In re the Matter of M.M., A.M., and B.M. (Minor Children), R.M. (Father), Appellant-Respondent,
Indiana Department of Child Services, Appellee-Petitioner.
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
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
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;
(4) whether the application Indiana Code Section 31-30-1-13
as revised allows a CHINS court to modify custody.
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.
and Procedural History
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.
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.
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
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.
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.
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.
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.
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 ...