MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Sep 13 2018, 8:55 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald J. Frew                                           Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General

                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of N.I. (Minor                             September 13, 2018
Child), a Child in Need of                               Court of Appeals Case No.
Services, and                                            18A-JC-624
                                                         Appeal from the Allen Superior
K.R.H. (Mother),                                         Court
Appellant-Respondent,                                    The Honorable Charles F. Pratt,
                                                         Judge
        v.
                                                         The Honorable Jennifer M.
                                                         Young, Temporary Judge
Indiana Department of Child
Services,                                                Trial Court Cause No.
                                                         02D08-1707-JC-504
Appellee-Petitioner



Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-624 | September 13, 2018                Page 1 of 5
[1]   K.R.H. (“Mother”) appeals the trial court’s determination that N.I. (“Child”),

      her minor child, is a child in need of services (“CHINS”). Mother contends

      that the Indiana Department of Child Services (“DCS”) failed to prove that any

      care, treatment, or rehabilitation that Child needs is unlikely to be provided or

      accepted without the coercive intervention of the court. We agree and therefore

      reverse and remand for further proceedings.


[2]   Child was born in November 2011. In July 2017, Child was living with Mother

      and Mother’s sister and niece in the maternal grandmother’s apartment, and

      Child’s father was incarcerated. At that time, Mother’s six children from

      another father had been adjudicated CHINS in separate proceedings and were

      living in foster care. Mother was arrested, and Child was placed in foster care;

      the record does not indicate why Child was not placed with Child’s relatives.1

      DCS filed a petition alleging that Child was a CHINS based on Mother’s

      inability to provide her with independent housing, as well as Mother’s addiction

      to alcohol, incarceration, and noncompliance with her participation plan in the

      other CHINS proceedings. DCS later alleged that Mother tested positive for

      THC. After a factfinding hearing in October 2017, the trial court found Child

      to be a CHINS in an order that reads in relevant part as follows:




      1
       Indiana Code Section 31-34-4-2(a) provides that DCS must consider placing a child alleged to be a CHINS
      who is taken into custody under court order with a “suitable and willing relative” or a de facto custodian
      “before considering any other out-of-home placement.” The record suggests that Child was taken into
      custody under court order but is silent regarding whether Mother’s relatives were unsuitable or unwilling to
      have Child placed with them.



      Court of Appeals of Indiana | Memorandum Decision 18A-JC-624 | September 13, 2018                 Page 2 of 5
              H. At the time of the close of evidence [Mother] was in jail. Her
              latest incarceration is for a charge of criminal conversion. She is
              not therefore able to provide the child with the necessary food,
              clothing, shelter, medical care or supervision. Her voluntary
              choices to engage in criminal behavior seriously endanger
              [Child’s] physical or mental condition.

              I. Given the fact that (a) [Mother] has not complied with services
              as ordered under the [dispositional decrees in the other CHINS
              cases]; (b) has not resolved her addiction issues as evidenced by
              her diagnostic assessment of June 2017; and (c) her past and
              current incidents of incarceration in criminal charges, the Court
              finds that [Mother] and [Child] require the provision of services
              that she is [sic] unlikely to receive without the coercive
              intervention of the Court.


      Appellant’s App. Vol. 2 at 20. In January 2018, a dispositional hearing was

      held and a dispositional order was issued, from which Mother now appeals.


[3]   Indiana Code Section 31-34-1-1 provides that a child is a CHINS if, before the

      child becomes eighteen years of age, “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: (A) the child is not

      receiving; and (B) is unlikely to be provided or accepted without the coercive




      Court of Appeals of Indiana | Memorandum Decision 18A-JC-624 | September 13, 2018   Page 3 of 5
      intervention of the court.”2 DCS has the burden of proving that a child is a

      CHINS by a preponderance of the evidence. In re Des.B., 2 N.E.3d 828, 835-36

      (Ind. Ct. App. 2014) (citing Ind. Code § 31-34-12-3). “When reviewing the

      sufficiency of the evidence to support a CHINS adjudication, we consider only

      the evidence favorable to the judgment and the reasonable inferences raised by

      that evidence.” Id. at 836. “An inference is not reasonable when it rests on no

      more than speculation or conjecture.” Pelak v. Indiana Indus. Servs., Inc., 831

      N.E.2d 765, 769 (Ind. Ct. App. 2005), trans. denied (2006).


[4]   Mother acknowledges that DCS presented evidence that she had struggled to

      comply with the participation plan in the other CHINS proceedings with

      respect to substance abuse/treatment, housing, and employment, etc., but she

      argues that DCS failed to prove by a preponderance of the evidence that any

      care, treatment, or rehabilitation that Child needs is unlikely to be provided or

      accepted without the coercive intervention of the court: “[W]hile [M]other’s

      living condition had been somewhat inconsistent, it would appear that [Child]

      had been consistently residing in relative placement.” Appellant’s Br. at 15.

      DCS responds that “[t]he evidence is clear that Mother failed to meet the needs

      of her other six children, and as of … the last day of the CHINS factfinding on

      October 30, 2017, she was incarcerated, and unable to meet Child’s needs.”

      Appellee’s Br. at 21. This misses Mother’s point about the need for coercive



      2
        Contrary to what the trial court’s order suggests, the statute’s coercive intervention provision does not apply
      to a child’s parent.



      Court of Appeals of Indiana | Memorandum Decision 18A-JC-624 | September 13, 2018                    Page 4 of 5
      court intervention. DCS presented zero evidence that any care, treatment, or

      rehabilitation that Child needs was unlikely to be provided or accepted without

      the coercive intervention of the court, and it would be unreasonable for us to

      infer that such intervention was necessary from the mere fact that Child was

      placed in foster care for reasons not apparent in the record. Accordingly, the

      CHINS determination is clearly erroneous, and we reverse and remand for

      further proceedings consistent with this opinion.


[5]   Reversed and remanded.


      Najam, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-JC-624 | September 13, 2018   Page 5 of 5
