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In re M.M.

Court of Appeals of Indiana

January 25, 2019

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

          Appeal from the Tippecanoe Superior Court The Honorable Faith A. Graham, Judge The Honorable Tricia L. Thompson, Juvenile Magistrate Trial Court Cause Nos. 79D03-1712-JC-301 79D03-1712-JC-302 79D03-1712-JC-303

          Attorney for Appellant Amanda McIlwain Legal Aid Corporation of Tippecanoe County Lafayette, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Robert J. Henke David E. Corey Deputy Attorneys General Indianapolis, Indiana

          MATHIAS, JUDGE.

         [¶1] In an appeal from the Tippecanoe Superior Court, the parties present four issues, which we restate as:

(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.

         [¶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 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 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 ...


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