In re the Matter of: N.P., L.P., B.P., and C.P., (Minor Children), A.P. (Mother) and A.P. (Father) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Aug 18 2017, 5:50 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE A.P. (MOTHER) Curtis T. Hill, Jr. Danielle L. Gregory Attorney General of Indiana Indianapolis, Indiana David E. Corey Deputy Attorney General ATTORNEY FOR APPELLANT Indianapolis, Indiana A.P. (FATHER) Steven J. Halbert Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Matter of: N.P., L.P., August 18, 2017 B.P., and C.P, (Minor Children), Court of Appeals Case No. 49A04-1703-JC-446 A.P. (Mother) and A.P. (Father), Appeal from the Marion Superior Appellants-Respondents, Court v. The Honorable Marilyn J. Moores, Judge The Indiana Department of Trial Court Cause No. Child Services, 49D09-1608-JC-3164 49D09-1608-JC-3165 Appellee-Petitioner 49D09-1608-JC-3166 49D09-1608-JC-3167

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Vaidik, Chief Judge.

Case Summary [1] As.P. (“Mother”) and Au.P. (“Father”) have four children, who were removed

from the family home after the Department of Child Services (DCS) received a

report of neglect. DCS alleged that the children were in need of services

(CHINS) because of the conditions at the home. Mother and Father contested

the allegations, and a fact-finding hearing was held. During the hearing, DCS

introduced evidence, over Mother’s and Father’s objections, regarding the

parents’ mental health, which was not part of the petition. Mother and Father

presented evidence that they had remedied the housing situation. Nevertheless,

the trial court adjudicated the children CHINS. Mother and Father appeal,

arguing that they were not placed on notice to defend mental-health allegations

and that even if the mental-health evidence was properly admitted, the evidence

is insufficient to support the adjudications. We agree and reverse.

Facts and Procedural History [2] Mother and Father have four children: N.P., born in January 2009; L.P., born

in June 2010; B.P., born in January 2012; and C.P., born in July 2013. During

August 2016, Mother and Father struggled to pay their bills and sought out

financial help from community organizations, but they were unsuccessful in

getting the aid the family needed. On August 23, Marion County DCS received

a report of child neglect, alleging that Mother and Father did not have running

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water in their home. Korrie Frick, an assessment manager with DCS, went to

the home to investigate the report and found that the house did not have

running water, had a strong odor of urine and feces, and had only one twin bed

for the four children. Father told Frick that he and Mother had been involved

with Indiana DCS in the past, as well as Child Protective Services (CPS) in

New Mexico, but all of the claims were unsubstantiated. Frick informed Father

that she would be back the following day to interview the children. Frick did

not seek to have the children removed from the home at that time because there

were not “any immediate safety concerns facing the children.” Tr. p. 14. [3] At some point after Frick’s initial visit, Mother transported the children to a

relative’s home in Pennsylvania, so when Frick returned to the house the

following day, the children were not there. Having learned that the children

were now residing out of state, DCS petitioned the trial court to give DCS

permission to take the children into custody and for the court to declare the

children CHINS. DCS alleged, under Indiana Code section 31-34-1-1, that the

children were CHINS because:

The [children’s] physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the [children’s] parent, guardian, or custodian to supply the [children] with necessary food, clothing, shelter, medical care, education, or supervision; and the [children] need[] care, treatment, or rehabilitation that the [children are] not receiving; and is unlikely to be provided or accepted without the coercive intervention of the Court.

*****

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This petition is based upon, and is supported by, the following alleged material facts:

a. [Mother] and [Father], parents of [N.P.], [L.P.], [B.P.], and [C.P.], have failed to provide the children with a safe, stable, and appropriate living environment.

b. The home was observed to be unsanitary and cluttered with a strong odor of animal feces.

c. There was also no working water in the home, and all four children share one twin size mattress.

d. [Mother] reportedly left with the children, and [DCS] is unable to ensure their safety in her care.

e. The children and family are in need of services they are not receiving and are unlikely to receive without the DCS’ and the Court’s involvement, and the coercive intervention of the Court is required to ensure the children’s safety and well being.

Appellants’ App. p. 42.1 [4] On August 25, the trial court issued a preliminary order declaring the children

CHINS and granted DCS’s request to take custody of the children. The court

ordered the parents to return the children to Indiana by 5:00 p.m. on August 26.

Because the children had been moved out of state, the court also ordered

1 Mother and Father are represented by separate attorneys on appeal, and each filed a separate appendix. However the appendices appear to be duplicates. Accordingly, their filings will be cited as one appendix: Appellants’ Appendix.

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Mother and Father to have supervised visits with the children. The court

further ordered Mother and Father to comply with all DCS recommendations,

which included home-based therapy and home-based case management.

Home-based case management is used to help families maintain their housing,

find employment, and budget their money. Tr. p. 17. The home-based case-

management service provider also served as the supervisor for the parents with

the children. [5] Mother and Father were unable to get the children back to Indiana by the

deadline, so Frick flew to Pennsylvania to retrieve them. The children were

originally placed in a foster home in Gary because no foster home in the

Indianapolis area could take them. Three weeks later, DCS was able to move

the children to a foster home in Indianapolis. When the children arrived in

Indianapolis, it was discovered that they had lice. [6] Mother and Father contested the petition and preliminary order declaring the

children CHINS. A fact-finding hearing was held on November 29, 2016.

During the hearing, the court heard testimony that Mother and Father had

moved to a new apartment, that Father had been working since the beginning

of September, and that Mother had been working for a voter-registration group,

although her employment had ended on election day, November 8. The new

apartment had two bedrooms, and two children would sleep in each room, with

Mother and Father sleeping in the living room. Rent, including utilities, was

$275 per week, which Father’s paycheck covered. Mother and Father had beds

for all four children, all utilities were working, and there was ample food in the

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house. Under DCS’s standards, the apartment was “small” but “appropriate.”

Id. at 31, 38, 46. Mother and Father found the apartment without DCS’s

assistance. [7] Regarding employment, Father had started a job at a local distribution center,

working from 8:00 a.m. to 4:00 p.m. Father located and obtained his

employment without DCS’s help. In fact, Father was waiting on the results of a

pre-employment drug screen and background check when DCS began its

investigation into the family. Based on her supervisor’s feedback, Mother had

been hopeful that she would be hired on full-time with the voter-registration

group, but no employment offer was made. At the time of the hearing, she had

been out of work for three weeks but had multiple job leads. She was “trying to

find a job that works different hours than my husband so that we can parent our

children” and eliminate the need for childcare expenses. Id. at 58. [8] The home-based caseworker stated that she supervised Mother’s and Father’s

visits with the children and that Mother is “bonded with the kids, she’s

nurturing, she’s empathetic, she’s engaged in her visits from start to finish. . . . I

don’t have any concerns of – with regards to safety.” Id. at 48. She stated that

Father was “relaxed” during the Thanksgiving visit with the children and could

have been more hands-on. Id. at 43-44. She also testified that Mother and

Father were inconsistent with their visits. Visits were set up for twice a week:

four hours on Sundays and eight hours on Tuesdays. However, the Tuesday

visitation schedule overlapped with Mother’s and Father’s work schedules.

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Recognizing the conflict, DCS permitted the parents to have phone calls with

the children, but Mother and Father called only once. [9] During a home-based case-management session, Mother disclosed that she had

been diagnosed with mental-health issues: bi-polar disorder, ADD, PTSD, and

dissociative disorder. She also disclosed that she had not seen a doctor about

these issues in over two years and was self-medicating with marijuana. The

home-based caseworker testified to Mother’s mental-health issues in relation to

Mother’s concerns that they would be a hurdle for finding employment.

Neither Mother nor Father objected to this testimony. [10] The home-based caseworker also testified that Mother told her that Father had

also been diagnosed as bi-polar, a statement Mother denied making. Both the

family case manager and the home-based caseworker testified about Mother’s

and Father’s mental health and how it impacted their parenting. During this

testimony, both Mother and Father objected:

[T]here’s nothing in the petition indicating mental health issues of the parents[.] . . . The petition really only focuses on the issue of the home and employment. This case has been open since August, the Department could have moved to amend that petition so we would be on notice for that argument.

Id. at 22-23; see also id. at 39. The trial court overruled the objections. [11] At the conclusion of the hearing, the trial court affirmed its preliminary order

and declared the children CHINS. It entered findings to support its order,

which include:

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9. Parents had prior CPS involvement while they lived in New Mexico[2] and had numerous prior [un]substantiated[3] reports of dirty homes and educational neglect of the children.

*****

14. Mother told her homebased case manager Monica Lawrence that she has been diagnosed with bi-polar disorder, dissociative disorder, attention deficit disorder and PTSD and that she has not been seen by a psychiatrist in 2.5 years. Mother stated that she thought these conditions might be an impediment to employment. She also told Ms. Lawrence she was self medicating with marijuana and had consumed such less than two (2) weeks prior to their meeting. Mother also stated Father had bi-polar disorder.

15. Father is employed at [a distribution] warehouse, but his income alone is insufficient to sustain all the family’s needs.

*****

17. The parents have demonstrated a history of employment and housing instability, as well as untreated mental health issues and the children’s physical or mental conditions are seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the children’s parents to supply the children with necessary food, clothing, shelter, medical care, education, and supervision; and the children need care [and] treatment[] that

2 No evidence was introduced during the fact-finding hearing regarding Mother’s and Father’s involvement with CPS in New Mexico other than Father’s statement to DCS manager Frick. 3 The original finding read “numerous prior substantiated reports.” On appeal, DCS acknowledges that this was a scrivener’s error because no evidence was presented showing that any prior claims of abuse or neglect were substantiated. Appellee’s Br. p. 29.

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they are not receiving; and are unlikely to be provided or accepted without the coercive intervention of the Court.

Appellants’ App. pp. 93-94. The court also entered a dispositional decree, in

which Mother and Father were ordered to continue with home-based therapy,

provide random drug screens, and undergo a psychological evaluation. Id. at

108-09. Father was also ordered to participate in the Father Engagement

Program, id. at 108, and Mother was ordered to continue with home-based case

management, id. at 109. [12] Mother and Father both appeal.

Discussion and Decision [13] Mother and Father contend4 that the trial court erred in adjudicating the

children CHINS because DCS did not amend its petition to include mental-

health allegations, and the evidence is insufficient to support the trial court’s

order. [14] To prove a CHINS allegation, DCS must show, by a preponderance of the

evidence, that: (1) the children are under the age of eighteen; (2) one of eleven

different statutory circumstances exists that would make the children CHINS;

and (3) the children need care, treatment, or rehabilitation that they are

currently not receiving and are unlikely to be provided or accepted without the

4 Mother and Father filed separate briefs on appeal. We consolidate their arguments and address them as one.

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coercive intervention of the court. In re K.D., 962 N.E.2d 1249, 1253 (Ind.

2012); see Ind. Code §§ 31-34-1-1 to -11. Here, the trial court adjudicated the

children CHINS under Section 1, which states in part:

A child is a child in need of services if before the child becomes eighteen (18) years of age [] 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, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision[.]

Ind. Code § 31-34-1-1(1).

I. Mental-Health Evidence [15] Mother and Father argue that they were never put on notice that they needed to

defend allegations regarding their mental health.5 Mother and Father contend

that the CHINS petition was based solely on the conditions of the house and

that DCS should have amended its petition if it wanted to include mental-health

issues. In response, DCS contends that Mother and Father did not timely

object to testimony about their mental health and have waived the issue under

Indiana Trial Rule 15(B). [16] A CHINS petition, in part, must contain “[a] concise statement of the facts

upon which the allegations are based, including the date and location at which

5 Mother and Father also argue that the evidence regarding their mental health was improperly admitted during the fact-finding hearing because it was based on hearsay statements. Because we find that the evidence was improperly admitted on other grounds, we do not address this argument.

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the alleged facts occurred.” Ind. Code § 31-34-9-3(C). “Presumably, these

provisions were enacted to give the child’s parent, guardian or custodian notice

of the allegations and the opportunity to contradict the [DCS] case.” Maybaum

v. Putnam Cty. Office of Family & Children, 723 N.E.2d 951, 954 (Ind. Ct. App.

2000); see also Ind. Code § 31-32-2-3 (stating that in CHINS proceedings a

parent is entitled to cross-examine witnesses, obtain witnesses or tangible

evidence by compulsory process and to introduce evidence on his behalf).

“Therefore the CHINS petition is an integral part of ensuring that the parents

have notice of the allegations and an opportunity to contradict [DCS’s]

evidence.” Id. [17] However, parties may expressly or impliedly consent to trying the unpled issue

under Indiana Trial Rule 15(B), which is applicable in CHINS proceedings.6

The rule states, in relevant part, “When issues not raised by the pleadings are

tried by express or implied consent of the parties, they shall be treated in all

respects as if they had been raised in the pleadings.” Ind. Trial Rule 15(B). If a

party raises an objection at trial on the grounds that the evidence is not within

the pleadings, the court “may allow the pleadings to be amended” or “may

grant a continuance to enable the objecting party to meet such evidence.” Id. [18] Upon review of the record, at no time did DCS expressly inform Mother or

Father that it would deviate from the CHINS petition and include evidence of

6 Indiana Code section 31-32-1-3 states that “the Indiana Rules of Trial Procedure apply in all matters not covered by the juvenile law.”

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the parents’ mental-health status. Accordingly, DCS could only raise the issue

at the hearing if Mother and Father impliedly consented. DCS argues that

Mother and Father did consent because no objection was raised during the

family case manager’s testimony that Mother was referred to home-based

therapy because she disclosed a history of mental-health problems. See Tr. p.

18. However, a few minutes later, when the family case manager brought up

the parents’ mental health as a reason why the children should be adjudicated

CHINS, Father’s attorney objected, “I’m going to, sorry for interrupting after

letting her talk for a while, but I was looking at the petition and there’s nothing

in the petition indicating mental health issues of the parents are the basis for

CHINS[.]” Id. at 22. Mother’s attorney joined the objection. Furthermore,

when the home-based caseworker mentioned the parents’ mental health as a

reason for continued supervised visits, the parents again objected to the

testimony. See id. at 39-40. [19] While DCS is correct in its assertion that neither parent objected when the

family case manager first brought up the issue of mental health, we find that

this testimony is readily distinguishable from the later testimony. The initial

testimony specifically dealt with the services that DCS was providing Mother

and Father; it did not go into why the court should adjudicate the children

CHINS like the later testimony did. Mother and Father did not impliedly

consent to their mental health being tried. [20] DCS further contends that the court properly admitted the mental-health

testimony because the court is to consider “the family’s condition not just when

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the case was filed, but also when it [was] heard.” Appellee’s Br. p. 19 (quoting

In re S.D., 2 N.E.3d 1283, 1290 (Ind. 2014)). While we agree that the court is to

consider the family’s condition at the time of trial, this does not circumvent our

notice requirements. DCS has an obligation to amend its pleadings to include

any new allegation(s) that arise between the initial hearing and the fact-finding

hearing. Mother and Father were not properly notified that they needed to

defend against mental-health allegations during the fact-finding hearing.

Because of this, the court erred when it permitted DCS’s witnesses to testify

about the parents’ mental health.

II. Sufficiency of the Evidence [21] Mother and Father also argue that the evidence is insufficient to support the

CHINS ruling. They contend that the issue stated in the petition—substandard

housing—was cured by the time of the fact-finding hearing, and therefore, the

children should have been returned to their care. When the trial court enters

findings of fact and conclusions, we apply a two-tiered standard of review.

Matter of D.P., 72 N.E.3d 976, 979 (Ind. Ct. App. 2017). We first determine

whether the evidence supports the findings, and then determine if the findings

support the judgment. Id. at 980. We do not reweigh the evidence or reassess

witness credibility and will consider only the evidence favorable to the trial

court’s judgment. Id. at 979. [22] The CHINS petition alleged that the children needed to be removed from the

home because Mother and Father “have failed to provide the children with a

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safe, stable, and appropriate living environment.” Appellants’ App. p. 42. The

petition further stated that the home smelled of urine and feces, had no running

water, and “all four children share one twin size mattress.” Id. Despite these

allegations, DCS manager Frick stated that she did not feel the need to remove

the children from the home after her first visit because there was no immediate

threat to the children’s safety. Tr. p. 14. The children were only removed after

DCS learned that Mother had transported the children to relatives living out of

state. Shortly thereafter, both Mother and Father were employed and had

moved to a new apartment. The new home had working utilities, food, and

beds for all four children. Under DCS’s standards, the apartment was “small”

but “appropriate.” Id. at 31, 38, 46. [23] When questioned about any on-going safety concerns for the children, the

family case manager only mentioned the parents’ ability to financially support

the children. “[T]here was no electricity, I mean – I’m sorry, water and the

house was very filthy and there were – I’m concerned about their employment,

so for them to be able to maintain stable housing. The children had lice twice.”

Id. at 25-26. We do not share these concerns. DCS did not present any

evidence that the children contracted lice from the parents’ home. Rather, the

timing of the lice discoveries is such that the children may have contracted the

lice while in DCS’s custody. Furthermore, Mother and Father were able to pay

rent based solely on Father’s income, as he was the only one working at the

time of the hearing, and the parents had moved to an apartment that was

satisfactory under DCS’s standards. We must be very careful not to adjudicate

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children as CHINS “because the parents in question do not fit into a class-based

notion of what a parent should be. The judiciary, prosecutors and the

personnel in the welfare departments should not enforce their personal

standards on those who are less well off.” Matter of D.T., 547 N.E.2d 278, 285

(Ind. Ct. App. 1989) (citing Matter of Dull, 521 N.E.2d 972, 977 (Ind. Ct. App.

1988) (Sullivan, J., dissenting)). [24] DCS argues that the parents need the coercive intervention of the court for the

children to get the services they need. We disagree. To support its contention,

DCS points to the fact that the parents were unsuccessful in obtaining aid from

local resources, that Mother took the children to Pennsylvania to live with

relatives, and that Mother self-medicates for her mental-health issues. Before

DCS’s involvement, Mother and Father recognized that they needed financial

help and sought aid from local resources. If anything, this is an example of

Mother and Father doing what is necessary for their family without the

coercive intervention of the court. Mother’s decision to move the children out

of state after Frick’s first visit was ill-advised. Nevertheless, the children were

returned to Indiana, and DCS was able to complete its initial investigation.

None of DCS’s concerns about the children or their safety in Mother’s care

were substantiated. When specifically questioned about concerns she had for

the children’s safety while with Mother, the home-based caseworker stated, “I

don’t have any concerns of – with regards to safety.” Tr. p. 48. DCS has failed

to show why the continued coercive intervention of the court is necessary.

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Accordingly, we find that the evidence does not support the trial court’s order

and reverse the CHINS adjudications. [25] Reversed.

Mathias, J.,and Crone, J., concur.

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