Dave Stafford for www.theindianalawyer.com

Three Tippecanoe County minor children age 5 and younger who were cared for by their father after they were found home alone in their mother’s home should not have been adjudicated children in need of services, the Indiana Court of Appeals held Friday in reversing the juvenile court.

Mother A.K. was charged with neglect after their father, R.M., requested a well-being check on the children in December 2017. Police found the children unattended, the home in disarray and the door broken down. Father had previously found the children alone, and he told caseworkers he was not paying child support because he believed any money he gave to A.K. would be spent on drugs.

Months earlier, mother and her boyfriend had entered into an informal adjustment with the Department of Child Services due to concerns about substance abuse in the home. After the December 2017 well-being check, the minor children were placed with father, who was working and able to provide care for them, according to the record.

A DCS family case manager later testified that she had no issues with the children being in their father’s care as mother continued to struggle with court-ordered substance-abuse treatments, missing all but three or four of 20 scheduled visits.

Nevertheless, the court adjudicated the children as CHINS in February 2018, finding the only service that “might be appropriate” for father was parenting education. Father later was awarded custody of the children in a separate proceeding last August, after which DCS moved to dismiss the wardship.

In father’s appeal, he challenges whether DCS intervention was necessary, whether the record supports services he was required to complete, and whether a revised statute allows a CHINS court to modify custody. The COA ruled in father’s favor.

“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,” Judge Paul Mathias wrote for the panel in In re the Matter of M.M., A.M., and B.M. (Minor Children), R.M. (Father) v. Indiana Department of Child Services, 18A-JC-1234.

DCS argued that the children should be adjudicated as CHINS “to protect children ‘at imminent risk’ of being displaced or endangered.” But this alone was insufficient, the panel held. “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,’” Mathias wrote.

“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,” when they were in the care of their father. “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.”

The panel also wrote that the CHINS court in this case could have modified custody itself.

“(P)rovided 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,” Mathias wrote.

Finally, the panel found father’s challenge to orders concerning parental participation moot, because the CHINS petition has been dismissed, and the orders are no longer effective.