In the Matter of S.C., A Minor Child, A Child In Need Of Services, M. L., Father v. The Indiana Department of Child Services and Child Advocates, Inc. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 27 2017, 9:19 am

court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Amy Karozos Curtis T. Hill, Jr.
Greenwood, Indiana Attorney General of Indiana
Andrea E. Rahman
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of S.C., A Minor October 27, 2017
Child, A Child In Need Of Court of Appeals Case No.
Services, 49A05-1704-JC-751
M.L., Father, Appellant-Respondent, Appeal from the Marion Superior
v. Court
The Honorable Marilyn A.
The Indiana Department of Child Moores, Judge
Services, Appellee-Petitioner,
The Honorable Jennifer Hubartt,
and Magistrate
Trial Court Cause Nos.
Child Advocates, Inc., Appellee- 49D09-1606-JC-2202
Guardian Ad Litem. 49C01-1606-JP-22362

Brown, Judge.

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[1] M.L. (“Father”) appeals from the trial court’s determination that S.C., born on

January 23, 2015, was a child in need of services (“CHINS”). Father raises one

issue which we revise and restate as whether the trial court erred by finding that

S.C. was a CHINS. We reverse and remand.

Facts and Procedural History

[2] On June 22, 2016, E.C. (“Mother”) filed a Verified Petition to Establish

Paternity of Child and Provide Support, naming either Father or S.S. as the

biological father of S.C. According to the June 28, 2016 Intake Officer’s Report

of Preliminary Inquiry and Investigation, the Department of Child Services

(“DCS”) received a report of neglect two days later. The report listed S.C. as a

victim of alleged perpetrators Mother and S.S. and stated that, while S.C. was

in the home, Mother and S.S. were involved in an argument that resulted in

Mother shooting S.S. in the head and that S.S. was alive and in the Intensive

Care Unit in unstable condition after undergoing surgery for his wounds. The

Intake Report also stated that Mother fled the scene with S.C. after the incident,

that S.C.’s sibling, R.S., was removed from Mother’s care and placed with his

maternal aunt, and that S.C. and R.S. (collectively, the “Children”) “were

taken into custody without a court order.” Appellant’s Appendix Volume 2 at

32 (emphasis removed).

[3] On June 28, 2016, DCS filed a verified petition alleging that the Children were

CHINS, that Mother and S.S. failed to provide the Children with a safe, stable,

and appropriate living environment free from domestic violence, and that S.S.

was the father of S.C. The petition alleging that the Children were CHINS is
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 pursuant to Ind. Code § 31-34-1-1, and the Children’s “physical or mental

condition” was “seriously impaired or seriously endangered as a result of the

inability, refusal, or neglect of the child’s parent, guardian, or custodian to

supply the child with necessary food, clothing, shelter, medical care, education,

or supervision.” Id. at 29.

[4] On August 18, 2016, the court held a fact-finding hearing for Mother on the

CHINS petition, and Mother entered an admission that the Children were

CHINS. When Mother’s counsel shared at the hearing that Mother “has

named [S.S.] as one of the . . . alleged father [sic] on the paternity case as well,”

counsel for DCS asked if “bundling would be appropriate so that [the court]

would be able to determine paternity.” Transcript at 59-60. The court voiced

concern and stated “one alleged father [is] here and there’s another alleged

father downtown without any real communication,” and that its intention was

“to try to reach paternity Court [sic] and get that case before [August 22]. So

that way, we can take a look to see what’s going on.” Id. at 60. At the hearing,

counsel for DCS also questioned “whether it’s still possible . . . to add [Father]

as a potential father in this hearing” so that the DCS family case manager could

serve Father at the paternity case hearing on August 22. Id. On August 26,

2016, the paternity court ordered causes 49C01-1606-JP-22362, concerning

Father’s paternity over S.C., and 49D09-1606-JC-2202, concerning the CHINS

case, “now transferred to Juvenile Division, and are ‘bundled’ for purposes of

pretrial motion and trial” pursuant to Marion Superior Court, Civil Division

Rule 76.2. Appellant’s Appendix Volume 2 at 239.

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[5] On September 9, 2016, DCS filed an amended verified CHINS petition, naming

both S.S. and Father as alleged fathers of S.C. and alleged that S.C. was a

CHINS pursuant to Ind. Code § 31-34-1-1.

[6] On September 22, 2016, the court ordered both S.S. and Father to provide a

DNA sample to establish paternity of S.C. The results, reported on September

29, 2016, were discussed at the October 6, 2016 Pre-Trial Hearing, and the

court noted that Father “could not be ruled out as the alleged father of [S.C.].”

Transcript at 85. When the court asked counsel for DCS about the placement

of S.C., counsel stated, “Obviously, as [Father] is the biological father. If he

had appropriate placement, he would be our first choice, but we are willing to

explore kinship care since the child is currently in foster care.” Id. at 87. The

court also stated that Father has a right to parenting time. Id. at 91. Following

the hearing, the court ordered that S.S. be “dismissed from [the CHINS] action

based on the DNA results indicating that he is not the biological father of

[S.C.].” Appellant’s Appendix Volume 2 at 150.

[7] On October 27, 2016, another Pre-Trial Hearing was held regarding Father.

His counsel shared that Father’s intention was

to ask [the court] to establish paternity of the child and to seek
placement with him. He indicates he’s got an appropriate home.
He’s got custody of another child. His [fiancée] and her son live
there with him. He indicates that she has no criminal or DCS
history. Now that he knows that this is his child, which he did
not know before, he is seeking to get custody.

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 Id. at 94. When the court asked for a response from counsel for DCS, counsel

stated DCS was “beginning the process of looking on whether [Father’s] home

is appropriate. In the case that it is, we would have no objection to placement,

but at this time, we’re not able to provide a position on that.” Id. After noting

waiver of all time requirements, the court stated that it would conduct “one

Final Pre-Trial” on December 1, 2016. Id. When Father’s counsel asked for

“authorization for placement with [Father] at this time,” counsel for DCS

stated DCS had “no objection to authorization upon positive

recommendation.” Id. at 95. Guardian ad Litem Mary Browne (“GAL

Browne”) stated “I’d like to hear the results of DCS’ [sic] check of the home. I

don’t know anything about the other child or the other case. So, pending that, I

would have a problem with authorization,” and the court noted that it was

“going to hold on the authorization. When DCS has the authorization

regarding the environment that [S.C.] would be placed in, if the

recommendation is for placement with [Father], I would certainly entertain that

via formal motion.” Id. at 95-96.

[8] On November 22, 2016, DCS filed an Affidavit that “respectfully requests

placement of [S.C.] with his biological father [Father]”; that at court “on

10/27/16, the court authorized supervised parenting time for [Father] and

[S.C.] [They] have been visiting twice weekly. Visits are reported to be going

well and there are no safety concerns”; the family case manager “checked out

[Father’s] home on 10/31/16. The home was appropriate. There was plenty of

food and the home had working utilities”; and that, due to visits going well

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 between them and S.C. being placed in respite care from 11/24/2016 to

12/8/2016 because his foster family will be traveling to Florida, “DCS is

requesting placement of [S.C.] with [Father].” Appellant’s Appendix Volume 2

at 157. The following day, DCS filed a Request for Change of Placement,

which states in part that “[o]n or about August 11, 2016, the child’s placement

in relative care disrupted and the child was moved to foster care,” that Father

was in favor of this change placement and GAL Browne was in agreement with

the motion, and that DCS had “secured a placement in [temporary in-home

trial visitation] with [Father] that is able to care for the child.” Id. at 184. The

court granted the request and set a Placement Review hearing for December 22,

2016.1

[9] The court held the final Pre-Trial Hearing on December 1, 2016, and decided

on dates for Mediation and Fact Finding, setting them on January 30, 2017 and

February 9, 2017 respectively. At the hearing, counsel for Father stated that

“[Father] needs to establish paternity and I think he wants to pursue custody

outside of these CHINS proceedings. I don’t know if we need to make a

request to the Court and have that bundled and then it’s filed or how that

works,” to which the court responded negatively, stating “there is already a

paternity action here.” Transcript at 100.

1
At the December 22, 2016 CHINS placement review hearing, counsel for DCS stated the Children “are
doing well and both placed with their fathers. There’s no safety concerns at all for either placement,” and
GAL Browne likewise stated “both children are doing well. We have no safety concerns in either home.”
Transcript at 103.

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[10] At the February 9, 2017 Fact Finding hearing, Father’s counsel asked the court

to “enter a Decree of Paternity under the open Paternity case that has been

bundled with this case. . . . [Father] did DNA. He was determined to be the

father of this child. The child has been placed with him since November 23,

2016.” Supplemental Transcript at 2. Father stated there was no agreement as

to custody and the court responded,

I am unable to order an issue regarding custody if there is not an
agreement and if there has not been sufficient time to remedy the
situation. . . . There’s been recent case law that says that I’m
unable to do that. Now I understand the dynamics. It’s not as if
[Mother] is unable to appropriately parent as to this date, but I
am inclined to issue an order on custody without having set that
matter for a custody hearing and provided ample opportunity for
[Mother] to respond.

Id. at 3. Also at the February 9 hearing, Father’s counsel submitted a written

stipulation of facts,2 and added,

2
The stipulated facts state in whole:
1. [S.C.] is a minor child born January 23, 2015.
2. A paternity action was initiated under 49C01-1606-JP-022362 by [Mother], alleging
that [Father] was the father of the child.
3. DNA results confirm that [Father] is the father.
4. The paternity case has been bundled with this child in need of services case.
5. No decree of paternity has been issued at this time.
6. The Department of Child Services filed a petition alleging neglect because Mother
was not providing the child a safe and appropriate home free from domestic violence.
7. The child was placed with his father . . . on November 23, 2016.
8. The child has remained in the care of his father since that time and the Department
of Child Services has no safety concerns for the child in the care of his father.
9. On August 18, 2016, the child’s mother admitted that she could not care for the child
due to being incarcerated and that the child was in need of services.
10. The child’s mother . . . remains incarcerated and pending charges of attempted
murder, a level 1 felony, with a current jury trial date of April 10, 2017.

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 As far as the [CHINS] case, what I know one of your colleagues
has done was take that under advisement until there was a
hearing scheduled on the custody. . . . We would simply submit
the stipulation of facts and leave it to the Courts [sic] discretion
to whether they find this child to be a child in need of services.

Id. at 4. When asked whether there was “any additional testimony that

counsel[s] wish to present,” counsel for Father answered in the negative, stating

“as far as DCS and I, that would be the entirety of the evidence.” Id. at 5.

“Having reviewed the stipulations,” the court continued the adjudication of

S.C. and stated it would “show that he is in need of services based on the

current situation, the current case law and my inability to set the matter for a

Custody hearing pursuant to that case law.” Id. Counsel for Father stated that

DCS was not requesting any services, and counsel for DCS confirmed that it

was not requesting any “at this time.” Id.

[11] On March 13, 2017, the court issued an order regarding the findings of fact

from the February 9, 2017 hearing. The court noted in the order that Mother

“has not had the required reasonable opportunity to participate in reunification

services under the CHINS matter. Therefore, the Court declines to entertain a

change of custody at this time.” Appellant’s Appendix Volume 2 at 211. The

court also found:

11. If, and only if, a paternity decree is issued and custody of the child is awarded to
[Father], the Department of Child Services would have no safety concerns for the
child and would dismiss the Child in Need of Services case as to [S.C.].

Appellant’s Appendix Volume 2 at 206.

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 After review of the stipulated facts, the Court makes the
following findings:
1. [Mother] is currently in the Marion County Jail
awaiting a jury trial on pending charges of attempted
murder. [Mother’s] current trial date is April 10, 2017.
2. [Mother] has already admitted that [S.C.] is a child in
need of services.
3. [Father] has been determined to be the biological father
of [S.C.].
4. [S.C.] has been placed in the care of his father since
November 23, 2016. The DCS has no concerns for the
safety of [S.C.] in the care of his father.
5. [Father] is not the custodial parent of [S.C.] at this
time.
6. The status of [S.C.] is that his custodial parent,
[Mother], is currently in the Marion County Jail and is
unable to parent.
7. While there are no concerns for [S.C.] in [Father’s]
care, [Father] is not the child’s custodial parent and does
not have the legal ability to independently provide for all
of his needs.
8. While this Court may arguably be in the position to
provide [Father] with this legal ability through an order
granting him custody under the paternity action, to do so
at this stage would be in violation of [Mother’s] due
process rights under the paternity matter.
9. Additionally, a change in custody would deprive
[Mother] of the reasonable opportunity to work toward
reunification and would be in contravention of the policy
and purpose of a Child in Need of Services action as stated
in Indiana statute and reiterated in recent case law.
A Child in Need of Services action pertains to the status of the
child, not fault on the part of the parents. [S.C.] is a child
without a parent who is both legally able and physically available
to provide him with care. Therefore, the Court continues the
adjudication that [S.C.] is a child in need of services.

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 Id. at 211-212.

[12] On the same day, the court issued a Dispositional Order, which found in part

that the order “reflects the events of the hearing conducted on February 9, 2017.

DCS has no recommendation for any active services on the part of [Father]. As

such, the Court orders no services for [Father]. As the child is in [Father’s]

care, the Court orders no child support at this time.” Id. at 218.

[13] On July 20, 2017, a CCS entry was recorded in cause 49C01-1606-JP-22362,

which states

Transfer Case
Order Signed: 07/17/2017
Mother is incarcerated. Court orders no child support at
this time. Father will have physical and legal custody of
the child. Mother will have phone contact with the child
at the discretion of [Father] will claim as a dependent for
the purposes of state and local taxes. Father to provide
health insurance. The court orders this matter transferred
to the Marion Circuit Court Paternity Divi[s]ion for all
future matters[.]

Order, July 17, 2017; see also Cause No. 49G03-1606-F1-02500, Order of

Commitment to Community Corrections, April 18, 2017 (detailing Mother’s

incarceration).

Discussion

[14] Although the July 17, 2017 Order granting Father physical and legal custody of

S.C. may make the appeal before us moot, we conclude a decision on the merits

is warranted and necessary. A CHINS adjudication, even one that is short-
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 lived and naturally resolved by the case’s circumstances, may jeopardize future

family stability. See Ind. Code § 31-35-2-4(b)(2)(B)(iii) (providing that two

separate CHINS adjudications may serve as the basis for a petition to terminate

parental rights). If the adjudication is indeed erroneous, it must be corrected to

protect the integrity of the family moving forward. Matter of N.C., 72 N.E.3d

519, 524 (Ind. Ct. App. 2017) (quoting In re K.D., 962 N.E.2d 1249, 1259 (Ind.

2012) (“[A]n abundance of caution should be used when interfering with the

makeup of a family and entering a legal world that could end up in a separate

proceeding with parental rights being terminated.”)).

[15] The issue before us is whether the trial court’s adjudication of S.C. as a CHINS

was clearly erroneous. In reviewing a CHINS determination, we do not

reweigh evidence or assess witness credibility for ourselves. In re S.A., 15

N.E.3d 602, 607 (Ind. Ct. App. 2014), aff’d on reh’g, 27 N.E.3d 287, trans. denied.

We consider only the evidence in favor of the juvenile court’s judgment, along

with any reasonable inferences arising therefrom. Id.

[16] The juvenile court entered findings of fact and conclusions in its March 13

order adjudicating S.C. a CHINS. For issues covered by the juvenile court’s

findings, we first consider whether the evidence supports the factual findings

and then consider whether those findings support the juvenile court’s judgment.

In re S.A., 15 N.E.3d at 607. We will not set aside the findings or judgment

unless they are clearly erroneous. Id. Findings are clearly erroneous when

there are no facts in the record to support them; a judgment is clearly erroneous

if it relies on an incorrect legal standard. Id. We give substantial deference to

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 the court’s findings but not to its conclusions. Id. Any issues not covered by

the findings are reviewed under a general judgment standard and the judgment

may be affirmed if it can be sustained on any basis supported by the evidence.

Id.

[17] Father argues that DCS proved neither that the child’s physical or mental

condition was seriously impaired or endangered nor that the child needed care,

treatment or rehabilitation that he was not receiving. Specifically, Father

argues that DCS failed to identify a danger to the child’s physical or mental

condition or provide an allegation that Father failed to provide S.C. with

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

Father argues next he was doing all he could to ensure he took care of his son

and the law does not favor subjecting families to a CHINS finding where

parents are willing and able to take care of their children. In his reply, Father

asserts that, since both the paternity and CHINS case were before it, the court

could have entered a custody order in the CHINS action, entered the paternity

decree and awarded initial custody, or taken the CHINS under advisement until

the paternity decree and custody order was issued.

[18] DCS argues that the court properly found that S.C. was a CHINS because there

was no custody order which would allow Father to properly care for S.C.

Specifically, DCS argues there was no paternity decree or custody order which

legally allowed Father to act on behalf of the Child regardless of the DNA

testing that indicated Father was S.C.’s biological parent, that a change of

custody for Father could not be accomplished without holding a hearing in

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 which Mother was provided the opportunity to challenge Father’s motion, and

that Father could not make decisions on behalf of S.C. without a change of

custody determination.

[19] 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
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.

[20] Ind. Code § 31-34-1-1. A CHINS designation focuses on the condition of the

child rather than on an act or omission by the parent. In re N.E., 919 N.E.2d

102, 106 (Ind. 2010) (“Said differently, the purpose of a CHINS adjudication is

to protect children, not punish parents.”); see also J.C. v. Indiana Dept. of Child

Services, 3 N.E.3d 980, 982 (Ind. Ct. App. 2013). DCS must prove three

elements for a juvenile court to adjudicate a child as a CHINS; it must first

prove the child is under the age of eighteen, it must prove one of eleven

different statutory circumstances exist that would make the child a CHINS, and

finally, in all cases, DCS must prove the child needs care, treatment, or

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 rehabilitation that he or she is not receiving and that he or she is unlikely to be

provided or accepted without the coercive intervention of the court. In re K.D.,

962 N.E.2d at 1253. The final element reserves the coercive intervention of the

court into the family and “guards against unwarranted State interference in

family life, reserving that intrusion for families ‘where parents lack the ability to

provide for their children,’ not merely where they ‘encounter difficulty in

meeting a child’s needs.’” In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014) (quoting

Lake Cnty. Div. of Family & Children Servs. v. Charlton, 631 N.E.2d 526, 528 (Ind.

Ct. App. 1994)). A CHINS adjudication “may not be based solely on

conditions that no longer exist. The trial court should also consider the parents’

situation at the time the case is heard.” K.B. v. Indiana Dep't of Child Servs., 24

N.E.3d 997, 1001 (Ind. Ct. App. 2015) (citing In re R.S., 987 N.E.2d 155, 159

(Ind. Ct. App. 2013)).

[21] DCS did not prove by a preponderance of the evidence that the “care,

treatment, or rehabilitation” that S.C. was and had been receiving from Father

during the three months prior to the February 9th hearing necessitated the

coercive intervention of the trial court. See I.C. § 31-34-1-1. The written

stipulation of facts submitted to the court involved eleven factual statements,

one of which states that Mother initiated a paternity action alleging Father is

the biological father of S.C. and another of which states that DNA results

confirm this allegation. More importantly, besides the procedural recitations

found in the fourth, sixth, and ninth statements, the only reference in the

written stipulation of facts to the CHINS case was DCS’s concession that, going

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 forward, it “would have no safety concerns for the child and would dismiss the

[CHINS] case” as to S.C. pending paternity and custody decrees being

awarded. Appellant’s Appendix Volume 2 at 206 (emphasis added). And, the

only non-procedural references to S.C.’s current or future situation, contained

in the seventh and eighth statements, stipulate that S.C. was placed with Father

since November 23, 2016, and DCS has had no safety concerns for S.C. during

this period.

[22] To the extent that the evidence may have at one point previously supported a

conclusion that the coercive intervention of the court was necessary in the

CHINS proceedings, the factual findings in the March 13, 2017 order do not

support such a conclusion nor is one substantiated by S.C.’s situation on

February 9th at the time of the fact-finding hearing. We note that the trial court

found in its March 13 order that Father “has been determined to be the

biological father of [S.C.].” Id. at 211. We find instructive our decision in

Matter of N.C., 72 N.E.3d at 524-525. In that case, we reversed a dispositional

order after observing that the

only reference to Father in the juvenile court’s findings following
the fact-finding hearing was to reiterate that Father is the
noncustodial father of N.C., despite testimony at the fact-finding
hearing establishing Father had temporary custody of N.C. under
a court order, DCS had visited the placement and found it
appropriate, and there were no allegations of neglect against
Father.

Id.

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[23] Based upon the record and the trial court’s findings that Father was the

biological parent of S.C. and DCS had no concerns for the safety of S.C. in

Father’s care for the previous four-month period, we conclude that the trial

court’s order finding that S.C. was a CHINS was clearly erroneous. See id. at

525 n.5; see also In re S.A., 15 N.E.3d at 610-612 (observing DCS’s argument

that coercive court intervention was necessary based on father’s “lack of prior

involvement and parenting skills” and that the child “still doesn’t know [father]

that well,” and rejecting that argument in part because this court presumed a

hearing would be held on the father’s custody petition in due course if it had not

already).

Conclusion

[24] For the foregoing reasons, we reverse the trial court’s determination that S.C.

was a CHINS.

[25] Reversed and remanded.

[26] Najam, J., and Kirsch, J., concur.

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