MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),                            Sep 26 2018, 8:02 am
this Memorandum Decision shall not be
                                                                      CLERK
regarded as precedent or cited before any                         Indiana Supreme Court
                                                                     Court of Appeals
court except for the purpose of establishing                           and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jesse R. Harper                                          Curtis T. Hill, Jr.
Harper & Harper, LLC                                     Attorney General of Indiana
Valparaiso, Indiana
                                                         Robert J. Henke
                                                         Patricia C. McMath
                                                         Deputies Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Kathleen Strohbach,                                      September 26, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-MI-1018
        v.                                               Appeal from the Porter Circuit
                                                         Court
Indiana Department of Child                              The Honorable Mary R. Harper,
Services,                                                Judge
Appellee-Respondent.                                     The Honorable Gwenn R.
                                                         Rinkenberger, Magistrate
                                                         The Honorable Stephanie Wicke,
                                                         Judge Pro Tem
                                                         Trial Court Cause No.
                                                         64C01-1707-MI-7313



Sharpnack, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018        Page 1 of 13
                                      Statement of the Case
[1]   In November 2010, the Department of Child Services of Porter County (DCS)

      recorded a substantiated report of child neglect by Kathleen Strohbach. In July

      2017, Strohbach filed in the Porter Circuit Court a petition to expunge the

      substantiated report. The court denied her petition, and she appeals. We

      reverse and remand with instructions to the court to grant the petition and to

      order expungement of the substantiated report.


                                                     Issue
[2]   Strohbach presents one issue for our review, which we restate as: whether the

      court erred by denying the petition to expunge.


                               Facts and Procedural History
[3]   In October 2010, Strohbach was involved in an altercation with her ex-

      husband’s girlfriend, and Strohbach’s then nine-year-old son witnessed the

      incident. As a result of this event, criminal charges were filed against

      Strohbach, and she ultimately pleaded guilty to one count of disorderly conduct

      as a Class B misdemeanor. In addition, DCS substantiated a report of child

      neglect against Strohbach because, although her son was not struck or involved

      in the altercation, he was present.


                                   Discussion and Decision
[4]   Strohbach contends the court erred by denying her petition to expunge the

      substantiated report of child neglect because she presented clear and convincing

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018   Page 2 of 13
      evidence that satisfied the requirements of Indiana Code section 31-33-27-5

      (2012).


[5]   Indiana Code section 31-33-27-5 provides, in pertinent part:


                 ....


                 (b) An individual identified as a perpetrator of child abuse or
                 neglect in a substantiated report may file a petition with a court
                 exercising juvenile jurisdiction in the county in which the
                 individual resides, requesting that the court order the department
                 to expunge the substantiated report and related information.


                 ….


                 (e) In considering whether to grant a petition filed under this
                 section, the court may review:

                                                                              1
                          (1) the factors listed in IC 31-39-8-3 in relation to the
                          petitioner, if the substantiated report was the subject of a
                          juvenile court case; and




      1
          Indiana Code section 31-39-8-3 (2017) provides, in relevant part:

      (e) In considering whether to grant the petition, the juvenile court may review:
      (1) the best interests of the child;
      (2) the age of the person during the person’s contact with the juvenile court or law enforcement agency;
      (3) the nature of any allegations;
      (4) whether there was an informal adjustment or an adjudication;
      (5) the disposition of the case;
      (6) the manner in which the person participated in any court ordered or supervised services;
      (7) the time during which the person has been without contact with the juvenile court or with any law
      enforcement agency;
      (8) whether the person acquired a criminal record; and
      (9) the person’s current status.

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018                Page 3 of 13
                       (2) any facts relating to the petitioner’s current status,
                       activities, employment, contacts with children, or other
                       circumstances relevant to consideration of whether the
                       petition should be granted.


              (f) The court may grant the petition if the court finds, by clear
              and convincing evidence, that:


                       (1) there is little likelihood that the petitioner will be a
                       future perpetrator of child abuse or neglect; and


                       (2) the information has insufficient current probative value
                       to justify its retention in records of the department for
                       future reference.


[6]   Strohbach’s burden of proof is by clear and convincing evidence. See Ind. Code

      § 31-33-27-5(f). In reviewing a judgment requiring proof by clear and

      convincing evidence, we may not impose our own view as to whether the

      evidence is clear and convincing. In re Guardianship of B.H., 770 N.E.2d 283,

      288 (Ind. 2002). Rather, we must determine, by considering only the probative

      evidence and reasonable inferences supporting the judgment and without

      weighing evidence or assessing witness credibility, whether a reasonable trier of

      fact could conclude that the judgment was supported by clear and convincing

      evidence. Id.


[7]   DCS did not file an appellee’s brief. In fact, it filed with this Court its intent not

      to file a brief, noting that it took no position as to Strohbach’s petition to

      expunge and that it stood silent at the hearings thereon. Where an appellee

      does not file a brief, we do not undertake to develop arguments on that party’s
      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018   Page 4 of 13
      behalf; rather, we may reverse upon a prima facie showing of reversible error by

      the appellant. Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008). Prima facie

      error is error “at first sight, on first appearance, or on the face of it.” Front Row

      Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014). This “prima facie error

      rule” relieves this Court from the burden of controverting arguments advanced

      for reversal, a duty which remains with the appellee. Simek v. Nolan, 64 N.E.3d

      1237, 1241 (Ind. Ct. App. 2016).


[8]   At the expungement hearings, Strohbach testified that she took her then nine-

      year-old son with her to her ex-husband’s apartment to discuss with him an

      issue regarding their son. The issue was that their son had told her that he did

      not want to stay at his father’s house because, when there, he could hear his

      father and his girlfriend having sex. The girlfriend of Strohbach’s ex-husband

      was at the apartment when Strohbach and her son arrived. Strohbach testified

      that her ex-husband grabbed her by the arms, and she broke free and attempted

      to find his girlfriend so that they could all discuss the matter. Strohbach went to

      the bedroom where the girlfriend slammed the door in her face, and she and

      Strohbach ended up in a physical altercation. Strohbach testified that as a result

      of this incident, she pleaded guilty to disorderly conduct. Her verified petition

      further detailed that she was sentenced to six months of probation on this

      charge, which she successfully completed, including the payment of all fines

      and fees.


[9]   Strohbach additionally testified that, besides the criminal charges, a

      substantiated report of child neglect was filed against her because the altercation

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018   Page 5 of 13
       occurred in the presence of her young son. She testified that the services she

       underwent for the DCS case included random drug screens, individual therapy,

       and family therapy with her son. Although DCS neither opposed Strohbach’s

       petition nor participated in the hearing in any meaningful way, it confirmed to

       the court that Strohbach participated in individual and family therapy. DCS

       informed the court that Strohbach completed all services and that the wardship

       was dismissed and the case closed as a successful reunification in December

       2011. DCS also noted for the court that at the time the case was closed,

       Strohbach’s son was doing well academically, that his needs were being met by

       his parents, and that DCS had no concern with his safety while in his parents’

       care.


[10]   Strohbach further testified that she has joint physical and legal custody of her

       son. She also acknowledged in her testimony that prior to and subsequent to

       this incident she has not been the subject of any other child abuse or neglect

       allegations or any other criminal charges. Additionally, Strohbach’s counsel

       informed the court that she had successfully petitioned to have the

       misdemeanor disorderly conduct conviction expunged from the record.


[11]   Strohbach acknowledged that, at the time of the incident, she was employed at

       DCS. However, she testified for the past three years she had been employed

       with Wexford Health working at the DOC as a parole reentry liaison. She also

       testified that she had begun courses to obtain her masters degree in social work.

       In her testimony, she explained that her current internship dealt with adults but



       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018   Page 6 of 13
       that her next internship might require her to work with children and families,

       and a substantiated DCS report might keep her from doing that.


[12]   In addition to her own testimony, Strohbach presented the testimony of three

       women, all of whom had known her for at least eight years and have children in

       their homes under their care. One of the witnesses worked with Strohbach at

       DCS and still works there. She testified that she has no concerns whatsoever

       regarding Strohbach’s behavior with children and that she does not believe

       Strohbach would be at risk of committing child neglect or abuse in any fashion

       in the future. The second witness testified that she was acquainted with

       Strohbach through their sons’ football team and that she has never been worried

       or in fear for Strohbach to be around her children, even without her present.

       She further testified that Strohbach had never shown any signs of being at risk

       of child abuse or neglect; instead, Strohbach had always been caring and willing

       to take care of the kids. Similarly, the third witness testified that she was

       acquainted with Strohbach through their sons’ football team. She characterized

       Strohbach’s behavior around children as “very loving and very caring.” Tr. p.

       14. She also acknowledged that she had never been worried or in fear for

       Strohbach to be around her children, even without her present.


[13]   At the second expungement hearing, the court explained that it had obtained

       the DCS report concerning the substantiation of neglect. There was mention in

       the report that Strohbach had been diagnosed as being bipolar, and the court

       questioned Strohbach about this diagnosis. Strohbach stated that she had been

       diagnosed during her marriage and that she had been treated with medication

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018   Page 7 of 13
       and mental health services. She further explained, “[A]fter I separated and was,

       um, away from my ex-husband, my now ex-husband, for a substantial period of

       time, a lot of the manifestations started to subside because I was no longer in a

       very dysfunctional, abusive relationship. Um, over time [the doctor] weaned

       me off of my medication and closed my case. I’ve been medication free for

       several years now.” Id. at 26-27. She also reported to the court that she had

       experienced no further problems of that sort.


[14]   In denying Strohbach’s petition, the trial court found, in pertinent part:


               4) That a Substantiated report was issued on November 4, 2010.
               The report showed that Petitioner attacked Father’s girlfriend
               and they got into a fight. The report also revealed that she has
               Bi-Polar Type II disorder and denied she was not taking her
               medications. The prescriptions reviewed by the caseworker
               showed that she was taking her medication. Petitioner also
               revealed she was released from therapy in August 2010. From
               the report, it appears there may have been Domestic Abuse in the
               relationship, Father against Mother.


               ….


               9) Petitioner provided no evidence that she is addressing her Bi-
               Polar Type II disorder, and she claimed she was dismissed from
               therapy prior to the substantiated incident. She has not provided
               any proof other tha[n] what she testified, that she was released.
               She was taking her medication at the time of the incident and
               claims that the doctor weaned her off her meds and closed her
               case.


               ….


       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018   Page 8 of 13
               11) This Court finds, that there is not clear and convincing
               evidence of the following:


                        a) That there is little likelihood that Petitioner will be a
                        future perpetrator of child abuse or neglect. To the
                        contrary, Petitioner’s history of Bi-Polar — Type II, and
                        no proof that she has it under control, coupled with her
                        statement that she had been released from therapy two
                        months prior to the incident is troubling.


                        b) That there is current probative value to justify the
                        retention of the substantiation in the records as there is
                        possibility of Petitioner working with children during their
                        most vulnerable time.


       Appellant’s App. Vol II, pp. 31-33.


[15]   The evidence in this case showed that this occurrence of neglect was an isolated

       incident that occurred eight years ago at the end of a bitter divorce. Strohbach’s

       conduct was not directed at her son nor was her son struck or involved in any

       way other than to witness the altercation between his mom and his dad’s

       girlfriend. Strohbach readily admits that she exercised poor judgment in taking

       her son with her to address her concerns with her ex-husband. However, she

       accepted responsibility for her actions, both criminally and with the juvenile

       court/DCS, and complied with all court orders and services. Moreover,

       Strohbach has had no involvement with either DCS, the juvenile court, or the

       criminal court since that incident.




       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018   Page 9 of 13
[16]   Further, in addition to her own testimony, Strohbach presented the testimony

       of three witnesses as to her conduct with children. The uncontroverted

       evidence shows that Strohbach’s interaction with children has been that of a

       caring, loving adult with whom people aware of the neglect substantiation

       would not be fearful of leaving their children. In addition, although DCS did

       not agree to Strohbach’s request for expungement, it clearly informed the trial

       court that it was not opposing expungement.


[17]   In its findings, the trial court focused on a note contained in a 2010 or 2011
                                                                                   2
       DCS report regarding a diagnosis of bipolar disorder. The court questioned

       Strohbach about the diagnosis, and she candidly explained that the symptoms

       had manifested themselves as a result of her abusive, dysfunctional marriage.

       She stated that she was treated with medications and mental health services and

       that once she was separated from her husband, the symptoms began to subside.

       Under her doctor’s care, she was later weaned off the medications and released

       from treatment. She added that she had been medication free for several years

       and had experienced no further problems. The court noted in its findings that

       Strohbach had taken her medications as prescribed and that she had been

       released from therapy in August 2010. The court further noted it appeared that

       Strohbach’s ex-husband had abused Strohbach during the marriage.




       2
           This report, although referred to by the court, was not made part of the record.


       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018     Page 10 of 13
[18]   Yet, in light of the evidence and the court’s own findings, the court nonetheless

       stated in another finding that Strohbach “provided no evidence that she is

       addressing” her bipolar disorder, that she “claimed” she was dismissed from

       therapy prior to the incident but that she provided no proof other than her

       testimony that she was released, and that she “claims that the doctor weaned

       her off her meds and closed her case.” Id. at 32-33. The court then determined

       that Strohbach’s “history” of bipolar disorder was a sufficient basis to find that

       she had not met her burden, stating that there was “no proof that [Strohbach]

       has it under control” and it was troubled by the fact that “she had been released

       from therapy two months prior to the incident.” Id. at 33.


[19]   Notably, the court made no findings that the testimony of Strohbach, or any of

       her witnesses, was not credible. In addition, DCS obviously knew about

       Strohbach’s previous diagnosis, treatment, and release and yet it did not oppose

       her expungement request. Moreover, there was no evidence of a professional

       nature explaining Strohbach’s condition or associating it in any way with the

       incident. On the contrary, the evidence shows that Strohbach’s reaction at her

       ex-husband’s apartment in 2010 followed her ex-husband grabbing her by the

       arms and his girlfriend slamming a door in her face. Strohbach testified, and it

       was apparently somewhat documented in the DCS report, that her marriage

       was an abusive, dysfunctional relationship. In response to questioning by the

       court, Strohbach testified, “my ex-husband put his hands on me which had

       been a recurring theme in our marriage, that he was physically—he was a bully.

       A physical bully. Um, so I broke away from him and I ran down the hallway to


       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018   Page 11 of 13
       call his girlfriend out [of the bedroom] because I wanted number one to talk to

       her, I wanted her in my physical presence cuz I thought if she was there he

       would stop being aggressive towards me. When I got to the bedroom she

       slammed the door on me, it hit me in the face, and then I just—my defense

       mechanism kicked in.” Tr. p. 28.


[20]   The trial court was presented with no evidence that Strohbach’s actions were

       caused by or related in any way to a bipolar disorder; therefore, the speculative

       concerns of the trial court regarding any bipolar condition that might have

       existed in the past do not support the court’s determination. Thus, in light of

       the anomalous nature of this incident as well as the unequivocal and

       uncontroverted testimony of Strohbach and her three witnesses, we conclude

       that Strohbach has made a prima facie showing that there was clear and

       convincing evidence that there is little likelihood Strohbach will be a future

       perpetrator of child abuse or neglect. Moreover, because we conclude thus,

       there is no present reason for maintaining the record of the neglect

       substantiation.


                                                Conclusion
[21]   For the foregoing reasons, we conclude that Strohbach has made a prima facie

       showing of reversible error.


[22]   Reversed and remanded with instructions to the court to grant Strohbach’s

       petition and to order expungement of her neglect substantiation.



       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018   Page 12 of 13
Mathias, J., and Crone, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018   Page 13 of 13
