                                                                               FILED
                                                                          Jan 22 2019, 5:49 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT -                                    ATTORNEYS FOR APPELLEE
MOTHER                                                      Curtis T. Hill, Jr.
Gregory L. Fumarolo                                         Attorney General of Indiana
Fort Wayne, Indiana
                                                            Katherine A. Cornelius
ATTORNEY FOR APPELLANT -                                    Deputy Attorney General
FATHER                                                      Indianapolis, Indiana
Mark A. Thoma
Leonard, Hammond, Thoma & Terrill
Fort Wayne, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of L.N., Jr., a                               January 22, 2019
Child Alleged to be a Child in                              Court of Appeals Case No.
Need of Services;                                           18A-JC-1666
C.N. (Mother) and L.N., Sr.                                 Appeal from the Allen Superior
(Father),                                                   Court
                                                            The Honorable Charles F. Pratt,
Appellants-Respondents,
                                                            Judge
        v.                                                  The Honorable Sherry A. Hartzler,
                                                            Magistrate
Indiana Department of Child                                 The Honorable Lori K. Morgan,
Services,                                                   Magistrate
Appellee-Petitioner.                                        Trial Court Cause No.
                                                            02D08-1706-JC-474



Najam, Judge.


Court of Appeals of Indiana | Opinion 18A-JC-1666 | January 22, 2019                               Page 1 of 14
                                         Statement of the Case
[1]   C.N. (“Mother”) and L.N., Sr. (“Father”) (collectively, “Parents”) appeal the

      trial court’s adjudication of their minor child, L.N., Jr. (“Child”), as a child in

      need of services (“CHINS”). Parents each present a single issue for our review,

      which we consolidate and restate as whether the trial court erred when it

      adjudicated Child to be a CHINS.


[2]   We reverse.


                                   Facts and Procedural History
[3]   In February 2017, Parents lived in Arizona. At that time, Parents were

      homeless, but they lived in an emergency family shelter because Mother was

      pregnant. On February 14, Mother gave birth to Child. When Child was

      approximately one month old, the family moved to Indiana. Shortly after

      Parents arrived in Indiana, they moved into a house and applied for Indiana’s

      WIC program.1 On WIC’s referral, Parents engaged in services with Healthy

      Families and with the Hope Center. Parents also found a doctor for Child at

      the Neighborhood Health Clinic, where they took Child for Child’s two-month

      checkup.




      1
        WIC is a “food subsidy” program for newborn children. Appellee’s Br. at 26. Mother applied to Indiana’s
      WIC program because both Mother and Father are disabled and do not work. Mother became disabled after
      she had an allergic reaction to a prescription drug. Father became disabled after he was shot in the back in
      1976.

      Court of Appeals of Indiana | Opinion 18A-JC-1666 | January 22, 2019                            Page 2 of 14
[4]   On June 8, the Indiana Department of Child Services (“DCS”) received a report

      regarding concerns about Parents’ mental health and their ability to care for

      Child. Specifically, the report indicated that Parents had stated that Child

      could walk, talk, and eat adult food, even though Child was only four months

      old. Further, the report indicated that Mother has bipolar disorder but that she

      was not taking her medications.


[5]   That same day, a DCS employee went to Parents’ house to ensure Child’s

      safety. Parents denied the allegations, and the DCS worker did not see any

      visible marks or bruises on Child and did not observe any safety concerns with

      the home. The next day, DCS Family Case Manager (“FCM”) Caitlin Wright

      went to Parents’ house and spoke with Mother about Mother’s health. Mother

      told FCM Wright that she had been previously diagnosed with bipolar disorder

      and that she had spent time in a psychiatric facility in 2009. Mother indicated

      that the psychiatric facility had released her with medications that she took for a

      while but that she had stopped taking them. Mother also told FCM Wright

      that, while Mother had tried to feed Child infant cereal on one occasion when

      Child was approximately two months old, Child did not like it, and Parents did

      not feed Child the infant cereal again. Rather, Mother stated that she was

      exclusively breastfeeding Child. Mother then signed consent forms to allow the

      Hope Center, Healthy Families, and the Neighborhood Health Clinic to release

      information to FCM Wright.


[6]   FCM Wright then spoke with the service providers. Providers at the Hope

      Center and Healthy Families indicated that they had concerns with Parents’

      Court of Appeals of Indiana | Opinion 18A-JC-1666 | January 22, 2019     Page 3 of 14
      lack of ability to parent, lack of supervision, and lack of knowledge regarding

      how to appropriately care for a child. Providers at the Neighborhood Health

      Clinic did not express any concerns. After FCM Wright had visited Parents’

      home a few times, she expressed concerns for Child’s safety. In particular,

      FCM Wright was concerned that Parents did not recognize the safety concerns

      that Mother’s mental illness can cause. Further, FCM Wright was concerned

      that Parents did not know how to soothe Child other than to breastfeed.


[7]   Based on her concerns and the concerns of the providers at the Hope Center

      and Healthy Families, DCS removed Child from Parents’ home on June 28. At

      the time Child was removed, Parents’ home had trash and debris throughout;

      minimal furniture; loose screws, nails, lighters, and medication bottles; and

      there was a bottle full of urine in the living room.2 Parents’ home also lacked a

      showerhead in the bathroom. Accordingly, DCS filed a petition alleging Child

      to be a CHINS.


[8]   The trial court held an initial hearing on June 30. After the hearing, the trial

      court entered a provisional order compelling Parents to engage in services.

      Shortly after DCS had removed Child from Parents’ home, Parents began

      visiting with Child through Quality Counseling. The Parents initially started




      2
       The bottle in the living room was “used for [Father] to urinate in.” Father’s App. Vol. 2 at 63. It is unclear
      whether Father’s use of the bottle was related to his physical disability.

      Court of Appeals of Indiana | Opinion 18A-JC-1666 | January 22, 2019                              Page 4 of 14
      with regular visitations; Parents visited Child three times per week for three to

      four hours each time.


[9]   Because Mother was breastfeeding Child at the time of Child’s removal, Mother

      continued to pump breastmilk in order to take it to the visits with Child. Prior

      to visits, Mother would pump breast milk and freeze it. Then Mother would

      unfreeze it, add more milk, and freeze it again. Mother would repeat this

      process until it was time to bring the milk to the visit with Child. The Clinical

      Director of Quality Counseling, Rachida Bejja, informed Mother that that was

      not “appropriate storage” for the milk, especially since Mother did not label the

      milk. Tr. at 131.3 Further, Parents had to walk “quite a distance” to the visits

      with Child, and they would carry the breastmilk to the visits. Id. at 148. But

      Parents would not put the milk in a cooler or any other container to keep it cold

      when they walked to the visits during the summer months. Once, Parents took

      milk to a visit that was “greenish” in color.” Id. Because of her concerns with

      how Mother stored and transported breastmilk, Bejja recommended that

      Parents feed Child goat’s milk as an alternative.4 Parents agreed, and they

      bought Child goat’s milk, which they stored in a refrigerator at Quality

      Counseling’s facility.




      3
        In the record on appeal, Parents provided two transcripts. One is the transcript of the factfinding hearings,
      and the other is a transcript of the dispositional hearing. As we do not cite to the transcript of the
      dispositional hearing in this opinion, for ease of reference, we refer to the transcript of the factfinding
      hearings simply as “Tr.”
      4
          Bejja had originally recommended feeding formula to Child. But Parents did not agree to using formula.


      Court of Appeals of Indiana | Opinion 18A-JC-1666 | January 22, 2019                               Page 5 of 14
[10]   On one occasion shortly after Child was removed from Parent’s home, Mother

       took only baby food and water to feed Child.5 Bejja attempted to talk to

       Mother and to tell her that Child also needed milk, but the conversation with

       Mother “escalat[ed],” and it was very difficult for Bejja to talk to Mother. Id. at

       132. Based on her concerns with Mother’s breastmilk and “food in general for

       the baby,” and on her “difficulties communicating” with Parents, Bejja

       ultimately decided to change the visits from regular to therapeutic visits. Id. at

       129.


[11]   As a condition of their participation in services, Parents also submitted to

       psychological examinations. Doctor Jason Thomas Cook, a clinical

       psychologist, conducted the exams of Parents. During Mother’s exam, Doctor

       Cook noted that Mother had “bizarre thought processes” and “eccentric

       behavior.” Id. at 83. He also noted that Mother had a “lack of . . . concern

       about fitting in socially and what others think of her[.]” Id. Based on the

       results of Mother’s exam, Doctor Cook concluded that Mother exhibited

       behaviors that were “consistent with someone with a personality disorder[,]

       specifically Schizotypal personality disorder[.]” Id. at 75. Doctor Cook also

       concluded that Mother has an “unspecified neurocognitive disorder,” which

       “could interfere in parenting and understanding parenting skills[.]” Id. at 81.




       5
         It is not clear from the record whether this incident occurred prior to or after the change from breastmilk to
       goat’s milk.

       Court of Appeals of Indiana | Opinion 18A-JC-1666 | January 22, 2019                                Page 6 of 14
       He further concluded that her undiagnosed mental illness “could interfere in

       teaching . . . proper living skills” to Child. Id. at 83.


[12]   Doctor Cook also conducted a psychological exam of Father. Based on the

       results of the exam, Doctor Cook determined that Father’s “overall intellectual

       functioning” is “below the average” for a person in his peer group. Id. at 87.

       Doctor Cook further determined that Father’s low intellectual functioning

       could make it difficult for Father to retain new information and “could”

       interfere in parenting. Id. at 88. Doctor Cook concluded that Father would

       struggle if he tried to live alone. Doctor Cook recommended that Father

       receive further neuropsychological testing and possibly psychiatric services.


[13]   The trial court held factfinding hearings on the CHINS petition on October 18

       and November 30, 2017, and on February 21, 2018. On May 14, the trial court

       entered findings of fact and conclusions thereon in which it found Child to be a

       CHINS. Specifically, the trial court found that


               [Child’s] parents are likely suffering from significant
               neurocognitive disorders and his mother suffers from a
               personality disorder. The parents’ mental health disorders
               interfere with their ability to appropriately care for and parent the
               child. Their mental health disorders prohibit them from having
               an awareness of their own needs as well as their child’s daily
               needs and cause them to experience bizarre and delusional
               thoughts[,] which interferes with their ability to provide for
               themselves and their child. They have, at times, been hesitant or
               reluctant to follow the recommendations of service providers
               because they are not used to doing things the way the services
               providers are recommending that they do them. They have, at
               times, behaved inappropriately in the presence of the service
       Court of Appeals of Indiana | Opinion 18A-JC-1666 | January 22, 2019        Page 7 of 14
               providers and others. They were voluntarily participating in
               some services prior to the initiation of the CHINS proceedings[;]
               however, there were still concerns about the parents’ ability to
               provide for themselves and their child even after receiving those
               services.


       Mother’s App. Vol. 2 at 27. The court then held a dispositional hearing on

       June 13, 2018. This appeal ensued.


                                       Discussion and Decision
[14]   Parents contend that DCS failed to present sufficient evidence to demonstrate

       that Child is a CHINS. Our Supreme Court has set out our standard of review:


               When reviewing a trial court’s CHINS determination, we do not
               reweigh evidence or judge witness credibility. In re S.D., 2
               N.E.3d 1283, 1286 (Ind. 2014). “Instead, we consider only the
               evidence that supports the trial court’s decision and [the]
               reasonable inferences drawn therefrom.” Id. at 1287 (citation,
               brackets, and internal quotation marks omitted). When a trial
               court supplements a CHINS judgment with findings of fact and
               conclusions of law, we apply a two-tiered standard of review.
               We consider, first, “whether the evidence supports the findings”
               and, second, “whether the findings support the judgment.” Id.
               (citation omitted). We will reverse a CHINS determination only
               if it was clearly erroneous. In re K.D., 962 N.E.2d 1249, 1253
               (Ind. 2012). A decision is clearly erroneous if the record facts do
               not support the findings or “if it applies the wrong legal standard
               to properly found facts.” Yanoff v. Muncy, 688 N.E.2d 1259, 1262
               (Ind. 1997) (citation omitted).


       Gr. J. v. Ind. Dep’t of Child Servs. (In re D.J.), 68 N.E.3d 574, 577-78 (Ind. 2017)

       (alterations in original).


       Court of Appeals of Indiana | Opinion 18A-JC-1666 | January 22, 2019         Page 8 of 14
[15]   DCS alleged that Child was a CHINS pursuant to Indiana Code Section 31-34-

       1-1 (2018), which provides that a child is a child in need of services if, before the

       child becomes eighteen 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 (B) is unlikely to be provided or accepted

       without the coercive intervention of the court.


[16]   Our Supreme Court has interpreted that statute to require “three basic elements:

       that the parent’s actions or inactions have seriously endangered the child, that the

       child’s needs are unmet, and (perhaps most critically) that those needs are

       unlikely to be met without State coercion.” In re S.D., 2 N.E.3d at 1287

       (emphasis added). “A CHINS adjudication focuses on the condition of the

       child.” N.L. v. Ind. Dep’t of Child Servs. (In re N.E.), 919 N.E.2d 102, 105 (Ind.

       2010). And, when determining whether a child is a CHINS under Section 31-

       34-1-1, the juvenile court “should consider the family’s condition not just when

       the case was filed, but also when it is heard.” In re S.D., 2 N.E.3d at 1290.


[17]   Here, Parents contend that the trial court erred when it adjudicated Child to be

       a CHINS because there was no evidence that: Child was seriously endangered

       by Parents’ actions or inactions; Child’s needs were unmet; or Child’s needs

       would go unmet in the absence of coercive intervention of the court. In

       response, DCS first contends that Child is a CHINS because Parents have

       Court of Appeals of Indiana | Opinion 18A-JC-1666 | January 22, 2019        Page 9 of 14
       “unaddressed mental health and health issues[.]” Appellee’s Br. at 29. In

       support of that contention, DCS presented evidence to the trial court that

       Mother has been diagnosed with bipolar disorder but does not take medication

       and that Mother also exhibits behaviors that are “consistent with someone with

       a personality disorder[,] specifically Schizotypal personality disorder[.]” Tr. at

       75. DCS also presented the testimony of Doctor Cook, who testified that

       Mother’s undiagnosed mental health issues “could interfere in parenting and

       understanding parenting skills[.]” Id. at 81 (emphasis added). In addition,

       DCS presented evidence that Father has a low intellect and that Father’s low

       intellect “could interfere [in] parenting[.]” Id. at 88 (emphasis added).


[18]   We must conclude that evidence of Mother’s mental health issues and Father’s

       low intellect, without more, does not demonstrate that Child has been seriously

       endangered for purposes of Indiana Code Section 31-34-1-1. Again, it is well

       settled that a “CHINS adjudication focuses on the condition of the child.” In re

       N.E., 919 N.E.2d at 105. Here, DCS did not present any evidence relevant to

       the actual impact, if any, of Mother’s mental illness or Father’s low intellect on

       Child’s safety. That is, while various service providers testified that Mother’s

       mental illness and Father’s low intellect could interfere with their ability to

       parent Child, DCS did not present any evidence to indicate that Mother’s

       mental illness or Father’s low intellect actually did, or was even likely to,

       seriously endanger Child. See In re S.D., 2 N.E.3d at 1287. Rather, the

       testimony of the service providers amounted to speculation about parenting

       issues that may or may not materialize in the future.


       Court of Appeals of Indiana | Opinion 18A-JC-1666 | January 22, 2019        Page 10 of 14
[19]   We understand that Mother’s mental illness and Father’s low intellect may be a

       cause for concern for DCS. But a cause for concern is not the touchstone of a

       CHINS determination, and an unspecified concern about what might happen in

       the future is insufficient in itself to carry the State’s burden of proof. Indeed,

       future concerns rather than present facts are not enough to support a CHINS

       determination. See J.J. v. Ind. Dep’t of Child Servs. (In re K.S.), 78 N.E.3d 740,

       745 (Ind. Ct. App. 2017). Rather, in order to prove that Child is a CHINS,

       DCS was required to present evidence that Parents’ actions or inactions have

       seriously endangered Child. That is to say, DCS was required to present

       evidence that there is a nexus between either Mother’s mental health or Father’s

       intelligence and Child’s actual endangerment. But DCS did not present any

       such evidence. Without any specific evidence that Mother’s mental illness or

       Father’s low intellect presented a serious danger or a likelihood of serious

       endangerment to Child, we must conclude that DCS failed to present evidence

       sufficient to support this purported basis for the CHINS determination.


[20]   Still, DCS also alleged that Child is a CHINS because: Parents had previously

       lived a “transient lifestyle”; their home is not suitable for young children; and

       because Parents struggle with knowing what Child should eat. Appellee’s Br. at

       27. There is no dispute that, at the time DCS filed the CHINS petition, Parents

       had previously been homeless and had had a problem maintaining a clean

       home suitable for a small child. There is also no dispute that Parents had

       problems with the storage and transportation of breast milk and, on one

       occasion, with feeding Child only baby food and water.


       Court of Appeals of Indiana | Opinion 18A-JC-1666 | January 22, 2019       Page 11 of 14
[21]   However, when determining whether a Child is a CHINS under Section 31-34-

       1-1, as is the case here, courts “‘should consider the family’s condition not just

       when the case was filed, but also when it is heard.’” In re D.J., 68 N.E.3d at 580

       (quoting In re S.D. at 1290 (citation omitted)). “Doing so avoids punishing

       parents for past mistakes when they have already corrected them.” Id. at 581.

       In other words, in a CHINS case, we give special consideration to a family’s

       current conditions.


[22]   And, here, the facts demonstrate that, at the time of the fact-finding hearing,

       Parents had resolved their prior issues with transience and cleanliness. While

       DCS had indicated concerns with the suitability and cleanliness of Parents’

       home when it filed the CHINS petition, the undisputed evidence demonstrates

       that, since Child was removed from the home, a service provider has been

       “teaching the [P]arents better ways to clean and maintain the home.”

       Appellee’s Br. at 26. Indeed, when FCM Wright visited the house, it was

       “cluttered,” but the condition of the home did not cause her any concerns. Tr.

       at 116. And even DCS concedes that, “[b]y the time of the most recent

       inspection[,] the home met minimal standards.” Appellee’s Br. at 8. Further,

       Parents had moved into their house in March of 2017, and they continued to

       live in the home at the time of the hearing.


[23]   Additionally, by the time of the fact-finding hearing, Parents had solved the

       problems related to the transportation and storage of breastmilk when they

       agreed to feed Child goat’s milk, which they store in Quality Counseling’s



       Court of Appeals of Indiana | Opinion 18A-JC-1666 | January 22, 2019     Page 12 of 14
       refrigerator and which Child “loves” and “seems to tolerate . . . well.”6 Tr. at

       54. Indeed, Parents had solved the problems related to the use and

       transportation of breastmilk “shortly” after DCS first discussed the issue with

       Parents. Id. at 179. Further, by the time of the fact-finding hearing, Parents

       had solved the problem related to feeding Child only baby food and water. The

       DCS liaison at Quality Counseling testified that Parents had since engaged in

       parenting classes with a therapist once a week, which classes included

       information regarding food and “food safety.” Id. at 146. And, although it

       took Parents “a while . . . in the . . . food safety category[,]” Parents have

       “come along . . . well.” Id.


[24]   It is well settled that “a CHINS adjudication may not be based solely on

       conditions that no longer exist.” S.S. v. Ind. Dep’t of Child Servs. (In re R.S.), 987

       N.E.2d 155, 159 (Ind. Ct. App. 2013). Parents’ prior homelessness, their unsafe

       home conditions, and their problems feeding Child inappropriate food or unsafe

       breastmilk are all conditions that no longer existed at the time of the factfinding

       hearing. Accordingly, we cannot say that DCS presented sufficient evidence to

       support a CHINS determination.




       6
          In its brief on appeal, DCS contends that, on one occasion, Mother “had to be stopped from giving Child
       expired [goat’s] milk.” Appellee’s Br. at 27. But that contention is not supported by the record. There is no
       evidence that Mother fed Child expired milk. Rather, Bejja testified that “the milk was fed to the baby after
       it’s expiring [sic] four or five days expired so I did have an emergency meeting with my staff . . . to instruct
       them to be super careful about that and we throw out the milk.” Tr. at 132. Bejja’s testimony does not make
       clear that Mother was the one who fed Child expired milk on that occasion or that Mother even knew the
       milk had expired. Moreover, that evidence does not demonstrate that the milk was necessarily unsafe.

       Court of Appeals of Indiana | Opinion 18A-JC-1666 | January 22, 2019                              Page 13 of 14
[25]   We acknowledge that the CHINS statutes do not require the juvenile court and

       DCS to wait until a child is physically or emotionally harmed to intervene. But

       the CHINS finding must be based on facts and reasonable inferences from the

       facts, not on future concerns. And it was DCS’s burden to prove that Parents’

       actions or inactions have seriously endangered Child. See In re N.E., 919

       N.E.2d at 105. Here, DCS did not present any evidence that Child was

       seriously endangered as a result of Parents’ mental health, actions, or inactions.

       See In re B.N., 969 N.E.2d at 1026. We therefore hold that the trial court erred

       when it found Child to be a CHINS, and we reverse the trial court’s judgment.


[26]   Reversed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 18A-JC-1666 | January 22, 2019    Page 14 of 14
