                                                                FILED
                                                           Mar 21 2017, 6:17 am

                                                                CLERK
                                                            Indiana Supreme Court
                                                               Court of Appeals
                                                                 and Tax Court




ATTORNEYS FOR APPELLANT M.O.                               ATTORNEYS FOR APPELLEE
(CHILD)                                                    INDIANA DEPARTMENT OF
Ruth Johnson                                               CHILD SERVICES
Valerie K. Boots                                           Curtis T. Hill, Jr.
Marion County Public Defender Agency                       Attorney General of Indiana
Appellate Division
                                                           Robert J. Henke
Indianapolis, Indiana
                                                           David E. Corey
Jill M. Acklin                                             Deputy Attorneys General
McNeely Stephenson                                         Indianapolis, Indiana
Shelbyville, Indiana
                                                           ATTORNEY FOR APPELLEE N.M.
                                                           (MOTHER)
                                                           Megan Shipley
                                                           Marion County Public Defender
                                                           Agency
                                                           Appellate Division
                                                           Indianapolis, Indiana
                                                           ATTORNEY FOR APPELLEE MI.O.
                                                           (FATHER)
                                                           Darren Bedwell
                                                           Marion County Public Defender
                                                           Agency
                                                           Appellate Division
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Opinion 49A05-1607-JC-1668 | March 21, 2017                Page 1 of 13
      In the Matter of M.O., A Child                             March 21, 2017
      in Need of Services,                                       Court of Appeals Case No.
                                                                 49A05-1607-JC-1668
      M.O., Child,
                                                                 Appeal from the
      Appellant-Respondent,                                      Marion Superior Court
              v.                                                 The Honorable
                                                                 Marilyn A. Moores, Judge
                                                                 The Honorable
      Indiana Department of Child                                Geoffrey Gaither, Magistrate
      Services,
                                                                 Trial Court Cause No.
      Appellee-Petitioner,                                       49D09-1505-JC-1729

      N.M., Mother, and Mi.O.,
      Father,
      Appellees-Respondents,

      and

      Child Advocates, Inc.,

      Appellee-Guardian ad Litem.




      Kirsch, Judge.


[1]   M.O. (“Child”) appeals the juvenile court’s adjudication, finding her to be a

      Child in Need of Services (“CHINS”). We consolidate and restate the issues

      raised by the parties as:


              I.       Whether the juvenile court erred in adjudicating Child as a
                       CHINS on grounds different than those set forth in the
                       CHINS petition; and




      Court of Appeals of Indiana | Opinion 49A05-1607-JC-1668 | March 21, 2017              Page 2 of 13
              II.      Whether there was sufficient evidence presented to support
                       the CHINS adjudication.


[2]   We affirm.


                                  Facts and Procedural History
[3]   Child was born on November 11, 1998 to N.M. (“Mother”) and Mi.O.

      (“Father”) (together, “Parents”). Child was sixteen at the time that the present

      CHINS case was filed. Child gave birth to her first son, J., when she was

      fourteen years old, and J. was two years old when the present case was filed.

      The Indiana Department of Child Services (“DCS”) had an open CHINS case

      for J., and he had been placed with Father. Child gave birth to her second son,

      A., on March 31, 2015. When the present case was filed, Child and A. were

      living at the St. Joseph Carmelite Home in East Chicago (“Carmelite Home”).

      Child’s placement in the Carmelite Home was arranged by the Marion County

      Probation Department due to the fact that Child was on probation for a juvenile

      delinquency case.


[4]   On May 3, 2015, DCS received a report that the probation department was

      planning to close Child’s case and that Child’s placement in the Carmelite

      Home would end when the case was closed. At that time, DCS family case

      manager Shannon Pickering (“FCM Pickering”) began an assessment of Child,

      but was unable to speak with Child because Child refused to speak with anyone

      from DCS on the phone. FCM Pickering spoke with both Mother and Father

      to determine if Child could live with either of them. Father told FCM


      Court of Appeals of Indiana | Opinion 49A05-1607-JC-1668 | March 21, 2017   Page 3 of 13
      Pickering that he was not willing to have Child placed in his home because he

      was concerned that Child was still exhibiting aggressive behaviors toward

      adults and authority figures and worried that she would continue those

      behaviors if she was placed in his home. Mother refused to take a drug screen,

      which was a prerequisite to having Child placed in her home, and FCM

      Pickering, therefore, did not feel comfortable placing Child in Mother’s home.

      Based on this information, FCM Pickering and her supervisors believed that

      coercive intervention was necessary to provide Child with housing and mental

      health treatment. On May 27, 2015, DCS filed a petition alleging that Child

      was a CHINS pursuant to Indiana Code section 31-34-1-1 (“CHINS 1”), which

      involves parental inaction or neglect. On June 25, 2015, Parents filed a notice

      of intent that they wished to assert that Child was a CHINS pursuant to Indiana

      Code section 31-34-1-6 (“CHINS 6”), which involves the child’s own behaviors

      endangering herself or others.


[5]   Child left the Carmelite House at the end of June 2015 and was placed in

      relative care with her cousin on July 21, 2015. About a week after being placed

      with her cousin, Child ran away after a confrontation with her cousin. On July

      30, 2015, a pretrial conference was held, at which FCM Brittny Smith (“FCM

      Smith”) recommended emergency shelter care for Child because, at that time,

      “no relative [was] able to handle [Child’s] behaviors.” Tr. at 11. Mother

      testified at the hearing that Child could not live with her because Mother did

      not want to jeopardize her Section 8 housing, which she needed for herself and

      the three other children living with her. Id. at 23.


      Court of Appeals of Indiana | Opinion 49A05-1607-JC-1668 | March 21, 2017   Page 4 of 13
[6]   Child failed to appear for the pretrial conference and, instead, participated

      telephonically. Child informed the court that she was at a friend’s apartment

      and gave the address; while Child was still on the phone during the hearing,

      FCM Smith went to the address to attempt to get Child and bring her to the

      hearing. Child was not at the address she provided, but FCM Smith saw Child

      open and close the door of another apartment. Although the juvenile court

      ordered Child to go outside, she refused and told the court she had left out the

      back door. Child also told the juvenile court that she had lied about being at

      that apartment complex and that she was actually on the south side of

      Indianapolis. FCM Smith was unable to locate Child at that time. While

      speaking with the juvenile court, Child stated that she would not go to any of

      the placements ordered by DCS and the court because she did not want to go

      there. Id. at 37. The juvenile court ordered Child to report to the juvenile court

      by 5:30 p.m. that evening, and Child responded, “I’ll be there when I feel like

      it.” Id. at 51-52. On August 6, 2015, the juvenile court issued an order for

      Child to appear at a show cause hearing; although Child was told about the

      hearing by her attorney and FCM Smith, Child did not appear.


[7]   A fact-finding hearing was held on November 6, 2015, at which Child did not

      appear. At the time of the hearing, DCS had not had any contact with Child

      since the first week in August, and she was described as being “on the run”

      since July. Id. at 112. During the hearing, FCM Smith testified that Father

      would only consider allowing Child to live with him if she successfully received

      mental health treatment because he was concerned for the safety of the other


      Court of Appeals of Indiana | Opinion 49A05-1607-JC-1668 | March 21, 2017   Page 5 of 13
      children in his home. Id. at 115. FCM Smith did not recommend placing

      Child with Mother because Mother had “numerous reports called in on her

      current home,” Mother was allegedly in a relationship that involved domestic

      violence, and Child did not want to be placed with Mother. Id. at 114, 124.

      The juvenile court asked FCM Smith if she believed that Child was a CHINS

      pursuant to CHINS 1 or CHINS 6. Id. at 133-34. FCM Smith initially

      responded that DCS believed that Child was a CHINS pursuant to CHINS 1,

      but after more questioning, she stated that, based on her experience, she

      believed Child to be a CHINS pursuant to CHINS 6. Id. at 134-35.


[8]   After DCS finished presenting its evidence, Parents moved for judgment on the

      evidence as to DCS’s claim pursuant to CHINS 1. The juvenile court found

      that DCS had failed to meet its burden on the claim of CHINS 1 and then

      allowed Parents to present evidence that Child was a CHINS pursuant to

      CHINS 6. Mother offered into evidence the transcript of the pretrial hearing, in

      which Child failed to appear and avoided meeting with DCS, and emails

      between FCM Smith and someone from Carmelite Home discussing Child’s

      behavior while staying there. Father testified that Child was a threat to herself

      and others and in need of mental health treatment and that she had attempted

      suicide a couple of years prior to the hearing. Id. at 157-58.


[9]   The juvenile court then took judicial notice of its own records that showed that

      Child had sixteen referrals to the juvenile court, was a respondent in a

      termination of parental rights case as to J., had been the subject of a previous

      CHINS case, had five prior charges for being a runaway, had previously failed

      Court of Appeals of Indiana | Opinion 49A05-1607-JC-1668 | March 21, 2017   Page 6 of 13
       referrals for services, and had true findings for theft, resisting law enforcement,

       and modification of her probation. Id. at 158-59. The juvenile court found

       Child to be a CHINS pursuant to CHINS 6. Child now appeals.


                                       Discussion and Decision

                                 I.       Grounds for CHINS Petition
[10]   Both Child and DCS argue that the juvenile court erred in adjudicating Child a

       CHINS on grounds different from those set forth in the CHINS petition filed by

       DCS. Specifically, Child and DCS contend that it was error for the juvenile

       court to adjudicate Child as a CHINS pursuant to CHINS 6, which requires

       proof that the child substantially endangers his or her own health or the health

       of another, even though the CHINS petition filed by DCS alleged that Child

       was a CHINS pursuant to CHINS 1, which requires proof that the child’s

       mental or physical condition is seriously endangered by the actions or inactions

       of the parents.


[11]   In the case of In re V.C., 867 N.E.2d 167 (Ind. Ct. App. 2007), this court was

       presented with the issue of whether the trial court erred in adjudicating the child

       a CHINS as to the mother on grounds different from those set forth in the

       CHINS petition, and it turned to Indiana Trial Rule 15(B) to resolve the issue.

       Id. at 177. Pursuant to Indiana Trial Rule 15(B), issues not set out in the

       pleadings may be tried by the express or implied consent of the parties. Id. at

       178. “The function of the issues, whether formed by the pleadings, pre-trial

       orders, or contentions of the parties, is to provide a guide for the parties and the


       Court of Appeals of Indiana | Opinion 49A05-1607-JC-1668 | March 21, 2017   Page 7 of 13
       court as they proceed through trial.” Id. Although either party may demand

       strict adherence to the issues raised before trial, if the trial court allows

       introduction of an issue not raised before trial, an objecting party may seek a

       reasonable continuance in order to prepare to litigate the new issue. Id.

       However, where the trial concludes without objection to the new issue, the

       evidence actually presented at trial controls. Id. Therefore, “neither pleadings,

       pre-trial orders, nor theories proposed by the parties should frustrate the trier of

       fact from finding the facts that a preponderance of the evidence permits.” Id.


[12]   As fairness dictates certain restraints, there are limits to the amendment of

       pleadings through implied consent. Id. Parties should be given some form of

       notice that an issue not pleaded is now before the court. Id. This notice can be

       overt and be expressly raised prior to, or sometime during, the trial, or it can be

       implied “as where the evidence presented at trial is such that a reasonably

       competent attorney would have recognized that the unpleaded issue was being

       litigated.” Id.


[13]   In the present case, we also turn to Trial Rule 15(B) to resolve the issue of

       whether the juvenile court erred in adjudicating Child a CHINS on grounds

       different from those set forth in the CHINS petition filed by DCS. Consent will

       be found if DCS and Child had overt or implied notice that evidence was being

       presented that Child was a CHINS pursuant to CHINS 6. On May 27, 2015,

       DCS filed a petition alleging that Child was a CHINS pursuant to CHINS 1,

       which involves parental inaction or neglect. On June 25, 2015, Parents filed a

       notice of intent that they wished to assert that Child was a CHINS pursuant to

       Court of Appeals of Indiana | Opinion 49A05-1607-JC-1668 | March 21, 2017       Page 8 of 13
       CHINS 6, which involves the child’s own behaviors endangering herself or

       others. Neither DCS nor Child objected to the notice of intent of Parents to

       pursue a CHINS 6 adjudication. This filing by Parents put DCS and Child on

       notice that Parents intended to present evidence that Child was a CHINS due to

       Child substantially endangering her own health or the health of another and

       that such would be an issue at trial.


[14]   Additionally, at trial, after DCS presented its case, Parents moved for judgment

       on the evidence as to DCS’s claim under CHINS 1. The juvenile court found

       that DCS had failed to meet its burden on the claim of CHINS 1 and allowed

       Parents to present evidence that Child was a CHINS pursuant to CHINS 6.

       This evidence included the transcript of the pretrial hearing, in which Child

       failed to appear and avoided meeting with DCS, emails between FCM Smith

       and someone from Carmelite Home discussing Child’s behavior while staying

       there, and testimony that Child was a threat to herself and others and in need of

       mental health treatment and that she had attempted suicide a couple of years

       prior to the hearing.


[15]   The purpose behind Trial Rule 15(B) is to provide the parties with some

       flexibility in litigating a case, and to promote justice by permitting evidence

       brought in at trial to determine the liability of the parties. In re V.C., 867 N.E.2d

       at 169. The evidence presented in the present case clearly indicates an issue

       regarding Child’s actions that substantially endangered Child’s health or the

       health of another was raised. This issue was therefore tried by consent under



       Court of Appeals of Indiana | Opinion 49A05-1607-JC-1668 | March 21, 2017   Page 9 of 13
       Trial Rule 15(B), and the juvenile court did not err in adjudicating Child as a

       CHINS on grounds different than those set forth in the CHINS petition.


                                         II.      Sufficient Evidence
[16]   CHINS proceedings are civil actions, and therefore, it must be proven by a

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

       re L.C., 23 N.E.3d 37, 39 (Ind. Ct. App. 2015) (citing In re N.E., 919 N.E.2d

       102, 105 (Ind. 2010)), trans. denied. When we review a CHINS determination,

       we neither reweigh the evidence nor judge the credibility of the witnesses. Id.

       We consider only the evidence that supports the juvenile court’s decision and

       the reasonable inferences drawn therefrom. Id. at 39-40. We will reverse only

       upon a showing that the decision of the juvenile court was clearly erroneous.

       Id. at 40.


[17]   Child argues that the juvenile court erred in determining that she was a CHINS

       under CHINS 6 because there was insufficient evidence to support the

       adjudication. Child specifically contends that the evidence did not support that

       she substantially endangered her own health or the health of another individual.

       She asserts that her actions were defiant and delinquent, but did not rise to the

       level of substantially endangering herself or others.


[18]   Pursuant to Indiana Code section 31-34-1-6,

               A child is a child in need of services if before the child becomes
               eighteen (18) years of age:



       Court of Appeals of Indiana | Opinion 49A05-1607-JC-1668 | March 21, 2017    Page 10 of 13
               (1) the child substantially endangers the child’s own health or the
               health of another individual; 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.


       Therefore, there were three elements that were required to be proven for the

       juvenile court to adjudicate Child to be a CHINS under CHINS 6: (1) Child

       was under the age of eighteen; (2) Child substantially endangered her own

       health or the health of another individual; and (3) Child needed care, treatment,

       or rehabilitation that she was not receiving and that she was unlikely to be

       provided or accept without the coercive intervention of the court. Child does

       not contend that there was not sufficient evidence to prove that she was under

       the age of eighteen or that she needs care, treatment, or rehabilitation that she is

       not receiving and that she is unlikely to receive without the coercive

       intervention of the court. We, therefore, only focus on whether there was

       sufficient evidence to prove that she substantially endangered her own health or

       that of another.


[19]   Here, the evidence presented showed that Child, who was only sixteen at the

       time the CHINS case was initiated, had a history of running away from her

       placements. At the time of the pretrial conference on July 30, 2015, Child had

       run away from her cousin’s home where she was placed after completing her

       Court of Appeals of Indiana | Opinion 49A05-1607-JC-1668 | March 21, 2017   Page 11 of 13
       time at the Carmelite Home. During the hearing, the juvenile court spoke with

       Child on the telephone and ordered her to appear at the court, but Child

       refused. Tr. at 51-52. Child was still on the run and did not appear at the show

       cause hearing a week later; she also remained on the run at the time of the fact-

       finding hearing on November 6, 2015. At the fact-finding hearing, the

       transcript of the pretrial hearing, which reflected the refusal of Child to follow

       the juvenile court’s order, was admitted into evidence. The juvenile court also

       took judicial notice of the fact that Child had five prior charges for being a

       runaway. The evidence that Child was on the run to avoid the juvenile court’s

       and DCS’s authority supported the juvenile court’s determination that Child

       substantially endangered her health due to the fact that bad things could happen

       to a young girl out on her own trying to avoid authority.


[20]   Additionally, the juvenile court took judicial notice of its own records that

       showed that Child had sixteen referrals to the juvenile court, was a respondent

       in a termination of parental rights case as to J., had been the subject of a

       previous CHINS case, had previously failed referrals for services, and had true

       findings for theft, resisting law enforcement, and modification of her probation.

       Id. at 158-59. Mother offered into evidence emails between FCM Smith and

       someone from Carmelite Home discussing Child’s behavior while staying there.

       Father testified that Child was a threat to herself and others and in need of

       mental health treatment and that she had attempted suicide a couple of years

       prior to the hearing. Id. at 157-58. We conclude that, based on the evidence

       presented at the fact-finding hearing, it was proven by a preponderance of the


       Court of Appeals of Indiana | Opinion 49A05-1607-JC-1668 | March 21, 2017   Page 12 of 13
       evidence that Child substantially endangered her own health or the health of

       another individual and that Child was a CHINS as defined by CHINS 6. The

       juvenile court did not err in adjudicating Child to be a CHINS pursuant to

       CHINS 6.


[21]   Affirmed.


[22]   Robb, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 49A05-1607-JC-1668 | March 21, 2017   Page 13 of 13
