistake has been made. In re A.M., 121 N.E.3d 556, 561 (Ind. Ct.

       App. 2019), trans. denied.


                                  II. CHINS Determination
[10]   Mother contends there is insufficient evidence supporting Child’s CHINS

       adjudication. She argues that Child was not seriously endangered by the actions

       or inactions of Mother and Father, and Child was not in need of care she was

       not receiving or unlikely to receive without the coercive intervention of the

       court.


[11]   DCS alleged that Child was a CHINS pursuant to Indiana Code section 31-34-

       1-1. Thus, DCS must prove by a preponderance of the evidence that Child is

       under age eighteen and:


                (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
       Court of Appeals of Indiana | Memorandum Decision 19A-JC-720 | September 30, 2019   Page 7 of 16
                    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 (2005); In re K.D., 962 N.E.2d at 1253. Our supreme

       court has interpreted the statute to require three basic elements that DCS must

       prove for a juvenile court to adjudicate a child a CHINS: (1) that the parent’s

       actions or inactions have seriously endangered the child, (2) the child’s needs

       are unmet, and (3) those needs are unlikely to be met without State coercion. In

       re S.D., 2 N.E.3d at 1287.


[12]   In this case, the alleged domestic violence between Parents served as the basis

       of the CHINS petition.4 Following the fact-finding hearing, the juvenile court

       concluded (1) Child’s physical or mental condition is seriously impaired or

       seriously endangered because Mother and Father have had altercations while

       Child was present and have a violent relationship, and (2) Child needs care she

       is not receiving and is unlikely to receive without the coercive intervention of




       4
        Although DCS alleged substance abuse in its CHINS petition, no evidence of substance abuse was
       presented at the fact-finding hearing, and the juvenile court did not make any findings that Child was a
       CHINS because of it. Therefore, we only review the juvenile court’s findings related to Mother and Father’s
       “violent relationship” and the altercation that occurred in Child’s presence.

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-720 | September 30, 2019               Page 8 of 16
       the court because Parents do not acknowledge the issue of violence in their

       relationship. See Appellant’s App., Vol. II at 86.


[13]   We acknowledge that the purpose of a CHINS adjudication is to “protect

       children, not punish parents.” In re N.E., 919 N.E.2d 102, 106 (Ind. 2010). A

       CHINS adjudication focuses on the child’s condition and status and a separate

       analysis as to each parent is not required at the CHINS determination stage. Id.

       at 105-06.


[14]   Mother first argues the evidence does not support the juvenile court’s findings

       that Child was present during Parent’s altercation. We disagree. Conflicting

       evidence was presented at trial as to whether Child was present during the

       altercation between Mother and Father. Officer Singh testified that there were

       not any children present during his investigation outside the home, but Mother

       told him that a child was in the apartment during the altercation. See Transcript

       of Evidence, Volume II at 24. Mother later stated in the interview with FCM

       Sanchez, however, that the child in the apartment was not Child. DCS did not

       question Officer Singh, at trial, on whether Child was the actual child that was

       present during the altercation. DCS also presented additional witnesses who

       could not confirm that Child was present during the altercation. We

       acknowledge that conflicting evidence was presented as to whether Child was

       present during the altercation. However, our standard of review requires that

       we consider only the evidence supporting the juvenile court’s decision and any

       reasonable inferences arising therefrom. See In re S.D., 2 N.E.3d at 1287.

       Therefore, in light of the evidence and our standard of review, we find that

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-720 | September 30, 2019   Page 9 of 16
       sufficient evidence was presented to support the juvenile court’s finding that

       Child was present during Parent’s altercation.


[15]   Mother next argues that the evidence does not support the juvenile court’s

       finding that Mother and Father had a violent relationship. Again, we disagree.

       The record reveals that when Officer Singh arrived at the apartment where the

       altercation occurred, Mother told him that she had been physically assaulted by

       Father, and Father threw her to the ground. She had bruise marks and cuts on

       her hands. She also told Officer Singh that she had previous injuries from prior

       altercations with Father and that Father had threatened to “hurt her

       daughter[.]” Id. at 23. Father told Officer Singh that he also had sustained cuts

       during the altercation from his attempts to defend himself. This evidence

       supports the juvenile court’s finding that Mother and Father had a violent

       relationship.


[16]   Our analysis, however, does not end here. Although the evidence most

       favorable to the juvenile court’s determination supports the finding that Child

       was present during the September 12 altercation, and that Parents were

       involved in at least one act of domestic violence, we still must determine

       whether the juvenile court’s conclusion that this altercation seriously

       endangered Child is supported by the evidence.


[17]   We recognize that “a single incident of domestic violence in a child’s presence

       may support a CHINS finding[.]” K.A.H. v. Ind. Dep’t of Child Servs., 119 N.E.3d

       1115, 1121 (Ind. Ct. App. 2019) (emphasis added). In K.A.H., a mother and her


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-720 | September 30, 2019   Page 10 of 16
       boyfriend had an abusive relationship and mother’s two children often

       witnessed mother’s boyfriend “screaming, belittling, and battering” her. Id. at

       1116. At various times, the boyfriend babysat the children. After one such

       time, one of the children, M.G., complained to his mother that his head hurt.

       The following day, the boyfriend babysat M.G. again while the other child was

       at school. At some point, M.G. was nonresponsive and died later that day.

       DCS filed a petition alleging that the other child, K.H., was a CHINS. The

       juvenile court concluded that K.H. was seriously impaired or seriously

       endangered from the mother’s inability to provide K.H. with appropriate shelter

       or supervision and thus, was a CHINS. Mother appealed and a panel of this

       court affirmed the CHINS adjudication, concluding that the physical trauma

       that the mother and M.G. suffered, and the mother’s inability to recognize the

       effects of domestic violence on her parenting and children’s well-being

       warranted the coercive intervention of the CHINS court. Id. at 1124.


[18]   The instant case, however, can be distinguished from K.A.H. Here, the evidence

       DCS presented was not nearly as egregious as the evidence presented in K.A.H.

       For example, DCS offered no evidence that Child was afraid to be around

       Parents or that Child suffered any trauma or abuse from domestic violence. No

       evidence was presented that Child, three years old at the time the September 12

       incident occurred, comprehended the violence between Mother and Father. Cf.

       K.B. v. Indiana Dept. of Child Services, 24 N.E.3d 997 (Ind. Ct. App. 2015) (noting

       that children, twelve and thirteen, were old enough to comprehend the

       violence). Unlike in K.A.H., where the children witnessed the domestic


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-720 | September 30, 2019   Page 11 of 16
       violence, the facts presented here do not indicate Child’s exact location to

       witness Parents’ altercation and therefore, we cannot make an inference that

       Child suffered as a result of the domestic violence. Although DCS presented

       evidence of a prior unrelated altercation between Parents on August 27, in

       addition to evidence of the September 12 incident, DCS failed to establish a

       sufficient nexus between the altercations and Child’s condition. It did not offer

       evidence that the child was impacted, let alone that she suffered or

       comprehended the violence between Parents. DCS asserts Parents have a

       violent relationship based solely on these two incidents. While we cannot stress

       enough that incidents of domestic violence are not to be taken lightly, we

       reiterate that a “CHINS adjudication focuses on the condition of the child[,]”

       not the parents. In re N.E., 919 N.E.2d at 105. The evidence presented here

       focused solely on the physical altercation between Mother and Father rather

       than the condition of Child. As such, the evidence presented, without more,

       does not support the juvenile court’s determination that Child’s physical or

       mental condition was seriously endangered for purposes of Indiana Code

       section 31-34-1-1(1).


[19]   Next, Mother argues there is insufficient evidence to support the juvenile

       court’s conclusion that Child was in need of care she was not receiving or

       unlikely to receive without the coercive intervention of the court. We agree.


[20]   DCS largely focuses on the altercation that occurred between Mother and

       Father on September 12 rather than any of Parents’ accomplishments or

       improvements made since the incident. The coercive intervention element

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-720 | September 30, 2019   Page 12 of 16
       “guards against unwarranted State interference in family life, reserving that

       intrusion for families ‘where parents lack the ability to provide for their

       children,’ not merely where they ‘encounter difficulty in meeting a child’s

       needs.’” In re S.D., 2 N.E.3d at 1287. When determining CHINS status under

       this element, courts should consider the family’s condition not just when the

       case was filed, but also when it is heard. Matter of A.R., 110 N.E.3d 387, 401

       (Ind. Ct. App. 2018). “Doing so avoids punishing parents for past mistakes

       when they have already corrected them.” Id.


[21]   Prior to the incident, Child was living with Father at L.R.’s home. FCM

       Sanchez testified that when he visited L.R.’s home, the home was appropriate

       for Child. See Tr., Vol. II at 40. Father provided for Child’s medical and

       educational needs without assistance from DCS or the State and properly

       supervised Child when she was in his care.


[22]   At the time of the fact-finding hearing, Parents had taken substantial steps to

       remedy the disagreements between them. Father voluntarily attended domestic

       violence sessions through Families First because he wanted to “take the classes

       and then kind of better himself [after the incident.]” Id. at 44. He began these

       sessions on October 25, 2018, and at the time of the fact-finding hearing, he had

       completed seven of the recommended twenty-six weeks of sessions. Father’s

       drug screens also demonstrate that he maintained sobriety throughout the

       pendency of this case. Most notably, on March 5, 2019, Father asked the

       juvenile court that Child be placed in his care, demonstrating his willingness

       and ability to care for Child. See id. at 86.

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-720 | September 30, 2019   Page 13 of 16
[23]   As for Mother, she began supervised visits on November 13, 2018 at Hoosier

       Families. These visits took place once a week at Mother’s home and increased

       to twice a week in December 2018. Sahsell Hunnighan, a visitation supervisor

       at Hoosier Families, testified that Mother provides Child with meals at every

       visit as well as toys to engage in activities. See id. at 73. She emphasized that

       Child and Mother “have a really good relationship. . . . [Child] shows her

       respect[,] so I think it goes pretty well and they have a lot of fun.” Id. at 74. She

       further testified that Mother uses “[a]ppropriate parenting skills, no profanity

       [or] anything like that.” Id. In describing Mother’s home, Hunnighan testified,


               The home is fine, it’s well kept. I believe she moved in [there]
               recently [and] it has [a] new look. . . . She has food stacked in the
               fridge all the time, cupboards are always filled [be]cause I do
               home audits once a month. . . . [A]ctually she always has hot
               water, she always has heat, always has you know food stocked
               up so it’s good.


       Id. at 74-75. She further testified, “I did recommend to move to unsupervised

       parenting time [be]cause I didn’t see any safety concerns.” Id. at 75. Moreover,

       Mother tested negative for illegal substances from July 2018 until the day of her

       last screen in February of 2019. See Appellant’s App., Vol. II at 100-02. Mother

       has demonstrated that she, too, is well-equipped to provide Child with the

       necessary care and supervision for her development. Again, we emphasize that

       the point of a CHINS inquiry is to “protect children, not [to] punish parents.”

       In re N.E., 919 N.E.2d at 106.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-720 | September 30, 2019   Page 14 of 16
[24]   Based on this evidence, we conclude that DCS failed to prove by a

       preponderance of the evidence that Child needed care or treatment that was

       unlikely to be provided without the juvenile court’s coercive intervention.

       Therefore, the juvenile court’s conclusion to the contrary was clearly erroneous

       and not supported by the evidence.


[25]   Although Parents have a history of making poor decisions and have one

       substantiated incident of domestic violence, the record reflects that they have

       made significant efforts to remedy their situation and become more suitable

       parents. We must note that parents who make positive changes in their lives

       should be applauded, rather than being subjected to the coercive intervention

       that results from a CHINS finding. See In re R.S., 987 N.E.2d 155, 159 (Ind. Ct.

       App. 2013).


[26]   In sum, the evidence, even viewed most favorably to the judgment, cannot

       reasonably support an inference that Parents’ actions or inactions seriously

       endangered Child or that they were likely to need the juvenile court’s coercive

       intervention. Therefore, the State failed to meet its burden by a preponderance

       of evidence.



                                               Conclusion
[27]   We conclude that the juvenile court’s determination that Child was a CHINS

       was clearly erroneous. We therefore reverse and remand to the juvenile court to

       vacate the CHINS finding as to Child.


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-720 | September 30, 2019   Page 15 of 16
[28]   Reversed and remanded.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-720 | September 30, 2019   Page 16 of 16
