                                                                          FILED
                                                                    May 29 2019, 11:20 am

                                                                          CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                            Curtis T. Hill, Jr.
Brownsburg, 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. (Minor                               May 29, 2019
Child),                                                    Court of Appeals Case No.
                                                           19A-JC-114
and
                                                           Appeal from the Marion Superior
J. M. (Father)                                             Court
Appellant-Respondent,                                      The Honorable Marilyn Moores,
                                                           Judge
        v.
                                                           The Honorable Jennifer Hubartt,
                                                           Magistrate
Indiana Department of Child
                                                           Trial Court Cause No.
Services,
                                                           49D09-1808-JC-2146
Appellee-Petitioner,
and
Child Advocates, Inc.,
Appellees-Guardian Ad Litem.



Riley, Judge.



Court of Appeals of Indiana | Opinion 19A-JC-114 | May 29, 2019                              Page 1 of 12
                                 STATEMENT OF THE CASE
[1]   Appellant-Respondent, J.M. (Father), appeals the trial court’s determination

      that his minor child, E.Y. (Child), is a Child in Need of Services (CHINS).


[2]   We reverse.


                                                      ISSUE
[3]   Father presents us with one issue on appeal, which we restate as: Whether the

      trial court erred when it adjudicated Child to be a CHINS.


                       FACTS AND PROCEDURAL HISTORY
[4]   A.Y. (Mother) is the mother of Am.M., born on June 5, 2003, S.M., born on

      October 25, 2008, An.M., born on August 2, 2010, and E.Y., born on August

      23, 2013. (collectively, Children). A.M. is the biological father to the three

      oldest children; while Father is the biological father to E.Y. 1 Mother’s

      relationship with A.M. ended seven years ago and the Children have not been

      around A.M. since.


[5]   The relationship between Mother and A.M. was characterized by domestic

      violence. A.M. would hit Mother and tie her up, telling Am.M. that he was

      going to kill her Mother and “she was going to help him bury” her. (Transcript

      p. 57). After the relationship ended, Mother started seeing a therapist to help




      1
       Mother and A.M. do not participate in this appeal. This court will include facts with respect to Mother,
      A.M., and E.Y.’s three older siblings as far as these are relevant to the appeal.

      Court of Appeals of Indiana | Opinion 19A-JC-114 | May 29, 2019                                 Page 2 of 12
      her cope with the psychological effects of the abuse. Approximately two years

      after A.M. left, Am.M. “started acting out” and Mother took Am.M to a

      therapist.


[6]   Mother entered into a relationship with Father in 2012. At the time of the

      commencement of the CHINS proceedings, Father and Mother were living

      together, parenting the Children. Mother and Father are both gainfully

      employed, have medical insurance for themselves and the Children, and

      maintain an appropriate home for the family. The Children are bonded with

      Father and all four call him “Daddy.” (Tr. p. 48).


[7]   Around March of 2017, Am.M.’s behavior changed. She started to make up

      “stories and act[ed] out with boys and sometimes she g[o]t[] physical with

      [Mother].” (Tr. p. 58). She also made two suicide attempts. Mother and

      Father took Am.M. to see a therapist. When An.M. started school, she began

      exhibiting behavior issues. As a result, Mother and Father took her to Am.M.’s

      therapist. The therapist also offered family therapy to Mother, Father, and the

      Children.


[8]   At the beginning of June 2018, Mother and Am.M.’s therapist made a

      “collaborative decision” to place Am.M. in in-patient care. Consequently, on

      June 14, 2018, Am.M. was admitted to Columbus Behavioral Health Center

      (CBHC); she was discharged on October 12, 2018. During her stay at CBHC,

      Am.M. received therapeutic services by Jana Thompson (Thompson), the lead

      program therapist. During one of the sessions, Am.M. told Thompson that


      Court of Appeals of Indiana | Opinion 19A-JC-114 | May 29, 2019        Page 3 of 12
       “there was a great deal of domestic violence in the home.” (Tr. p. 14). She

       specified that the violence occurred “[m]ostly between her Mother and [Father].

       She also reported incidences of violence towards her[self] and the other

       children.” (Tr. p. 16). Pursuant to her statutory obligation, Thompson notified

       the Indiana Department of Child Services (DCS) about Am.M.’s allegations.


[9]    On August 17, 2018, Thompson contacted Mother, informed her that she had

       alerted DCS, and advised Mother to leave the house and take the Children to a

       battered women’s shelter if she did not want DCS to remove the Children. As a

       result of Thompson’s advice, Mother and the Children spent two nights in a

       shelter.


[10]   At the end of August 2018, Christina Vance (FCM Vance), an assessment

       family case manager with DCS, performed an assessment of the family due to

       Thompson’s report. Mother told FCM Vance that she had been in relationships

       with instances of domestic violence before. However, Mother spoke generally

       and “did not specify that it was with [Father].” (Tr. p. 69). Father expressed

       his willingness “to do anything to reunite his family” and denied any domestic

       violence in the home. (Tr. p. 70). He clarified that he is more of a

       disciplinarian than Mother and admitted to striking S.M., “but he explained it

       in a capacity to where it was more like a playful punch as versus abuse to sort of

       toughen [S.M.] up.” (Tr. p. 70). Besides noticing S.M. stiffening up and having

       a “fearful look on his face” when she mentioned Father to him, FCM Vance

       did not observe anything “concerning or noteworthy” while talking to the

       Children. (Tr. p. 71). An.M. and S.M. also told FCM Vance that Father

       Court of Appeals of Indiana | Opinion 19A-JC-114 | May 29, 2019         Page 4 of 12
       consumes beer every day. At the conclusion of the assessment, DCS

       recommended the Children to remain with Mother in the residence and for

       Father to live elsewhere “because the [C]hildren expressed fear and then [DCS]

       w[as] concerned about domestic issues between [Father] and [Mother].” (Tr. p.

       71).


[11]   On August 27, 2018, DCS filed its CHINS petition based on the allegations of

       domestic violence between Father and Mother, which the Child had

       purportedly witnessed. During the initial hearing, the trial court ordered the

       Child to remain in Mother’s care contingent on Father not residing in the

       residence. The trial court granted Father supervised visitation with the Child

       and placed him on a Track Group Monitor, a blood alcohol monitoring device,

       as well as ordered Father to be assessed for, and participate in, batterer’s

       intervention treatment. Mother was ordered to participate in a domestic

       violence assessment and follow all recommendations. In addition, the trial

       court ordered trauma-focused cognitive behavioral therapy for the Children.


[12]   On October 26, 2018, 2 the trial court conducted a factfinding hearing at which

       evidence was presented that Father and Mother had followed all

       recommendations and Father had not tested positive for alcohol abuse.

       Thompson testified that she had spoken with Mother on multiple occasions and




       2
         An initial factfinding hearing was conducted on October 24, 2018, at which A.M., father to Am.M., S.M.,
       and An.M., entered an admission that his three children should be determined CHINS. The trial court
       accepted the admission and took the adjudication under advisement pending Mother and Father’s
       factfinding.

       Court of Appeals of Indiana | Opinion 19A-JC-114 | May 29, 2019                               Page 5 of 12
       Mother had told Thompson that she “disagreed with [Am.M.’s] account of

       what occurred.” (Tr. p. 21). Mother clarified that Father “had a temper” and

       they were “walking on egg shells as to not upset him,” but she denied any

       domestic violence. (Tr. p. 36). As a result of her conversations with Mother,

       Thompson characterized Mother’s report as “emotional domestic violence.”

       (Tr. p. 36). Thompson also described Mother as genuinely concerned about

       Am.M.’s wellbeing and as a responsible parent who followed DCS’s

       recommendations. Thompson elaborated that she had no concerns about

       Mother’s handling of Am.M.’s medical or mental health.


[13]   Mother and Father both testified that they have a good relationship and that

       there has never been any physical violence between them. They both testified

       that Father has never physically abused the Children. Mother stated that her

       concerns about Father’s temper were caused by the abuse she had suffered at

       the hands of A.M. and her resulting PTSD. Mother explained that because of

       this abuse, she becomes frightened whenever she argues with another person. It

       is something she is “trying to get through in [her] therapy[.]” (Tr. p. 60).

       Mother also testified that after DCS became involved, she tried to continue to

       schedule the Children’s individual therapy sessions with the same therapist they

       had all been seeing during family therapy as the Children were already

       comfortable with her, but DCS cancelled those appointments and scheduled

       them with a different therapist.


[14]   Father has never been arrested for, or convicted of, any act of violence, nor

       were any police reports made accusing Father of domestic violence. Father

       Court of Appeals of Indiana | Opinion 19A-JC-114 | May 29, 2019           Page 6 of 12
       testified that he was following DCS’s recommendations and the court-ordered

       services “willingly and accordingly.” (Tr. p. 43). He confirmed that Am.M.

       and An.M. were in therapeutic therapy before DCS became involved with the

       family.


[15]   Denisha Thomas, the permanency case manager assigned to the family (PCM

       Thomas), made monthly home visits with the Children. She confirmed that

       DCS believes it is necessary for the court to be involved with the family because


               the safety concern would be that there are – that some of the
               [C]hildren were receiving therapy but not all of the [C]hildren are
               receiving therapy to address the domestic violence that was
               alleged and received from the [C]hildren or the statements
               received from the [C]hildren in regarding witnessing the domestic
               violence in the home.


       (Tr. p. 81). PCM Thomas elaborated that besides the Children’s statements,

       DCS did not investigate whether domestic violence between Mother and Father

       had actually occurred. She testified that DCS recommended Mother for weekly

       domestic violence therapy sessions and Father for batterer’s intervention

       services. However, when Father had completed his intake assessment for the

       batterer’s intervention services, the assessor contacted PCM Thomas informing

       her that “there was not enough information [] to make a recommendation” and

       “she wanted to address why the referral was submitted.” (Tr. pp. 80, 88). Only

       after PCM Thomas supplied the assessor with further information and

       “recommended [Father] to re-complete a [Domestic Violence] assessment,” did

       the assessor refer Father to the 26-week batterer’s intervention services. (Tr. p.

       Court of Appeals of Indiana | Opinion 19A-JC-114 | May 29, 2019           Page 7 of 12
       88). PCM Thomas concurred with Thompson’s testimony that Mother is a

       responsible caregiver for the Children and has been very forthcoming with

       everyone. She elaborated that DCS’s only concern is “that if DCS is not

       involved will S.M. remain in therapy” but agreed that he is in therapy now, is

       doing well with it, and “there’s no reason to believe that Mother’s not going to

       continue those services.” (Tr. p. 86). The Children have expressed to her

       that—except for E.Y. who was subject to a visitation order—they are upset that

       they cannot visit with Father and cannot “understand why [Father] is not in the

       home.” (Tr. p. 90).


[16]   At the close of the evidence, the trial court took the matter under advisement.

       On November 26, 2018, the trial court concluded E.Y. to be a CHINS, finding

       that


               The [C]hildren need a safe and stable home environment as well
               as counseling, therapy, or other therapeutic intervention to cope
               with and overcome long term exposure to a volatile home
               environment, domestic violence, and substance abuse they will
               not receive or are unlikely to receive without the coercive
               intervention of the [c]ourt.


       (Appellant’s App. Vol. II, p. 112). On December 19, 2018, the trial court

       entered a dispositional order. During the hearing on the order, evidence was

       presented that Mother had completed the recommendations of the domestic

       violence assessment, and the homebase case manager recommended to close

       out the homebased services. Father had completed half of his batterer’s

       intervention services and was “more than happy to complete those.” (Tr. p.

       Court of Appeals of Indiana | Opinion 19A-JC-114 | May 29, 2019             Page 8 of 12
       108). Evidence was presented that all the Children expressed the desire to

       spend time with Father and the Children “have generally been in a better mood

       since they had visits with Father.” (Tr. p. 115). At the close of the evidence,

       the trial court ordered Father to complete the domestic violence therapy and

       added family therapy, as well as couple’s therapy. The trial court continued

       Father on the alcohol monitoring, but granted Father’s request to return to the

       family home.


[17]   Father now timely appeals. Additional facts will be provided if necessary.


                                DISCUSSION AND DECISION
[18]   Father contends that the trial court abused its discretion in finding Child to be a

       CHINS. In order to adjudicate a child as a CHINS, DCS must prove by a

       preponderance of the evidence that


               (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 . . . 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.




       Court of Appeals of Indiana | Opinion 19A-JC-114 | May 29, 2019             Page 9 of 12
       Ind. Code § 31-34-1-1. In making its determination, the trial court should

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

       it was heard. In re S.D., 2 N.E.3d 1283, 1290 (Ind. 2014). A CHINS

       adjudication cannot be based solely on conditions that have ceased to exist. In

       re S.A., 15 N.E.3d 602, 611 (Ind. Ct. App. 2014), trans. denied. The adjudication

       must be based on the evidence presented in court and not on the allegations in

       the pleadings. Maybaum v. Putnam Co. O.F.C., 723 N.E.2d 951, 954 (Ind. Ct.

       App. 2000). In reviewing a CHINS determination, we do not reweigh evidence

       or assess witness credibility. Matter of N.C., 72 N.E.3d 519, 523 (Ind. Ct. App.

       2017). We consider only the evidence in favor of the juvenile court’s judgment,

       along with any reasonable inferences arising therefrom. Id.


[19]   Father maintains that the trial court erred in adjudicating Child a CHINS

       because there was no evidence E.Y. is in any danger, or that her needs would

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

       Court of Appeals of Indiana | Opinion 19A-JC-114 | May 29, 2019           Page 10 of 12
       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. In other

       words, the focus is on the best interests of the child and whether the child needs

       help that the parent will not be willing or able to provide. Id.


[20]   Prior to DCS becoming involved with the family, Mother and Father had been

       proactively addressing certain problems: Mother was seeing a therapist to deal

       with the consequences of a prior abusive relationship, the family had entered

       family therapy, and Am.M. and An.M. were enrolled in individual therapeutic

       sessions. Both parents were gainfully employed, lived in an appropriate

       residence, and carried insurance which covered the therapy sessions and the

       Children’s medical care. DCS intruded into the family’s life when allegations

       of domestic violence between Father and Mother and between Father and S.M.

       surfaced during Am.M.’s therapy sessions. Based on these allegations and at

       DCS’s recommendation, the trial court ordered the family to enroll in family

       therapy sessions and the Children in individual therapy sessions. Mother was

       required to take domestic violence therapy, and Father was ordered to

       participate in batterer’s intervention treatment and wear a Track Group

       Monitor to supervise his alcohol abuse.


[21]   After the filing of DCS’s CHINS petition and prior to the conclusion of the fact-

       finding hearing, evidence was presented that Mother and Father had followed

       all recommendations and Father had not tested positive for alcohol abuse.

       Court of Appeals of Indiana | Opinion 19A-JC-114 | May 29, 2019          Page 11 of 12
       Father had willfully enrolled in batterer intervention treatment even though

       Mother and Father denied any domestic violence and Father’s initial

       assessment for the services was inconclusive. By the end of the fact-finding

       hearing, DCS agreed that all the Children were enrolled in therapy and there

       was no reason to conclude that Mother would discontinue those services if

       DCS’s involvement with the family ended.


[22]   Mindful to consider the family’s condition not just when the case was filed, but

       also when it is heard, we note that resolution of the family’s issues had started

       prior to DCS’s involvement. Although DCS’s intervention might have enabled

       a faster resolution, such as Father’s participation in batterer’s intervention

       sessions, it is clear that the family had recognized the problems and was

       working towards a positive outcome. Accordingly, the evidence fails to show

       that at the time of the fact finding hearing, Father was unwilling to provide the

       care Child needed without coercive court intervention. When coercion is not

       necessary, the State may not intrude into a family’s life. We therefore reverse

       the trial court’s judgment that Child was a CHINS.


                                              CONCLUSION
[23]   Based on the foregoing, we reverse the trial court’s adjudication of Child as a

       CHINS.


[24]   Reversed.


[25]   Bailey, J. and Pyle, J. concur



       Court of Appeals of Indiana | Opinion 19A-JC-114 | May 29, 2019           Page 12 of 12
