In re the Matter of M.M., A.M., and B.M. (Minor Children), R.M. (Father) v. Indiana Department of Child Services

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:

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 (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.

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[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

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 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

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 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

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 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.

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 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).

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[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.

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 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,

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 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.

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 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.

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[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.

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 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.

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 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

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 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).

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