                                                                                 FILED
                                                                             Jan 25 2019, 8:13 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      Amanda McIlwain                                             Curtis T. Hill, Jr.
      Legal Aid Corporation of                                    Attorney General of Indiana
      Tippecanoe County                                           Robert J. Henke
      Lafayette, Indiana                                          David E. Corey
                                                                  Deputy Attorneys General
                                                                  Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      In re the Matter of M.M., A.M.,                             January 25, 2019
      and B.M. (Minor Children),                                  Court of Appeals Case No.
                                                                  18A-JC-1234
      R.M. (Father),
                                                                  Appeal from the Tippecanoe
      Appellant-Respondent,                                       Superior Court
              v.                                                  The Honorable Faith A. Graham,
                                                                  Judge
      Indiana Department of Child                                 The Honorable Tricia L.
      Services,                                                   Thompson, Juvenile Magistrate

      Appellee-Petitioner.                                        Trial Court Cause Nos.
                                                                  79D03-1712-JC-301
                                                                  79D03-1712-JC-302
                                                                  79D03-1712-JC-303



      Mathias, Judge.


[1]   In an appeal from the Tippecanoe Superior Court, the parties present four

      issues, which we restate as:

      Court of Appeals of Indiana | Opinion 18A-JC-1234 | January 25, 2019                           Page 1 of 15
              (1) whether the Indiana Department of Child Services (“DCS”)
              failed to prove that the coercive intervention of the court was
              necessary to provide the children with services;


              (2) whether the record supports the services the court ordered
              Father to complete;


              (3) whether the dismissal of the children in need of services
              (“CHINS”) proceedings renders this appeal moot; and,


              (4) whether the application Indiana Code Section 31-30-1-13 as
              revised allows a CHINS court to modify custody.


[2]   We reverse the CHINS adjudication. We also determine that the CHINS court

      could have properly considered the custody matter pursuant to the revisions to

      Ind. Code section 31-30-1-13. We further conclude that Father’s challenge to

      the services ordered in the parental participation order is moot.


                                   Facts and Procedural History

[3]   M.M. was born on November 24, 2012. A.M. was born on July 1, 2014, and

      B.M. was born on December 30, 2015. A.K. (“Mother”) and Father were not

      married at the time of the children’s births; however, Father was present for all

      three births and is listed on each child’s birth certificate. Father and Mother live

      approximately ten minutes’ drive away from each other in Tippecanoe County.

      Prior to removal of the children from Mother’s home, Father had trouble

      communicating with Mother and no regular parenting time schedule existed.

      However, Father regularly cared for the children on holidays and weekends.



      Court of Appeals of Indiana | Opinion 18A-JC-1234 | January 25, 2019       Page 2 of 15
[4]   Due to allegations of substance abuse in the home, Mother and her boyfriend

      entered into an Informal Adjustment (“IA”) with DCS in June of 2017. The IA

      remained open until April 16, 2018, the date of the dispositional hearing in the

      CHINS matter. The assigned Family Case Manager (“FCM Rhodes”)

      attempted to contact to Father during the IA. He initially did not respond but

      after some delay did make contact. Father later testified that he was at work

      during the hours that DCS was attempting to contact him. Father’s home was

      not assessed during the IA, and he was not a party to the IA. Father also

      testified that he was not paying his child support because he believed any

      money given to Mother would be spent on drugs.

[5]   During an unannounced visit in the first week of November 2017, FCM

      Rhodes discovered child A.M. alone in Mother’s home. Around Thanksgiving

      of 2017, Father informed FCM Rhodes that he had also found the children

      alone at Mother’s home. On December 1, 2017, FCM Rhodes met with Father

      at his home. During this meeting, Father expressed further concerns regarding

      the well-being of the children while in Mother’s care.


[6]   On December 3, 2017, Father called the police to request a well-being check on

      his children. When police arrived at Mother’s home, the door had been broken

      down, the home was in disarray, and the children were in the home, all of them

      under the age of five, without an adult present. When Mother returned to her

      residence, she admitted to leaving the children home alone for fifteen to twenty

      minutes while she went to the store. Mother’s boyfriend, who lived with

      Mother and the children, had broken down the door because he could not get

      Court of Appeals of Indiana | Opinion 18A-JC-1234 | January 25, 2019    Page 3 of 15
      into the residence. Mother was arrested for neglect of a dependent. DCS filed a

      CHINS petition and removed the children, placing them with Father.

[7]   The fact-finding hearing began on January 16, 2018, and, because evidence was

      not concluded on January 16, was continued to February 13, 2018. At the

      initiation of the fact-finding hearing, Father’s attorney stated that, although

      they had not yet been filed, she had already drafted the documents “to restrict

      the Mother’s access outside of a DCS case.” Tr. p. 5. Father’s counsel asked for

      a continuance of the fact-finding so that Mother could be served with the

      paperwork she had drafted and that the court could hear that matter at a later

      date. DCS did not object to the proposed continuance, but the court denied the

      request for a continuance stating, “[t]his is a case that was an Informal

      Adjustment, so this is not a case that has just begun. [Counsel for Father] you

      can present your evidence as to that and the Court may consider that the

      appropriate resolution, but we are going to go forward with the Fact Finding at

      this time.” Id.


[8]   At the time of fact finding, Father was employed and had arranged for the

      children to be at a licensed child care during the day. He obtained food stamps,

      health insurance for himself and the children, and was on the waiting list for

      vouchers to assist with day care costs. He was able to arrange all of this without

      the assistance of DCS. Father cared for the children without incident

      throughout the remainder of the case. He testified that he was concerned that

      Mother was still using drugs and had missed supervised visitation with the

      children. He felt like he should have full care of the children and that he could

      Court of Appeals of Indiana | Opinion 18A-JC-1234 | January 25, 2019        Page 4 of 15
       care for them appropriately long term. Counsel for DCS raised concern that

       Mother still had legal custody of the children, and, absent the CHINS

       proceedings, the children legally could be returned to Mother’s care.


[9]    FCM Rhodes also testified that she had no issue with Children being in

       Father’s care. She did testify that, based on the IA, as well as the incident

       leading to the removal of the children from Mother’s home, she believed the

       coercive intervention of the court was necessary. Throughout the IA, a home-

       based caseworker was assisting with obtaining food from food pantries and

       helping Mother regain employment. Mother had been referred for a substance

       abuse assessment in June or July of 2017 through the IA and then again

       through the CHINS proceedings and had yet to complete it. Out of

       approximately twenty scheduled visits, she had completed three or four.


[10]   The FCM recommended counseling for M.M. and First Steps programming for

       B.M. She also recommended a GLASS Evaluation, or a “a basic evaluation just

       to kind of go over developmental speech, different things like that, that can get

       them ready for Pre-K and Kindergarten.” Tr. p. 103. She also testified that

       Father would be able to have the children complete such an evaluation without

       DCS involvement. Id. at 96.


[11]   At the close of evidence on February 13, 2018, the court took the matter under

       advisement. The trial court signed its CHINS adjudication order on March 19,

       2018, but the chronological case summary shows it was entered on March 23,

       2018. At the dispositional hearing, held on April 16, 2018, the only service that


       Court of Appeals of Indiana | Opinion 18A-JC-1234 | January 25, 2019      Page 5 of 15
       DCS felt “might be more appropriate” for Father was parenting education. Id.

       at 117–118. DCS no longer recommended case management for Father. DCS

       recommended case management, supervised visits, a parenting assessment, and

       drug screens for Mother. The court emphasized at the dispositional hearing that

       it wanted “to make sure that we get [Father] settled and on a good path” and

       entered a set of “standard orders” in its parental participation decree. Id. at 125,

       128. By the time of the CHINS disposition, approximately ten months after

       services were offered at the initiation of the IA, and approximately five months

       after the same services were offered at the beginning of the CHINS proceeding,

       Mother had completed an initial clinical assessment. However, Mother had not

       responded to the therapist’s attempts schedule follow-up appointments.

[12]   Father obtained custody of the children in a separate proceeding on August 6,

       2018. DCS then moved to dismiss wardship, which the court granted. Father

       then filed the instant appeal. Mother does not participate in this appeal.1


                                        Discussion and Decision
                                             I. CHINS Adjudication

[13]   In order to adjudicate a child 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


       1
        DCS filed a motion to remand this matter prior to filing its responsive brief. We have addressed the
       substance of the issues on appeal, and this motion to remand is denied.

       Court of Appeals of Indiana | Opinion 18A-JC-1234 | January 25, 2019                             Page 6 of 15
                    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.


       Ind. Code § 31-34-1-1; In re S.A., 15 N.E.3d 602, 607 (Ind. Ct. App. 2014), aff’d

       on reh’g, 27 N.E.3d 287 (Ind. Ct. App. 2015), trans. denied. A CHINS

       adjudication focuses on the condition of a child, and whether that child needs

       services. In re R.S., 987 N.E.2d 155, 159 (Ind. Ct. App. 2013). A CHINS

       adjudication may not be based solely on conditions that no longer exist. Id. The

       trial court should also consider the parents’ situation at the time the case is

       heard by the court. Id. DCS has the burden of proving by a preponderance of

       the evidence that a child is a CHINS. Ind. Code § 31-34-12-3.

[14]   In reviewing a CHINS determination, we do not reweigh evidence or assess

       witness credibility for ourselves. In re S.A., 15 N.E. 3d at 607. We consider only

       the evidence in favor of the juvenile court’s judgment, along with any

       reasonable inferences arising therefrom. Id. We reverse only upon a showing

       that the decision of the trial court was clearly erroneous. In re K.D., 962 N.E.2d

       1249, 1253 (Ind. 2012).




       Court of Appeals of Indiana | Opinion 18A-JC-1234 | January 25, 2019        Page 7 of 15
[15]   Here, Father argues that DCS failed to prove by a preponderance of the

       evidence that the coercive intervention of the court was needed in order to

       provide the children with necessary services at the time of fact finding. DCS

       agrees that the coercive intervention of the court was not needed to provide

       services for the children while the children were in Father’s care.


[16]   However, DCS points out on appeal that it continued to pursue a CHINS

       adjudication due to its statutorily defined duties and obligations to protect

       children “at imminent risk” of being displaced or endangered. See e.g. I.C. §§ 31-

       10-2-1 (State’s child welfare policy and purpose), 31-9-2-17.8 (child services

       defined), 31-26-5-1 (child at imminent risk of placement), 31-33-8-1

       (investigation/assessment of suspected child abuse or neglect), 31-34-1

       (circumstances under which a child is a CHINS), et. al. In short, the agency’s

       concern that led it to continue to pursue a CHINS adjudication in spite of its

       belief Father was a ready, willing, and able parent, was that he did not have

       actual legal custody, which meant the children were at risk for going back to an

       unfit mother if the CHINS cases were to be closed. It is DCS’s position that the

       children were CHINS solely because of this legal risk, however remote in these

       circumstances, and that it is “compelled to pursue a CHINS adjudication unless

       and until the case can be resolved by other means, including legal custody to

       the non-offending parent.” Appellee’s Br. p. 28.

[17]   At the time of CHINS adjudication, the children had been placed in Father’s

       care for almost four months without incident. He had appropriate living spaces

       and he had the children enrolled in a licensed day care while he went to work.

       Court of Appeals of Indiana | Opinion 18A-JC-1234 | January 25, 2019      Page 8 of 15
       Father secured SNAP benefits, day care vouchers, and health insurance for

       himself and the children without the assistance of DCS services. He testified

       that he felt he was able to care for the children and intended to keep the

       children long term.


[18]   In concluding that the children were CHINS, the trial court relied almost

       exclusively on the events that occurred during the IA and the events leading to

       removal of the children from Mother’s home. In its order, the only reference to

       events or circumstances occurring after the removal refer to Mother’s lack of

       participation in services throughout both the IA and the CHINS.


[19]   The court’s order adjudicating the children CHINS focuses on the facts and

       circumstances leading up to and surrounding the removal of the children from

       Mother’s care, and not the situation at the time the case was heard. While DCS

       was concerned about the legal custody arrangement at issue, the legal

       possibility of the children returning to Mother’s care does not alone mean that

       the children required services. The needs of the children were met, and there

       was no evidence showing that the coercive intervention of the court was needed

       to provide the children with services at the time of the fact-finding.

       Accordingly, we reverse the adjudication of the children as CHINS.

                                                     II. Custody

[20]   DCS argues that application of Indiana Code section 31-30-1-13, as amended

       by the General Assembly in 2017, resolves the tension between its belief that the

       children did not need services while in the care of the noncustodial parent, but,


       Court of Appeals of Indiana | Opinion 18A-JC-1234 | January 25, 2019     Page 9 of 15
       absent the wardship, the custodial parent would be entitled to primary physical

       and legal custody and the children would be at risk of returning to unsafe

       conditions with their custodial parent. Indiana Code section 31-14-13-1

       provides that “[a] biological mother of a child born out of wedlock has sole

       legal custody of the child, except as provided in Ind. Code § 16-37-2-2.1” absent

       additional legal action in accordance with Indiana Code sections 31-14-13-1, 2,

       and 2.3.


[21]   Our court addressed this argument with respect to the previous version of Ind.

       Code section 31-14-13-1 in In re J.B., 61 N.E.3d 308 (Ind. Ct. App 2016). In

       J.B., we reversed a custody modification where the CHINS court modified

       custody to the unwed noncustodial parent and closed the CHINS case after

       only thirty days, without entering a dispositional decree and without giving

       mother a meaningful opportunity to participate in services. Id. At the time we

       decided In re J.B., Indiana Code section 31-30-1-13(c) provided:


                        (c)      If a juvenile court:


                                 (1) establishes or modifies paternity of a child; and


                                 (2) terminates a child in need of services
                                     proceeding or a juvenile delinquency
                                     proceeding regarding the child;


                        the court having concurrent original jurisdiction under
                        subsection (a) shall assume or reassume primary
                        jurisdiction of the case to address all other issues.


       Court of Appeals of Indiana | Opinion 18A-JC-1234 | January 25, 2019         Page 10 of 15
       I.C. § 31-30-1-13(c) (2016); see also In re J.B., 61 N.E.3d at 310. In the previous

       matter, DCS argued that when the legislature used the word “paternity” in

       subsection (c)(1), the legislature intended to include custody modifications as

       well. A panel of our court disagreed, in large part due to the legislature’s

       omission of the word “custody,” where it had included the word in other

       related statues. In re J.B., 61 N.E.3d at 312.


[22]   Our court also noted potential problems with competing jurisdiction if the

       statute were to be read to include custody modifications in the course of

       CHINS proceedings, stating, “if a CHINS court in one county does not approve

       a custody modification from a paternity court in another county and then

       modifies custody to a different parent, once the CHINS court terminates the

       CHINS proceeding, both orders would be in effect (with different parents

       receiving custody).” Id.


[23]   In addition to jurisdictional issues, we also addressed policy concerns. We

       noted the policy of the state to “strengthen family life by assisting parents to

       fulfill their parental obligations” and “to provide a continuum of services

       developed in a cooperative effort by local governments and the state.” Id. (citing

       Ind. Code § 31-10-2-1; In re N.E., 919 N.E.2d 102, 108 (Ind. 2010)). We re-

       emphasized that “[i]t is clear that the policy and purpose of the CHINS

       statutory scheme is not to remove children from their parents without giving the

       parents a reasonable opportunity to participate.” Id. at 313.




       Court of Appeals of Indiana | Opinion 18A-JC-1234 | January 25, 2019      Page 11 of 15
[24]   After In re J.B., the legislature amended Ind. Code § 31-30-1-13. It presently

       reads,

                (a) Subject to subsection (b), a court having jurisdiction under IC
                    31-14 over establishment or modification of paternity, child
                    custody, parenting time, or child support in a paternity
                    proceeding has concurrent original jurisdiction with another
                    juvenile court for the purpose of establishing or modifying
                    paternity, custody, parenting time, or child support of a child
                    who is under the jurisdiction of the other juvenile court
                    because:


                    (1) the child is the subject of a child in need of services
                        proceeding; or


                    (2) the child is the subject of a juvenile delinquency
                        proceeding that does not involve an act described under IC
                        31-37-1-2.


                (c) If, under this section, a juvenile court:


                    (1) establishes or modifies paternity, custody, child support, or
                        parenting time of a child; and


                    (2) terminates a child in need of services proceeding or a
                        juvenile delinquency proceeding regarding the child;


                the order establishing or modifying paternity, custody, child
                support, or parenting time survives the termination of the child in
                need of services proceeding or the juvenile delinquency
                proceeding until the court having concurrent original jurisdiction
                under subsection (a) assumes or reassumes primary jurisdiction
                of the case to address all other issues.


       Court of Appeals of Indiana | Opinion 18A-JC-1234 | January 25, 2019             Page 12 of 15
       I.C. § 31-30-1-13 (emphasis added). This modification to the statute in the wake

       of our decision in J.B. evidences a clear intent by the legislature for a CHINS

       court to be able to establish or modify custody, child support, or parenting time

       of a child over whom it exercises jurisdiction.

[25]   Here, Father filed (in a separate proceeding) a Verified Petition to Affirm

       Paternity in which he requested full custody of the children on the day of the

       first fact-finding hearing. Mother was not present and had not been served with

       this petition. DCS, through counsel, acknowledged that the children did not

       need services when they were in the care of Father and that it would not

       consider the matter a CHINS but for Father’s lack of legal custody.

       Accordingly, DCS did not object to a continuance of the fact-finding hearing to

       another date.2


[26]   Mother had a meaningful opportunity to participate in the services that DCS

       made available to her throughout the IA. Services were again offered to Mother

       once the children had been removed from her home, and she again failed to

       participate. The record in this matter is not entirely clear as to reasons for the




       2
         Indiana Code section 31-34-11-1(b) provides that a fact-finding hearing shall be completed “not more than
       sixty (60) days” after a petition alleging a child is a child in need of services is filed. The fact finding can be
       continued for an additional sixty (60) days if all parties consent. If a fact-finding hearing is not held, the case
       shall be dismissed without prejudice. Id. at § 1(d). Although CHINS courts are restricted in the ability to
       continue fact-finding hearings, here, DCS and Mother consented to Father’s proposed continuance while the
       Court Appointed Special Advocate took no position. It was within the trial court’s authority, as explained in
       this opinion, to continue the fact-finding hearing so that it could consider Father’s request for custody
       modification along with the fact finding.

       Court of Appeals of Indiana | Opinion 18A-JC-1234 | January 25, 2019                                 Page 13 of 15
       delay in hearing the custody matter as it was a part of a separate proceeding.

       However, provided Mother had notice and the opportunity to be heard

       regarding Father’s request for change of custody, it was within the CHINS

       court’s authority in accordance with the newly amended Ind. Code section 31-

       30-1-13 to consider the request for change of custody and enter an order

       modifying custody pursuant to the analysis required by Ind. Code section 31-

       14-13-2, as well as corresponding statutes and existing precedent, that would

       survive the termination of the CHINS proceeding.

                                         III. Parental Participation

[27]   Father additionally argues that the record does not support the services the trial

       court ordered Father to complete. We have cautioned on more than one

       occasion that “[a]lthough the juvenile court has broad discretion in determining

       what programs and services in which a parent is required to participate, the

       requirements must relate to some behavior or circumstance that was revealed

       by the evidence.” A.C. v. Marion Cty. Dep’t of Child Svcs., 905 N.E.2d 456, 464

       (Ind. Ct. App. 2009); In re V.H., 967 N.E.2d 1066, 1073–74 (Ind. Ct. App.

       2012). While many of the “standard orders” issued by the trial court in this case

       do not appear to be supported by the evidence, the CHINS petition has been

       dismissed by DCS, and the parental participation order is no longer in effect. As

       such, this particular issue is moot, see In re Lawrence, 579 N.E.2d 32, 37 (Ind.

       1991) (“The long-standing rule in Indiana courts has been that a case is deemed




       Court of Appeals of Indiana | Opinion 18A-JC-1234 | January 25, 2019     Page 14 of 15
       moot when no effective relief can be rendered to the parties before the court”),3

       and there is no relief that can be granted to Father on appeal.


                                                    Conclusion

[28]   Here, the trial court focused on the facts and circumstances at the time the

       CHINS petition was filed, not at the time of the disposition. As such, we

       reverse. Additionally, here, where Mother had a meaningful opportunity to

       participate in services and failed to do so, the purposes of the CHINS

       proceedings were met, and the trial court would have been within its authority

       to consider a custody modification. Lastly, Father’s challenge to the trial court’s

       orders concerning his participation is moot.


       Vaidik, C.J., and Crone, J., concur.




       3
         As a reversal of a CHINS adjudication can provide real relief to Father, the issue regarding adjudication of
       the CHINS is not moot on appeal. In re S.D., 2 N.E.3d 1283, 1290 (Ind. 2014).

       Court of Appeals of Indiana | Opinion 18A-JC-1234 | January 25, 2019                             Page 15 of 15
