MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               Dec 05 2018, 8:08 am
regarded as precedent or cited before any                                CLERK
court except for the purpose of establishing                         Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jennifer A. Joas                                         Curtis T. Hill, Jr.
Madison, Indiana                                         Attorney General of Indiana
                                                         Robert J. Henke
                                                         Marjorie Lawyer-Smith
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of:                                        December 5, 2018
Pa.J. and Pi.J. (Minor Children),                        Court of Appeals Case No.
Children in Need of Services                             18A-JC-495
and                                                      Appeal from the Dearborn Circuit
                                                         Court
M.J. (Mother),
                                                         The Honorable James D.
Appellant-Respondent,                                    Humphrey, Judge

        v.                                               Trial Court Cause Nos.
                                                         15C01-1712-JC-158
                                                         15C01-1712-JC-159
Indiana Department of
Child Services,
Appellee-Petitioner



Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-495 | December 5, 2018              Page 1 of 13
[1]   M.J. (Mother) appeals the juvenile court’s finding of her two children to be

      Children in Need of Services (CHINS), arguing that the evidence was

      insufficient to support that finding. Concluding that the Department of Child

      Services (DCS) did not prove by a preponderance of the evidence that Mother’s

      children were seriously endangered or that the coercive intervention of the court

      was necessary to ensure their care, we find that the juvenile court erred by

      adjudicating them to be CHINS. Accordingly, we reverse and remand.


                                                       Facts     1




[2]   Mother and K.J. (Father)2 have two children: Pa.J., born in 2009, and Pi.J.,

      born in 2013. On July 23, 2017, Father called Mother to pick up the children;

      Mother and Father apparently lived separately at this time. When Mother

      arrived, the two began arguing, and when the children were in Mother’s

      vehicle, Father shut the car door on Pi.J.’s leg. Mother immediately took her to

      the emergency room. Pi.J. had “just bruising and just a little swelling.” Tr.

      Vol. II p. 9. Father was arrested and charged with Level 5 felony battery and

      Level 5 felony neglect of a dependent. In addition, a protective order was filed

      against him for Mother and a no-contact order was filed against him for the

      children.




      1
        We note that the State’s brief’s statement of facts improperly contains several assertions that were not
      testified to or admitted as evidence during the fact-finding hearing. Moreover, the State omits a key fact—the
      extent of the child’s injury that apparently led to this case.
      2
          Father is not a party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-495 | December 5, 2018                  Page 2 of 13
[3]   Following the incident, DCS received a report of neglect and physical abuse for

      the children. About a week or two after the incident, Family Case Manager

      (FCM) Charlotte Franklin went to their home for a follow-up visit. Pi.J. said

      that her leg was “all better,” and FCM Franklin did not observe any problems

      with the child’s walk. Id. at 8. Pa.J. also “seemed to be good.” Id.


[4]   At some point, DCS offered the parents a program of informal adjustment,

      which Mother accepted.3 On November 8, 2017, FCM Katherine Elliott visited

      the home. During the visit, Mother stated that, six days earlier, she dropped

      the no-contact order against Father; around that same time, she also dropped

      the protective order against him. Father was present during FCM Elliott’s visit,

      though under the informal adjustment he was not supposed to be there. He did

      not interact with FCM Elliott during her visit.


[5]   On November 15, FCMs Franklin and Elliott visited the residence; Father was

      there again, this time asleep on the couch and unable to be woken up. The

      FCMs observed alcohol in the house. They spoke with Mother about the

      importance of Father’s involvement and compliance with an informal

      adjustment if he was going to be in the house and around the children. Mother

      expressed concern that she was compliant with the services and could not

      control Father’s actions. FCM Elliott had been unsuccessful in getting in touch




      3
          Apparently, the informal adjustment deteriorated before it was formally approved by the trial court.


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-495 | December 5, 2018                     Page 3 of 13
      with Father, partly because the family did not tell DCS that they had moved to

      a new apartment across the hall.


[6]   On December 8, 2017, DCS filed a petition alleging the children to be CHINS

      because Mother did not comply with the informal adjustment program. The

      petition alleged that the children were CHINS because Father had “slammed

      the door while [Pi.J.’s] foot was still hanging outside the car, effectively injuring

      her”; there was “a history of domestic violence in the home”; Father had been

      arrested and charged with two felonies, and protective and no-contact orders

      had been filed against him; the no-contact order had been removed and Father

      had returned to the home with Mother and the children; FCM Elliott had

      witnessed Father unconscious and unable to be woken up; and one of the

      children had stated that she was scared when her parents drink. Appellant’s

      App. Vol. II p. 21. An initial hearing took place that same day, after which the

      juvenile court ordered that the children remain in Mother’s home, that Father

      could have no unsupervised contact with the children, and that both parents

      had to submit to a drug screen immediately following the hearing. Sometime

      after DCS filed this petition, Mother and Father separated because Mother was

      “tired of his behavior.” Tr. Vol. II p. 19.


[7]   Sometime after the initial hearing, FCM Elliott referred the parents for services,

      including home-based casework, parenting sessions, and a batterer’s group for

      Father. Mother was compliant with services; Father was “reluctantly

      compliant” and would get upset when supervised visits did not happen as fast

      as he would like. Id. at 16.

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-495 | December 5, 2018   Page 4 of 13
[8]   On January 18, 2018, a fact-finding hearing took place. At this time, the home-

      based casework service and supervised visits for Father had started, and each

      parent had completed mental health assessments and substance abuse

      evaluations. On January 29, 2018, the juvenile court issued an order finding

      the children to be CHINS, making the following findings of fact and

      conclusions of law:


               6. The Department offered the family a Program of Informal
               Adjustment. Before the IA was approved, mother requested that
               the protective order and no-contact order against father be
               dropped.


               7. Immediately following the dismissal of the protective order,
               father became non-compliant and unresponsive when interacting
               with FCM Franklin.


               8. FCMs Franklin and Elliott visited the home on two occasions
               and had some concerns regarding father’s lack of compliance.
               First, father refused to acknowledge the FCMs’ presence when
               they visited because he was playing a video game. On the second
               occasion, FCMs Franklin and Elliott observed father passed out
               on the couch and mother physically trying to wake him and push
               him into a sitting position, without succeeding.[4]




      4
       We note that during the fact-finding hearing, FCM Elliott testified that it “was under the informal
      adjustment that [Father] would not be within the household, so, no, he was not required to speak with me,
      but it was assumed he wouldn’t be in the household.” Tr. Vol. II p. 20. She also testified that Father was not
      under a court order to speak with her. Further, there was no testimony or evidence admitted regarding
      Father playing a video game when the FCMs visited the home.

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-495 | December 5, 2018                  Page 5 of 13
              9. While mother is completely compliant with services, father is
              reluctantly working with the Department.


              10. Father has been aggressive in his interactions with FCM
              Elliott, at one point threatening to take his children and leave the
              state.


              11. Mother admitted to FCM Elliott that she and father are no
              longer together, due in part to father’s unwillingness to cooperate
              with the Department.


              12. Father’s lack of willingness to comply with the Department,
              father’s pending criminal charges, and mother’s admission that
              father isn’t completely cooperative proves by a preponderance of
              the evidence that [Pa.J. and Pi.J.] are children in need of services.


      Appealed Order p. 2. Mother now appeals.


                                   Discussion and Decision

                                     I. Standard of Review
[9]   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


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-495 | December 5, 2018   Page 6 of 13
               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).


[10]   Here, DCS alleged that the Children were 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




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-495 | December 5, 2018   Page 7 of 13
                                (B) is unlikely to be provided or accepted without
                                the coercive intervention of the court.


[11]   The purpose of a CHINS inquiry is to determine whether a child’s

       circumstances require services that are unlikely to be provided without the

       intervention of the court, and thus, the focus of a CHINS adjudication is on the

       condition of the child alone, not on the culpability of one or both parents. In re

       N.E., 919 N.E.2d at 105-06. Nonetheless, “[n]ot every endangered child is a

       child in need of services, permitting the State’s parens patriae intrusion into the

       ordinarily private sphere of the family.” In re S.D., 2 N.E.3d 1283, 1287 (Ind.

       2014). Rather, a CHINS adjudication under section 31-34-1-1 requires proof of

       three basic elements: the parent’s actions or inactions have seriously

       endangered the child; the child’s need are unmet; and “perhaps most critically,”

       those needs are unlikely to be met unless the State intervenes. Id. It is the last

       element that guards against unwarranted State interference in family life. Id.

       State intrusion is warranted only when parents lack the ability to provide for

       their children. Id. Moreover, when determining whether a child is a CHINS

       under section 31-34-1-1, and particularly when determining whether the

       coercive intervention of the court is necessary, the juvenile court “should

       consider the family’s condition not just when the case was filed, but also when

       it is heard.” Id. at 1290.




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-495 | December 5, 2018   Page 8 of 13
[12]   The juvenile court entered findings of fact and conclusions thereon sua sponte

       in its order adjudicating the children to be CHINS.5 Our review is therefore

       governed by Trial Rule 52(A). For issues covered by the juvenile court’s

       findings, we first consider whether the evidence supports the factual findings

       and then consider whether those findings support the juvenile court’s judgment.

       In re S.A., 15 N.E.3d 602, 607 (Ind. Ct. App. 2014), aff’d on reh’g, 27 N.E.3d 287

       (Ind. Ct. App. 2015). We will not set aside the findings or judgment unless they

       are clearly erroneous. Id. Findings are clearly erroneous when there are no

       facts in the record to support them; a judgment is clearly erroneous if it relies on

       an incorrect legal standard. Id. We give substantial deference to the court’s

       findings but not to its conclusions. Id. Any issues not covered by the findings

       are reviewed under a general judgment standard and the judgment may be

       affirmed if it can be sustained on any basis supported by the evidence. Id.


                                        II. CHINS Adjudication
                                           A. Subsequent Events
[13]   On April 27, 2018, after this appeal was initiated, DCS requested that the

       children’s wardship be terminated, and the request was granted that same day.

       Although the wardship was terminated, this appeal is not moot; a decision on

       the merits is warranted and necessary. A CHINS adjudication, even one as

       short-lived as this one, can have serious consequences for families. Indiana




       5
           A CHINS fact-finding order is not required to include formal findings. In re S.D., 2 N.E.3d at 1288.


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-495 | December 5, 2018                     Page 9 of 13
       Code section 31-35-2-4(b)(2)(B)(iii) provides that two separate CHINS

       adjudications can be the basis for a petition to terminate parental rights.

       Although the Children are not currently CHINS, it is still on record that they

       have been adjudicated CHINS and if that adjudication was erroneous, it must

       be corrected to protect the integrity of the family going forward. See In re K.D.,

       962 N.E.2d at 1259 (noting that “an abundance of caution should be used when

       interfering with the makeup of a family and entering a legal world that could

       end up in a separate proceeding with parental rights being terminated”).


                                   B. Serious Endangerment
[14]   Mother first contends that the evidence does not prove that the children’s

       physical or mental condition was seriously impaired or endangered by either

       parent’s action or inaction. DCS initially became involved with this family

       after Father shut a car door on Pi.J.’s leg. The record reveals that Mother took

       Pi.J. to the emergency room immediately after this incident; the child’s injuries

       consisted of some bruising and swelling. FCM Franklin observed no problems

       with Pi.J. during a follow-up visit to the family. The record contains no

       evidence that this incident was intentional or that it was anything but an

       isolated occurrence.


[15]   FCM Elliott testified during the fact-finding hearing that she had no concerns

       about Mother or the children’s safety. The State’s closing argument consisted

       solely of the contention that DCS filed a CHINS petition because Father was

       not participating with services, and that Father began and continued to


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-495 | December 5, 2018   Page 10 of 13
       participate in services only because the formal CHINS proceeding was open. In

       other words, the State failed to point to any evidence to show that the children

       were seriously endangered.


[16]   The record shows that Mother was meeting the children’s needs for food,

       clothing, shelter, medical care, education, and supervision. Mother’s

       employment is stable, having worked for the same employer for most of a

       decade; Mother also has acceptable housing, transportation, and health

       insurance for the children. Pa.J. goes to school, and Pi.J. goes to work with

       Mother, with Mother’s employer’s permission.


[17]   Although the State points to several facts to support the juvenile court’s

       conclusion, we do not find these facts persuasive. First, the State notes that

       Mother reported a history of domestic violence and alcohol abuse between the

       parents. Yet the juvenile court did not make findings of fact on either of these

       points. The only evidence in the record regarding domestic violence was FCM

       Franklin’s testimony that Mother stated that Mother and Father “have gotten

       physical and verbally abusive.” Tr. Vol. II p. 11. FCM Elliott then testified

       that she thought DCS had received reports of those allegations, but she did not

       know whether any reports had been substantiated. This brief testimony is far

       too vague and indefinite to support a finding that the children were seriously

       impaired or endangered by any domestic violence. Regarding any history of

       alcohol abuse, we fail to find support for this contention in the record. Instead,

       FCM Elliott testified that Mother had said that she and Father do not drink at

       the same time to prevent arguments between them. In short, the facts do not

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-495 | December 5, 2018   Page 11 of 13
       support a finding that the children were seriously impaired or endangered

       because of either parent’s actions.6


                C. Need for Coercive Intervention of the Court
[18]   We turn now to Mother’s argument that the State’s coercive intervention was

       not necessary to ensure that the children’s needs would be met. We agree.


[19]   Mother initially asserts that the juvenile court’s findings regarding Father are

       not relevant to her appeal. But a CHINS adjudication turns on the children’s

       conditions, not on the culpability of one or both parents. In re N.E., 919 N.E.2d

       at 105. And we find that Mother and Father are linked in the few problems that

       exist in this case, including Mother’s request to have the protective order and

       no-contact order dropped, Mother’s decision to allow Father in the home with

       the children even though he was not supposed to be there during the informal

       adjustment, and the parents’ decision to move apartments without notifying

       DCS of their new address. Under these circumstances, we find that the juvenile

       court’s findings regarding Father are relevant. We also find, however, that

       these relatively minor problems do not establish that the children’s needs were

       not being met or that the children had needs that were unlikely to be met

       without the State’s coercive intervention. As noted above, Mother was meeting




       6
        The State’s argument also improperly relies on several facts that were not part of the fact-finding hearing;
       we decline to consider these facts in our analysis.

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-495 | December 5, 2018                   Page 12 of 13
       the children’s needs and was fully compliant throughout the course of these

       proceedings.


[20]   The State argues that a CHINS finding is necessary because Father was only

       reluctantly complying with services at the time of the fact-finding hearing.

       However, Father was not under a court order to participate before the CHINS

       finding was made. Moreover, nothing in the record indicates that he did not

       participate with proffered services before that finding was made; the record also

       does not reveal any problems with Father when he participated with those

       services. The State also relies on the fact that the parents had an on-again, off-

       again relationship, but we cannot say that an evolving relationship on its own is

       enough to warrant coercive intervention. The State simply fails to show that

       services are necessary for these parents or that the children’s needs will not be

       met if services are not ordered. Accordingly, the State failed to prove by a

       preponderance of the evidence that the coercive intervention of the State was

       necessary to ensure the children’s well-being.


[21]   In sum, because the State failed to prove each element required by statute to

       show that a child is a CHINS, the juvenile court erred by adjudicating the

       children to be CHINS.


[22]   The judgment of the juvenile court is reversed and remanded.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-495 | December 5, 2018   Page 13 of 13
