Court of Appeals of Indiana | Opinion 45A04-1404-JC-193 | April 15, 2015 Page 1 of 9

ATTORNEY FOR APPELLANT

P. Jeffrey Schlesinger

Merrillville, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Robert J. Henke

David E. Corey

Office of the Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the matter of: L.E., et al;

G.E.

Appellant-Petitioner,

v.

Indiana Department of Child 

Services,

Appellee-Respondent.

April 15, 2015

Court of Appeals Cause No.

45A04-1404-JC-193

Appeal from the Lake Superior 

Court

Lower Court Cause No.

45D06-9504-JC-1521

The Honorable Thomas P. 

Stefaniak, Jr., Judge

Pyle, Judge.

Statement of the Case

[1] G.E. appeals the juvenile court’s denial of her petition to expunge a 

substantiated report of child neglect regarding her children. She claims that she 
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presented clear and convincing evidence that she was unlikely to be a future 

perpetrator of neglect and that there was no reason to justify the retention of the 

record by the Department of Child Services (“DCS”), thus satisfying the 

requirements of INDIANA CODE § 31-33-27-5. Concluding that G.E. did not 

carry her burden of presenting clear and convincing evidence satisfying the 

statutory requirements, we affirm the juvenile court’s denial of G.E.’s

expungement petition.

[2] We affirm.

Issue

[3] Whether the juvenile court erred in denying G.E.’s petition.

Statement of Facts

[4] On or about December 15, 2000, the Lake County Superior Court, juvenile 

division, entered an order terminating G.E’s parental rights to four of her 

children. In relevant part, the juvenile court concluded as follows:

The child(ren) [have] been removed from the parent[] for [at] least six 

(6) months under a dispositional decree[] of this Court dated 7-06-95, 

Cause Number[] 49D069504JC01521. 

There is a reasonable probability that the conditions resulting in the 

removal of the [children] from the [parent’s] home will not be 

remedied in that: The [C]hildren were removed from Mother in 1995[]

due to neglect. Mother’s home was found to be filthy and the Children 

had poor attendance in school. Mother had a history of drug abuse. 

The Case Plan for reunification included drug treatment, parenting 

classes, random drug screens, and visitation. Although Mother 

attended two drug treatment programs, Mother relapsed after both 
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programs. Mother’s visits with the Children were sporadic. Mother 

did not complete parenting classes. Mother has had very little 

involvement with the Children recently. [L.E.] had been returned to 

Mother briefly but was later removed again[] due to Mother’s relapse. 

None of the other Children were ever returned to the Mother since 

their initial removal. 

There is a reasonable probability that the continuation of the parentchild relationship poses a threat to the well-being of the child[ren] in 

that: for the same reasons stated above.

It is in the best interest of the [Children] and [their] health, welfare[,] 

and future that the parent-child relationship between the child[ren] and 

the parents be forever fully and absolutely terminated.

(App. 40).

[5] In June of 2013, G.E. began working as a cook at Pinnacle Family Child Care 

(“Pinnacle”) in Gary. After about two months, Pinnacle informed G.E. that 

she could no longer work there because of the substantiated report of neglect 

regarding her children. Pinnacle eventually allowed G.E. to return and ensured 

that she did not have direct contact with children. See Tr. 11-12. 

[6] On November 13, 2013, G.E. filed a petition to expunge the records of her 

children in need of services (“CHINS”) case pursuant to INDIANA CODE § 31-

33-27-5. The juvenile court held a hearing on G.E.’s petition on February 7, 

2014. The only evidence presented was G.E.’s testimony. She told the juvenile 

court that she had not used any controlled substances since 2003, that she is in 

contact with all of her children and some of her grandchildren, and that she has 
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had no further contact with the juvenile courts, nor had she committed any 

crimes. 

[7] DCS relied on the proceedings from the CHINS and termination of parental 

rights cases. The juvenile court also took judicial notice of the order 

terminating G.E.’s parental rights. The juvenile court took G.E.’s petition 

under advisement and denied her petition later the same day. 

[8] On March 10, 2014, G.E. filed a Motion to Correct Errors. The juvenile court 

denied G.E.’s motion without a hearing, and now she appeals.

Discussion

[9] G.E. appeals the denial of her motion to correct errors regarding her petition to 

expunge the substantiated report of child neglect. She essentially claims that 

she presented clear and convincing evidence satisfying the requirements of 

INDIANA CODE § 31-33-27-5 and, because of that, the juvenile court should 

have granted her petition. 

[10] The legislature enacted the Expungement of Child Abuse or Neglect Reports 

statute in March of 2012, and this appears to be our first review of a petition 

under this statute. INDIANA CODE § 31-33-27-5 provides the following:

(a) This section applies to information relating to substantiated 

reports in any records of [DCS]. 

(b) An individual identified as a perpetrator of child abuse or 

neglect in a substantiated report may file a petition with a 

court exercising juvenile jurisdiction in the county in which 
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the individual resides, requesting that the court order [DCS]

to expunge the substantiated report and related information. 

(c) The petitioner shall:

(1) name [DCS] as respondent in the petition; and

(2) serve [DCS] with a copy of the petition and a summons.

(d) The court shall hold a hearing on the petition and any 

response filed by [DCS].

(e) In considering whether to grant the petition filed under this 

section, the court may review:

(1) the factors listed in IC 31-39-8-3 in relation to the 

petitioner, if the substantiated report was the subject of 

a juvenile court case; and

(2) any facts relating to the petitioner’s current status, 

activities, employment, contacts with children, or other 

circumstances relevant to consideration of whether the 

petition should be granted. 

(f) The court may grant the petition if the court finds, by clear 

and convincing evidence, that :

(1) there is little likelihood that the petitioner will be a 

future perpetrator of child abuse or neglect; and

(2) the information has insufficient current probative value 

to justify its retention in records of the department for 

future reference. 
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(emphasis added).

[11] The interpretation of a statutory scheme is a question of law reserved for the 

courts. Garcia v. State, 979 N.E.2d 156 (Ind. Ct. App. 2012). When 

determining the legislature’s intent, we look at the “plain language of the statute 

and attribute the common, ordinary meaning to terms found in everyday 

speech.” Id. at 158. If the word “shall” is used, it is construed as mandatory 

language creating a statutory right to a particular outcome after certain 

conditions are met. Romine v. Gagle, 782 N.E.2d 369, 379 (Ind. Ct. App. 2003), 

trans. denied. However, the “term ‘may’ in a statute ordinarily implies a 

permissive condition and a grant of discretion.” Id. at 380. A trial court abuses 

that discretion when its decision is clearly against the logic and effect of the 

facts and circumstances before it. An–Hung Yao v. State, 975 N.E.2d 1273 (Ind.

2012).

[12] The clear and convincing standard is an intermediate standard of 

proof that[] lies between a preponderance of the evidence and 

beyond a reasonable doubt which is required to find [a 

defendant] guilty in criminal prosecutions. The burden of proof 

by clear and convincing evidence is not a burden of convincing 

you that the facts which are asserted are certainly true or that 

they are almost certainly true or are true beyond a reasonable 

doubt. It is, however, greater than a burden of convincing you 

that the facts are more probably true than not.

[13] In re G.Y., 904 N.E.2d 1257, 1260, n.1 (Ind. 2009) (internal quotation marks 

and citations omitted). 
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[14] Because G.E.’s burden of proof is clear and convincing, on appeal we will not 

impose our view on whether the evidence meets this standard. See In re 

Marriage of Huss, 888 N.E.2d 1238, 1245 (Ind. 2008) (citing Guardianship of B.H., 

770 N.E.2d 283, 288 (Ind. 2002)). Rather, we consider only the probative 

evidence and reasonable inferences supporting the trial court’s decision to 

determine whether clear and convincing evidence was presented. Id. Where, as 

done here, the juvenile court enters a general order, “on appellate review the 

trial court’s judgment will be affirmed if sustainable on any theory or basis 

found in the record.” J.M. v. Review Bd. Of Indiana Dept. of Workforce 

Development, 975 N.E.2d 1283, 1289 (Ind. 2012).

[15] Here, the only evidence presented was G.E.’s testimony that she had not used 

any controlled substances since 2003, that she was is in contact with all of her 

children and some of her grandchildren, and that she had not had any further 

contact with the juvenile courts or committed any crimes. Because G.E.’s 

burden of proof is clear and convincing evidence, and that burden is greater 

than a preponderance of the evidence, it was not unreasonable for the juvenile 

court to deny her petition where the only evidence presented was her testimony. 

See, e.g., Petition of Meyer, 471 N.E.2d 718, 721 (Ind. Ct. App. 1984) (clear and 

convincing standard not met where Mother’s testimony of daughter’s desire to 

change surname was the only evidence). 

[16] In addition, even if we were to assume that G.E’s testimony alone established 

by clear and convincing evidence that she no longer posed a threat to children, 

the juvenile court still did not err. INDIANA CODE § 31-33-27-5(f) also requires 
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G.E. to show that her substantiated report of neglect or abuse no longer has 

current probative value to keep in DCS’s records. Here, the fact that G.E. chose 

to work at a child care center makes her history of child neglect and substance 

abuse relevant, as INDIANA CODE §§ 31-33-26-2 thru 31-33-26-16 require DCS 

to maintain a database of perpetrators like G.E. and make that database 

available to certain people and entities, including child care providers. Further, 

child care providers are prohibited by administrative rule from employing or 

utilizing “the services of a person known by the division and reported to the 

center as a substantiated perpetrator of child abuse.” 470 Ind. Admin. Code 3-

4.7-13(c) (2015). Further, if a criminal history check of an employee shows that 

an offense of child abuse, neglect, or exploitation has occurred, “sufficient 

grounds exist to revoke or deny licensure, deny employment or dismiss an 

employee[.]” 470 IAC 3-4.7-8(c)(16) (2015).1 Given the potential risk to 

Pinnacle’s child care license, the statutory and administrative schemes 

governing the operation of child care providers make clear that G.E.’s records 

have probative value. 

[17] Therefore, we find that G.E. has not shown by clear and convincing evidence 

that (1) there is little likelihood that she will be a future perpetrator of child 

abuse or neglect; and (2) that there is insufficient current probative value to 

 

1 We note that a criminal history check may not have revealed information regarding G.E.’s child and 

substance abuse history contained in DCS’s records. However, the language of the regulatory scheme 

highlights the probative value of an individual’s history of child or substance abuse as it relates to working for 

a child care provider, criminal or otherwise.
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justify the retention of her records by DCS for future reference. We affirm the 

juvenile court’s denial of her petition.

[18] Affirmed.

[19] Barnes, J., and May, J., concur.