                                                                                   FILED
                                                                               Feb 19 2018, 8:44 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Andrew Bernlohr                                            Curtis T. Hill, Jr.
Indianapolis, Indiana                                      Attorney General of Indiana

                                                           David E. Corey
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of E.Y., Child in                            February 19, 2018
Need of Services,                                          Court of Appeals Case No.
                                                           49A02-1707-JC-1634
       and
                                                           Appeal from the Marion Superior
U.F. (Mother),                                             Court
Appellant-Respondent,                                      The Honorable Marilyn A.
                                                           Moores, Judge
        v.
                                                           The Honorable Beth L. Jansen,
                                                           Magistrate
Indiana Department of Child
                                                           Trial Court Cause No.
Services,
                                                           49D09-1702-JC-422
Appellee-Petitioner.



Najam, Judge.




Court of Appeals of Indiana | Opinion 49A02-1707-JC-1634 | February 19, 2018                           Page 1 of 17
                                         Statement of the Case
[1]   U.F. (“Mother”) appeals the trial court’s adjudication of her son, E.Y.

      (“Child”), as a child in need of services (“CHINS”). Mother raises a single

      issue for our review, namely, whether the trial court erred when it found that

      Child is a CHINS. We reverse.


                                  Facts and Procedural History
[2]   Mother is the sole adoptive parent of Child, who was born on November 13,

      2006. On February 3, 2017, Detective Joshua Morgan, an officer with the

      behavioral health unit of the Indianapolis Metropolitan Police Department

      (“IMPD”), and Tammy Johnson, a mobile crisis specialist with Eskenazi

      Hospital, went to a hotel room where Mother and Child were living. Detective

      Morgan had been alerted by someone that Mother might be in crisis, and so he

      had contacted her by telephone to see whether she needed any help. Mother

      initially denied needing help, but she proceeded to leave Detective Morgan

      twenty-five voice mails over the following two days, which led Detective

      Morgan and Johnson to make the in-person visit.


[3]   When Detective Morgan and Johnson arrived at the hotel room, Child was at

      school, and Mother was packing their things to move to another hotel. Mother

      stated that they were “no longer welcome” at that hotel. Tr. at 10. Mother also

      stated that she “was hearing voices through the TV from a former employer[.]

      [S]he couldn’t really make out what the voices were saying to her, but that they

      were following her wherever she was going.” Id. at 11. Detective Morgan and


      Court of Appeals of Indiana | Opinion 49A02-1707-JC-1634 | February 19, 2018   Page 2 of 17
      Johnson “thought that [Mother] was suffering from a mental illness” and

      transported her to Eskenazi for an evaluation. Id. Detective Morgan contacted

      Child’s maternal grandmother and arranged for her to pick up Child from

      school that day.


[4]   Jamie Hobbick, Family Case Manager (“FCM”) for the Department of Child

      Services (“DCS”), interviewed Mother at the hospital and spoke with Child at a

      DCS office. After talking to Child, Hobbick took Child to Riley Children’s

      Hospital for treatment for his asthma. Child did not have any medication for

      his asthma at that time.


[5]   DCS placed Child in foster care and filed a petition alleging that Child was a

      CHINS because Mother was hearing voices and did not have stable housing.

      After an initial hearing on the CHINS petition on February 8, the trial court

      “authorize[d] DCS to put in place any services that [M]other might want to

      participate in.”1 Appellant’s App. at 32. Accordingly, DCS referred Mother to

      home-based services “to stabilize her home and to ensure that she had

      employment.” Tr. at 32. Velma Bond, a home-based case manager, thereafter

      attempted to contact Mother several times, but Mother never attended any

      sessions with Bond. Accordingly, Bond discharged Mother for




      1
        Indiana Code Section 31-34-16-3 provides for parental participation orders, which may include
      participation in mental health treatment. But those orders are authorized only after a child has been
      adjudicated a CHINS. Here, because the CHINS petition was only pending, the trial court was not
      authorized by statute to order Mother to participate in services.

      Court of Appeals of Indiana | Opinion 49A02-1707-JC-1634 | February 19, 2018                      Page 3 of 17
      “noncompliance” with the recommended, but not court-ordered, home-based

      services. Id. at 33.


[6]   Carla Davenport, a home-based therapist, supervised eight visits between

      Mother and Child beginning in April 2017. Davenport observed that


              [t]here is not a lot of interaction between [Mother] and her son.
              It is interaction when it is necessary. She does take him to go eat.
              She takes him to get haircuts, she takes him to the library and
              things like that, but there is not a lot of talking or affection or any
              of that stuff during the visits.


      Id. at 22. Davenport further thought that Mother needed a psychological

      evaluation “to get a little bit deeper down to find out what is going on.” Id. at

      23. Davenport, a therapist who is not qualified to make medical diagnoses,

      observed that


              there are times that [Mother] will shake her head and she will
              kind of laugh to herself, there are times when—it kind of seems
              like she is not there at the time, or she is off somewhere else in
              her mind. It pretty much looks like a schizophrenic diagnosis to
              me.


      Id. at 24. But, despite her apparent concerns, Davenport did not refer Mother

      for a psychological evaluation. Instead, Davenport opined that Mother would

      not submit to an evaluation unless the court ordered one.


[7]   Following a fact-finding hearing on the CHINS petition on May 11, the trial

      court found that Child was a CHINS and entered the following findings and

      conclusions:

      Court of Appeals of Indiana | Opinion 49A02-1707-JC-1634 | February 19, 2018   Page 4 of 17
        FINDINGS OF FACT

        The Court finds the following by preponderance of the evidence:

        l. All events in the Petition occurred in Marion County, Indiana.

        2. Parties stipulated that the age and date of birth of the child is
        correct as listed in the petition and that mother is [E.F.]. The
        parties further stipulate that this is single parent adoption,
        therefore there is no Father.

        3. Detective Morgan is a detective with the behavioral health
        unit of IMPD. While in the course of his duties[,] he has come
        into contact with the Mother . . . on multiple occasions. The first
        contact being in February of 201[7]. After receiving multiple
        voice mails from Mother he went to the hotel where Mother was
        living. Mother was mentally unstable and this is evidenced by
        her statements that she was hearing voices from the TV. Mother
        claimed that these voices were from former employer and the
        voices would follow her from the television. At that time,
        Mother was caring for the child and did not have a satisfactory
        plan to care for the child because she was being forced out of the
        hotel, did not have job, and was suffering from mental illness and
        was not being properly medicated.

        4. Detective Morgan involuntarily detained Mother as a result
        the danger she presented to herself and the child.

        5. CPS investigator Hobbick conducted an investigation after
        receiving information from IMPD. After speaking to all parties
        and hospital staff, the child was taken into custody after receiving
        necessary medical treatment.

        6. The child was removed from Mother’s care as a result of
        Mother’s mental illness and lack of stable living environment.



Court of Appeals of Indiana | Opinion 49A02-1707-JC-1634 | February 19, 2018   Page 5 of 17
        7. Ms. Carla Davenport has been working with the Mother as
        home-based therapist and visit supervisor since April of 2017.
        Mother has mental health needs and would benefit from mental
        health evaluations but she is not cooperative and will not
        participate in such treatment unless the coercive intervention of
        the Court is present.

        8. Mother’s parenting is suspect and deficient as a result of her
        mental illness.

        9. Continued supervised time is needed and Mother needs more
        intensive therapy.

        10. Velma Bond was assigned to work with Mother as her home-
        based case manager but Mother has not been cooperative or
        compliant thereby necessitating coercive intervention of the
        Court.

        11. The services needed for the child’s well-being include
        continued out of home placement, mental health treatment for
        Mother and home-based case management to assist in obtaining
        and maintaining stable housing, and home-based therapy to
        ensure continuing mental health needs are met.

        CONCLUSIONS OF LAW

        1. This Court has jurisdiction over the parties and subject matter
        pursuant to Indiana Code §31-30-1-1(2) and Indiana Code §31-
        30-2-1.

        2. All events in the Children In Need of Services Petition and the
        CPS investigation occurred in Marion County, Indiana.

        3. This child is a child in need of services and DCS has shown
        that by a preponderance of the evidence.



Court of Appeals of Indiana | Opinion 49A02-1707-JC-1634 | February 19, 2018   Page 6 of 17
              4. The child needs care and treatment that will not be provided
              without the coercive intervention of the Court.


      Appellant’s App. at 57-58. The trial court held a dispositional hearing on June

      22. This appeal ensued.


                                      Discussion and Decision
[8]   Mother contends that DCS failed to present sufficient evidence to demonstrate

      that Child is a CHINS. Our Supreme Court has recently 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 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 49A02-1707-JC-1634 | February 19, 2018   Page 7 of 17
[9]    Here, Mother contends the trial court erred in adjudicating Child a CHINS

       because there was no evidence that: Child was seriously endangered as a result

       of Mother’s apparent mental illness; Child’s needs were unmet; or Child’s needs

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

       must agree.


[10]   In J.M. v. Indiana Department of Child Services (In re N.C.), 72 N.E.3d 519, 524

       (Ind. Ct. App. 2017), this court reiterated that


               [t]he 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
               102, 105-06 (Ind. 2010). 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 [at] 1287[.] 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 needs 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.


       (Emphases added.)


       Court of Appeals of Indiana | Opinion 49A02-1707-JC-1634 | February 19, 2018   Page 8 of 17
[11]   Initially, we note that DCS provided no evidence that Mother has ever been

       diagnosed with or treated for a mental illness. Indeed, DCS did not even refer

       Mother for a psychiatric evaluation. That being said, for purposes of this

       appeal, we will assume, based on the undisputed evidence that Mother was

       hearing the voice of a former employer coming through her television in early

       February 2017, that, at that time, Mother was likely suffering a mental illness.

       But DCS presented no evidence that Mother continued to have that specific

       delusion at the time of the fact-finding hearing. Rather, DCS presented

       Davenport’s testimony that, during the more recent supervised visits, Mother

       was not affectionate with Child and appeared to suffer from schizophrenia.

       However, again, there was no evidence that a medical diagnosis had been

       made2 or that treatment had been prescribed for Mother.


[12]   In any event, again, it is well settled that “the focus of a CHINS adjudication is

       on the condition of the child alone.” In re N.C., 72 N.E.3d at 524. And here,

       DCS presented no evidence relevant to the impact, if any, of Mother’s mental

       illness on Child’s condition.3 Indeed, the evidence does not support a

       reasonable inference that, at the time of the fact-finding hearing, Mother’s

       mental health endangered Child at all, let alone that her mental health seriously

       endangered him. See id. To the contrary, Davenport expressly acknowledged




       2
           Davenport acknowledged in her testimony that she was not qualified to make diagnoses.
       3
         We note that, in the context of the termination of parental rights, a parent’s mental illness, without more, is
       not grounds for terminating parental rights. See, e.g., A.A. v. Ind. Dep’t. of Child Servs. (In re V.A.), 51 N.E.3d
       1140, 1148 (Ind. 2016).

       Court of Appeals of Indiana | Opinion 49A02-1707-JC-1634 | February 19, 2018                          Page 9 of 17
       that Mother was meeting Child’s needs. And while Davenport testified that

       Mother did not interact with Child other than to provide for his needs, there

       was no evidence regarding what that lack of interaction or lack of affection

       meant in terms of any harm to Child. As our Supreme Court has recognized,

       “it is an unfortunate instance for any child to experience the ‘emotional turmoil’

       and difficulties of living with a parent suffering from mental illness[.]” In re

       V.A., 51 N.E.3d at 1148. But that does not mean that a parent’s mental illness

       necessarily presents a serious danger to a child.


[13]   While Detective Morgan testified that, in February 2017, he believed that

       Mother “was a danger to herself and her son” because of her delusions,

       Detective Morgan did not explain the basis for that opinion and, in any case,

       there was no evidence that Mother presented any danger to either herself or her

       son at any time after Detective Morgan’s interaction with Mother in early

       February 2017. Tr. at 12. As our Supreme Court recently noted, “[w]hen

       determining CHINS status under Section 31-34-1-1, particularly the ‘coercive

       intervention’ element, courts ‘should consider the family’s condition not just

       when the case was filed, but also when it is heard.’ Doing so avoids punishing

       parents for past mistakes when they have already corrected them.” In re D.J.,

       68 N.E.3d at 580-81 (quoting In re S.D., 2 N.E.3d at 1289-90). Here, without

       any evidence that Mother posed a danger to Child after Detective Morgan met




       Court of Appeals of Indiana | Opinion 49A02-1707-JC-1634 | February 19, 2018   Page 10 of 17
       Mother in early February 2017, we cannot say that the evidence supports the

       CHINS finding.4


[14]   In addition to Mother’s mental illness, DCS and the trial court cited Mother’s

       lack of stable housing as a reason for the CHINS finding. But, while DCS

       presented evidence that, on February 3, Mother was forced to leave the hotel

       where she and Child were living, the undisputed evidence shows that Mother

       had money and planned to move to another hotel that day. DCS presented no

       evidence that Mother and Child were homeless or that Mother moved around

       from place to place other than on that one occasion. Indeed, FCM Hobbick

       testified as follows:


               Q: So since February eighth, you haven’t had any contact with
               [M]other?

               A: No.

               Q: Since that point in time, you haven’t viewed her home
               environment?

               A: No.

               Q: You don’t know where she is living?

               A: No.

               Q: You don’t know whether it is appropriate for the child?




       4
         We note that, other than Child not having medication for his asthma in February 2017, there is no
       evidence that Mother failed to provide appropriate medical care for Child.

       Court of Appeals of Indiana | Opinion 49A02-1707-JC-1634 | February 19, 2018                  Page 11 of 17
                A: Nope.


       Tr. at 20.5 Although the trial court may have been concerned that, at some

       point, Mother would run out of money or would be forced to leave hotels with

       some frequency because of her mental illness or some other reason, DCS simply

       did not present any such evidence at the fact-finding hearing. See J.J. v. Ind.

       Dep’t of Child Servs. (In re K.S.), 78 N.E.3d 740, 745 (Ind. Ct. App. 2017)

       (holding trial court could only speculate that mother and child would be unable

       to live with mother’s cousin long-term and noting that future concerns rather

       than present facts are not enough to support a CHINS adjudication). The

       evidence was insufficient to show that Mother lacked stable housing. See id.


[15]   As set forth in the relevant CHINS statute, it is DCS’s burden to prove that a

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

       child’s specific needs have not been met. Id. And as our Supreme Court has

       held, “State intrusion is warranted only when parents lack the ability to provide

       for their children.” In re N.C., 72 N.E.3d at 524. Here, DCS did not present

       evidence to support a reasonable inference that Mother’s mental illness

       impaired her ability to provide for Child or that Child was harmed as a result of

       Mother’s mental illness. Thus, DCS did not sustain its burden to show that

       Child was seriously endangered as a result of Mother’s mental illness, that his



       5
         Further, neither Mother’s purported lack of contact with DCS nor her “noncompliance” with DCS’s
       services supports the trial court’s judgment. The trial court’s order from the initial hearing only compelled
       Mother to participate in services that she “might want to participate in,” which did not compel Mother to
       participate with DCS at all. Appellant’s App. at 32.

       Court of Appeals of Indiana | Opinion 49A02-1707-JC-1634 | February 19, 2018                      Page 12 of 17
       needs were unmet, or that his needs would go unmet in the absence of the

       coercive intervention of the court.


[16]   We hold that the trial court clearly erred when it found Child to be a CHINS.

       We acknowledge the concern expressed by the dissent that we err on the side of

       caution, especially where the parent is uncooperative with the DCS

       investigation. But a CHINS finding must be fact-based, and here the evidence

       is insufficient to support the finding. And, while we share the trial court’s

       concern that Mother needs treatment for her mental illness, without evidence to

       support a CHINS determination, neither DCS nor our courts can compel such

       treatment.


[17]   Reversed.


       Mathias, J., concurs.


       Barnes, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 49A02-1707-JC-1634 | February 19, 2018   Page 13 of 17
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       In the Matter of E.Y., Child in
       Need of Services,                                          Court of Appeals Case No.
                                                                  49A02-1707-JC-1634
                and
       U.F. (Mother),
       Appellant-Respondent,

               v.

       Indiana Department of Child
       Services,
       Appellee-Petitioner.



       Barnes, Judge, dissenting.


[18]   I respectfully dissent. I am not opposed to reversing a CHINS adjudication

       when the evidence to support it is entirely lacking. See J.M. & T.K. v. Indiana

       Dep’t of Child Servs., 83 N.E.3d 1256 (Ind. Ct. App. 2017) (authoring opinion

       reversing CHINS adjudication), trans. denied; J.M. v. Indiana Dep’t of Child Servs.,

       72 N.E.3d 519 (Ind. Ct. App. 2017) (concurring in opinion reversing CHINS

       adjudication). I also would admit that the evidence here was not the strongest.




       Court of Appeals of Indiana | Opinion 49A02-1707-JC-1634 | February 19, 2018           Page 14 of 17
       But, I believe it was sufficient to meet DCS’s burden of proving by a

       preponderance of the evidence that E.Y. is a CHINS.


[19]   The first element of the CHINS case that DCS had to prove here, aside from

       E.Y.’s age, was whether E.Y.’s physical or mental condition was seriously

       impaired or endangered by Mother’s inability, refusal, or neglect to supply E.Y.

       with necessary food, clothing, shelter, medical care, education, or supervision.

       See Gr.J. & J.J. v. Indiana Dep’t of Child Servs., 68 N.E.3d 574, 580 (Ind. 2017)

       (quoting Ind. Code § 31-34-1-1). It is true that there is a lack of direct evidence

       that E.Y. was suffering emotionally or physically at the time of the CHINS

       hearing or at any time. However, “the CHINS statute does not require the

       juvenile court and DCS to wait until a child is physically or emotionally

       harmed to intervene; rather, a child may be determined to be a CHINS if his or

       her physical or mental condition is endangered.” K.B. v. Indiana Dep’t of Child

       Servs., 24 N.E.3d 997, 1003 (Ind. Ct. App. 2015).


[20]   There was evidence here that when police and DCS first encountered Mother,

       she was unemployed and hearing voices of her former employer coming from a

       TV set. She and E.Y. were being forced out of the hotel where they were

       currently living; even if Mother had another place to stay, this along with her

       lack of employment is indicative of an unstable lifestyle that could seriously

       endanger E.Y. E.Y. was taken by DCS to the hospital at that time for

       treatment of his asthma, which was not being properly treated while in

       Mother’s care. An untreated serious medical condition like asthma poses a

       great risk to a child.

       Court of Appeals of Indiana | Opinion 49A02-1707-JC-1634 | February 19, 2018   Page 15 of 17
[21]   The majority correctly notes that evidence regarding Mother and E.Y.’s

       situation at the time of the CHINS hearing itself, three months after the petition

       was filed, is lacking. I agree that usually we are supposed to consider the

       evidence at the time of hearing, not just the filing of the petition. This lack of

       evidence, however, can be chalked up to Mother’s refusal to cooperate and

       communicate with DCS. DCS caseworker Tianna Ceaser, who took over the

       case at the end of March or approximately six weeks before the CHINS

       hearing, testified that she attempted to call Mother five or six times, that she

       only was able to speak with Mother possibly twice, and one of those times

       Mother told her she had the wrong number and hung up. Mother also was

       referred to a home-based therapist, who at the time of the CHINS hearing was

       preparing to discharge Mother from the program because of her complete

       noncompliance with it; the therapist was never able to schedule an appointment

       with Mother despite nine attempts to do so over a one-month period. Under

       the circumstances, I believe it is proper to focus primarily on the available

       evidence from the time of the filing of the CHINS petition, and not “reward”

       stonewalling by lack of action.


[22]   I reach a similar conclusion regarding Mother’s mental health. The fact that

       she never was diagnosed by a medical professional as suffering from a mental

       illness does not mean that we should ignore the observations by the police

       detective, who was told by Mother that she was hearing strange voices coming

       from the TV, and the visitation coordinator’s suspicion that Mother had mental

       health problems after observing her interaction and lack of interaction with


       Court of Appeals of Indiana | Opinion 49A02-1707-JC-1634 | February 19, 2018   Page 16 of 17
       E.Y. Given their observations, it was entirely reasonable for DCS to request

       that Mother undergo a psychological evaluation. She refused to voluntarily do

       so. I believe the majority places DCS in the impossible situation of having good

       reason to suspect Mother has a mental illness but lacking the means to prove

       that she has one because there is no CHINS finding and it cannot force Mother

       to undergo a psychological evaluation and, therefore, it cannot prove E.Y. is a

       CHINS.6 I believe it prudent to err on the side of caution and not to allow a

       potentially dangerous situation to fester.


[23]   Mother’s refusal to cooperate with DCS in this and other matters is evidence

       that the coercive intervention of a court is necessary to ensure E.Y.’s care and

       well-being, which is another element of a CHINS proceeding. See Gr.J. & J.J.,

       68 N.E.3d at 580. This lack of cooperation also distinguishes this case from the

       J.M. & T.K. case, in which the parents fully cooperated with DCS after the filing

       of the CHINS petition. See J.M. & T.K., 83 N.E.3d at 1262. I believe we should

       defer to the trial court’s judgment here and affirm its finding that E.Y. is a

       CHINS.




       6
        I also do not believe that the fact that a parent’s mental illness alone cannot support a termination of
       parental rights, as noted by the majority, means such illness cannot be considered in a CHINS proceeding,
       which has different goals and a lower burden of proof.

       Court of Appeals of Indiana | Opinion 49A02-1707-JC-1634 | February 19, 2018                   Page 17 of 17
