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In re N.C.

Court of Appeals of Indiana

March 21, 2017

In the Matter of: N.C. (Minor Child), Child in Need of Services
The Indiana Department of Child Services, Appellee-Petitioner. and J.M. (Father), Appellant-Respondent,

         Appeal from the Monroe Circuit Court The Honorable Stephen R. Galvin, Judge Trial Court Cause No. 53C07-1605-JC-308

          ATTORNEY FOR APPELLANT Noah T. Williams Monroe Co. Public Defender Bloomington, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Robert J. Henke Abigail R. Recker Deputy Attorneys General Indianapolis, Indiana

          Robb, Judge.

         Case Summary and Issue

         [¶1] J.M. ("Father") appeals the juvenile court's finding that his son, N.C., is a child in need of services ("CHINS") and the juvenile court's corresponding dispositional order giving wardship of N.C. to the Indiana Department of Child Services ("DCS") and ordering Father to comply with the terms of a Parent Participation Plan. Father raises two issues for our review, of which we find the following dispositive: whether the juvenile court erred in finding N.C. to be a CHINS. Concluding DCS did not prove by a preponderance of the evidence that the coercive intervention of the court was necessary to ensure N.C. 's care and therefore the juvenile court clearly erred in adjudicating N.C. a CHINS, we reverse.

         Facts and Procedural History

         [¶2] Father and M.C. ("Mother") are the parents of N.C., who was six years old when these proceedings began. Father and Mother do not live together. In addition, Mother has three daughters by three other men: H.M., her oldest, who was not involved in these proceedings; B.C., who was fourteen at the time these proceedings began; and K.T., who was eleven. B.C., K.T., and N.C. were all in Mother's primary custody.

         [¶3] On April 27 and 28, 2016, DCS received reports indicating Mother was using methamphetamine while caring for her children. Stephanie Clephane, a Monroe County DCS family case manager, spoke with each of the children at school on April 28 and eventually connected with Mother by phone. Mother admitted using methamphetamine in the recent past but refused to meet with Clephane without a court order. Because of Mother's admission, DCS arranged for the children to begin staying with Mother's sister as of April 28. In the ensuing days, Mother had multiple contacts with law enforcement after reporting her house was bugged, making suicidal threats, and complaining her sister would not return the children to her.

         [¶4] On May 5, 2016, the juvenile court authorized the filing of a CHINS petition for all three children. The petition, filed the same day, alleged the children were CHINS because Mother admitted to recently using methamphetamine and refused to submit to requests for a drug screen; Mother was suicidal and admitted to a hospital for treatment; one of the children reported there was domestic violence in the home between Mother and her boyfriend; one of the children reported she believes Mother is using drugs because of her sudden weight loss and odd behavior; Mother refused to cooperate with DCS; and Mother has a history with DCS. The petition also named the children's fathers and noted they are each noncustodial parents.

         [¶5] Father and Mother had a prior case in Monroe Circuit Court concerning support and custody issues regarding N.C. [1] On April 29, 2016, Father filed a petition to modify custody with the Circuit Court, alleging N.C. 's living situation was harmful to him and DCS had indicated it was going to take action. The Circuit Court held a hearing on June 30, 2016, at which Father, Mother, and DCS appeared. Mother did not object to Father being awarded temporary custody of N.C. but objected to a final custody determination before the CHINS fact-finding hearing was completed. The Circuit Court noted N.C. was the subject of a CHINS proceeding and that the juvenile court and DCS had both approved placement of N.C. with Father. The Circuit Court found the evidence supported granting Father temporary custody, but "because the parents are not in agreement, and there is a conflict in the testimony regarding the consistency of Father's parenting time . . . and Mother's alleged drug use or negligent care of [ N.C. ], " the court did not make a permanent change of custody at that time. Appellant's Appendix, Volume II at 90. Instead, "either parent may file a copy of the juvenile court CHINS order . . . and request a hearing if the CHINS case is dismissed [at the fact-finding hearing] for failure to prove or parties are discharged at a later date because the dispositional goals are achieved[, ]" and the court would then hold a hearing on either parent's request. Id. at 92.

         [¶6] At the CHINS fact-finding hearing on September 1, 2016, the only testimony related to Father was that N.C. had been placed with him pursuant to the Circuit Court order for approximately two months, that DCS had visited Father's home the night before the fact-finding hearing and the visit went very well and everything looked appropriate, and that there were no allegations against Father. The juvenile court found that all three children were CHINS, concluding:

Given the ongoing domestic violence and substance abuse in the family home, the negative impact of the domestic violence on the children, [Mother's] history of neglect of her children, and [Mother's] unwillingness to participate in services, the coercive intervention of the court is clearly necessary to protect the health and safety of the children.

Id. at 34. The only reference to Father in the juvenile court's findings is that Father is the noncustodial father of N.C.

         [¶7] The juvenile court held a dispositional hearing on September 27, 2016. Lindsey McDonald, the case manager, testified as follows when questioned by Father's attorney:

Q: How long has [ N.C. ] been placed [with Father]?
A: I don't remember the exact date but it's been a couple of months - a few months now.
Q: Has there been a single issue with [Father] and [ N.C. ] or [ N.C. 's] safety?
A: No.
Q: Has [Father] refused to do a single thin[g] you've ...

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