## FOR PUBLICATION

ATTORNEYS FOR APPELLANT S : ATTORNEYS FOR APPELLEE : JENNIFER M. YOUNG MITCH GERBER Fort Wayne, Indiana Fort Wayne, Indiana DENIS L. KOEHLINGER ROBERT J. HENKE Fort Wayne, Indiana DCS Central Administration Indianapolis, Indiana


## IN TH E COURT OF APPEALS OF INDIANA

IN THE MATTER OF: ) ) R.S. (Minor Child), Child in Need of Services, ) ) And ) ) S.S. (Mother) & B.M. (Father), ) ) Appellant s - Respondents , ) ) vs. ) No. 02A05

- 1208

- JC

- 422 ) THE INDIANA DEPARTMENT OF ) CHILD SERVICES, ) ) Appellee

- Petitioner.

. )

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Charles F. Pratt , Judge Cause No. 02D08

- 1204

- JC

- 149
April 30, 2013 OPINION
- FOR PUBLICATION RILEY, Judge2 STATEMENT OF THE CASE Appellant s - Respondents, S .S. (Mother) and B.M. (Father), (Collectively, Parents) , appeal the trial court’s determination that their infant daughter, R.S. (R.S.), is a child in need of services (CHINS).
We reverse. ISSUE
Parents raise one issue, which we restate as : whether there i s sufficient evidence to support the trial court’s determination that R.S. is a CHINS.

FACTS AND PROCEDURAL HISTORY
In the spring of 2011, the Allen County Department of Child Services (DCS) filed petition s to terminat e the parental relationship between P arents and their three minor children, three

- year - old S.S., two

- year - old A.M., and one - year - old S.M. Hearings on the petitions were held in September, October, November, and December 2011. Testimony at the hearings revealed that S.S., A.M., and S.M. are all special needs children who require occupational, physical, speech, and developmental therap ies . The evidence also revealed that P arents did not have adequate housing or financial resources to care for their three children. In addition, Parents did no t complete court

- ordered educational and therapeutic treatment programs to address their low cognitive functioning and personality disorders. They also had elevated scores on the Child Abuse Potential Inventories. The3

trial court issued orders granting t he petitions to terminat e the Parents’ rights to their
three children on March 12, 2012.
On e month later, on April 2 6 , 2012, Mother gave birth to R.S. The following day, before Mother and R.S. were discharged from the hospital, DCS removed R.S. from
Pare nts based solely on the family’s past history and evidence given during the termination hearings of the three children

. On May 24, 2012, DCS filed a petition alleging that R.S. was a CHINS. All allegations in th e petition relate d to Parents’ history
with S.S., A.M. and S.M. There were no specific factual allegations that R.S. needed care that she was not receiving. The trial court held a hearing on the petition in June 2012. All DCS case workers and supervisors testified that R.S. was removed from Paren ts based solely on the f amily’s history before R.S.’s birth. Further testimony revealed that R.S. was healthy and tested negative for drugs at birth . Mother receives approximately $700 per month in social security disability benefits, and Father is now m aking minimum wage. Following the termination of their parental relationships with S.S., A.M., and S.M., Parents moved out of the large home they had for themselves and their three children and moved into a hotel for two weeks while they waited for their current residence to become available. They now share the $315 per month bill for rent, gas, and water, and have enough money left over to purchase adequate food, clothing, and other necessities for their daughter

. During visits with R.S., Parents approp riately fe d, interact ed with, and nu r ture d
R.S. A DCS Investigator testified that the Parents’ resid ence is clean and appropriate for4

R.S. Parents have adequate formula, diapers, and clothing for R.S. R.S.’s foster mother
testified that she has observed Parents with R.S. and has not seen any behavior that concerns her. A DCS case worker testified that before R.S. was born, Father was accused of , but not charged with , molesting a child that lived in Parents’ home. DCS substantiated the allegations, and Father was appealing the substantiation at the time of the hearing. Father also has a 2011 misdemeanor conviction for public indecency for wearing his pants too low. Mother has a 2012 theft conviction. Although Mother suffer s from a personality disorder , post

- traumatic stress , and a learning disability, she discontinued her medication during her pregnancy with R.S. because she was worried about her baby’s health . At the time of the hearing, Mother had a medical appointment scheduled so that she c ould re sume taking her medication. When asked why s he thought s he was in a better position to parent now tha n she had been in the past , Mother responded as follows:

Because, um, I’ve learn[ed] from my past. I know I messed up in the past. And now since I feel and I know that I’m stable. I have everything I need for her and I know I can do this. I can raise my child. (Transcript p. 88). Following the hearing, on June 20, 2012, the trial court issued an order adjudicating R.S. to be a CHINS. The order provi des in relevant part as follows:
1. The court may rely on an historic pattern of a parent’s behavior in determining whether a child is in need of services. . . .

* * *
6. Given the close proximity of time from which their parental rights to oth er chil dren were terminated and that fact that most other significant reasons for which the termination order was entered have5 not been corrected, this court finds and concludes that the child’s physical and and/or mental condition is seriously impaired or at risk as a result of the parents’ inability to provide the child with the necessary shelter and supervision. Parents now appeal. We will provide additional facts when necessary.

DISCUSSION AND DECISION The Due Process Clause of the Fourteenth Amen dment to the United States Constitution protects the fundamental rights of parents in directing the care, custody, and control of their children. In re T.H.I, 856 N.E.2d 1247, 1250 (Ind. Ct. App. 2006). However, these rights are limited, and the State ha s the authority under its parens patriae power to intervene when necessary to protect the health and safety of children. Id. The purpose of a CHINS adjudication is to protect children rather than to punish parents. In re N.E. , 919 N.E.2d 102, 106 (Ind. 2 010). To that end, a juvenile court need not wait until a tragedy occurs to intervene. In re. A.H. , 913 N.E

. 2d 303, 305 (Ind. Ct. App. 2009). Here, Parents’ sole argument is that there is insufficient evidence to support the trial court’s CHINS determi nation with respe c t to R.S.

. Because the juvenile court entered findings of fact and conclusions of law, we apply a two

- tiered standard of review. Parmeter v. Cass County Department of Child Services , 878 N.E.2d 444, 450 (Ind. Ct. App. 2007). We first c onsider whether the evidence supports the factual findings and then whether the findings support the judgment. Id. While we defer substantially to findings of fact, we do not do so to conclusions of law. Id. DCS has the burden of6

proving by a preponder ance of the evidence that a child is a CHINS. In re A.H. , 751 N.E.2d 690, 695 (Ind. Ct. App. 2001), trans. denied

. Indiana Code section 31

- 34

- 1

- 1

- provides: A child is a [CHINS] if before the child becomes eighteen (18) years of age: (1) The child’s physic al 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 sup ervision; and (2) The child needs care, treatment, or rehabilitation that: (A) the child is not receiving; and (B) is unlikely to be provided or accepted without the coercive intervention from the court. Here, our review of the evidenc e reveals that Parents’ parental relationship s with S.S., A.M., and S.M. were terminated in part because the P arents lacked financial resources and adequate housing to properly care for their three special needs children who all required occupational, physical, sp eech, and developmental therapies. However,
R.S. is a healthy infant who tested negative for drugs. Mother now receives approximately $700 per month in social security disability benefits, and Father has a minimum wage job. They share their monthly bill for rent, gas, and water, and have enough money left over to purchase adequate food, clothing, and other necessities for R.S. Their residence is clean and appropriate for R.S. During visits with R.S., Parents appropriately fed and nurture d their daughte r.7

This evidence simply does not support the trial court’s conclusion that the most significant reasons for which the prior termination order was ent e red have not been corrected, and R.S.’s physical and/or mental condition is seriously impaired or at risk as a

re s ult of the parents’ inability to provide the child with the necessary shelter and supervision. A CHINS adjudication focuses on the condition of a child, and whether that child needs services. In re N.E. , 919 N.E.2d 102, 105 (Ind. 2010). It in no way challenges the general competency of a parent to continue a relationship with a child. Id. Only when the State moves to terminate a parent’s rights does an allegation of fault
attach. Id. Further, a CHINS adjudication may not be based solel y on conditions that no longer exist. Matter of D.T.  ̧ 547 N.E.2d 278, 284 (Ind. Ct. App. 1989), trans. denied

. The trial court should also consider the parents’ situation at the time the case is heard by
the court. In re C.S. , 863 N.E.2d 413, 418 (Ind. Ct. App. 2007), trans. denied. Here, it is a pparent that Parents have made positive changes in their lives. This is something for which we should applaud them rather than condemn them through coercive action. See In re V.H., 967 N.E.2d 1 066, 1073 (Ind . Ct. App. 2012). A ccordin g ly, we reverse the trial court’s order determinati ng that R.S. is a CHINS.
CONCLUSION Based on the foregoing, there is insufficient evidence to support the trial court’s
determination that R.S. is a CHINS. Reversed.8

BRADFORD, J. and BROWN, J. concur