author: Bailey, Judge.

text:
    WHITESELL PRECISION COMPONENTS, INC., Appellant-Plaintiff, v. AUTOFORM TOOL & MANUFACTURING, LLC, Appellee-Defendant.
    Court of Appeals Case No. 18A-PL-848
    Court of Appeals of Indiana.
    Filed August 31, 2018
    Attorneys for Appellant: Andrew W. Hull, Michael R. Limrick, Evan D. Carr, Hoover Hull Turner LLP, Indianapolis, Indiana
    Attorneys for Appellee: A. Richard M. Blaiklock, Charles R. Whybrew, Lewis Wagner, LLP, Indianapolis, Indiana
   Bailey, Judge.

Case Summary

[1] Whitesell Precision Components, Inc. ("Whitesell") brings this interlocutory appeal, pursuant to Indiana Appellate Rule 14(A)(5), challenging the trial court's refusal to dissolve a preliminary injunction compelling Whitesell to provide automotive component parts to Autoform Tool & Manufacturing, LLC ("Autoform"), pending resolution of the merits of litigation between the parties. Whitesell presents the sole issue of whether the trial court abused its discretion in refusing to dissolve the preliminary injunction issued pursuant to the parties' agreement. We affirm.

Facts and Procedural History

[2] Whitesell is in the business of manufacturing and distributing engineered, specialty, and standard components and parts used in various industries, including in the assembly and manufacture of automobiles. Autoform is in the business of manufacturing components used in the assembly and manufacture of automobiles. Autoform uses injector cups supplied by Whitesell to produce fuel rail assemblies that Autoform sells to Hitachi America, Ltd. ("Hitachi"). Hitachi places fuel injectors into Autoform's fuel rail assemblies, and the finished products are installed into automobiles.

[3] Pursuant to direction from Hitachi, Autoform agreed in 2013 to use Whitesell as its sole source of injector cups. Autoform utilizes a "just-in-time" inventory system whereby parts are not stockpiled. The quantity of parts ordered at one time may vary. In October of 2013, Whitesell provided Autoform a per-unit quoted price of $2.470 for each injector cup, based upon a five-year quantity estimate. In January of 2014, Autoform requested a price quote for lower-volume shipments and Whitesell provided a quote of $2.958 for each injector cup.

[4] On November 17, 2014, Autoform issued its first purchase order to Whitesell. The purchase order listed the per unit price of $2.470. Whitesell filled the purchase order. Autoform then issued subsequent purchase orders, each listing the $2.470 price.

[5] On July 29, 2016, Whitesell issued an invoice to Autoform reflecting the $2.958 price. Whitesell also sought an alleged "payment shortfall" of $343,154.15. Autoform did not pay the amount demanded and, on September 21, 2016, Whitesell informed Autoform that shipments of the injector cups would cease on October 1, 2016. That date was extended as the parties attempted to reach an agreement. However, on December 22, 2016, Whitesell ceased its shipments of injector cups to Autoform.

[6] On December 27, 2016, Autoform filed a motion seeking a temporary restraining order against Whitesell, and the trial court conducted a hearing on January 4, 2017. At that hearing, Autoform advised the trial court that Autoform's supply of injector cups would likely be exhausted by the next day. The next day, the trial court issued a temporary restraining order decreeing that Whitesell was to be restrained from:

Refusing to supply the injector cups to Autoform pursuant to the terms of Autoform Purchase Orders:
Taking any other action inconsistent with its obligations under the terms of the Autoform Purchase Orders;
Refusing to allow Autoform to order injector cups pursuant to the same protocol and terms that it had, including the $2.470 per-unit price for injector cups;
Charging per-unit price of injector cups sold to Autoform in fulfillment of Autoform's Purchase Orders above $2.470; and
Applying and [sic] Terms and Conditions in addition to those ordered by this Court.

(App. Vol. II, pg. 7).

[7] After some continuances and discovery disputes, the trial court set the matter for a preliminary injunction hearing. However, the parties reached an agreement and submitted their stipulations to the trial court. On September 27, 2017, the trial court entered an Agreed Order vacating the court date and converting the temporary restraining order to a preliminary injunction. In relevant part, the Agreed Order provided:

The Court's January 5, 2017, Temporary Restraining Order shall remain in effect until the Court enters judgment after the bench trial, except that Autoform is not required to post bond payments for its actual requirements of injector cups ordered from Whitesell through the time the Court enters judgment. By agreeing to continue the preliminary injunction hearing, no party waives any rights that it may have including the right to argue that the contract between the parties has already expired or will expire between the date of this order and the trial of this matter.

(App. Vol. II, pg. 166.)

[8] Thereafter, a dispute arose concerning the quality of the injector cups supplied by Whitesell to Autoform. On October 5, 2017, the trial court issued a pre-trial order providing that Autoform could debit Whitesell's account for each defective injector cup delivered. Whitesell unsuccessfully sought to have the language of the order modified or to have the order vacated.

[9] On February 12, 2018, Whitesell filed a motion to dissolve the preliminary injunction. On March 5, 2018, the trial court conducted a hearing on several pending matters, including the motion to dissolve the preliminary injunction. No evidence was presented but argument of counsel was heard. On April 16, 2018, the trial court denied Whitesell's motion. Whitesell appeals.

Discussion and Decision

Standard of Review

[10] We review a trial court's decision to dissolve or refuse to dissolve a preliminary injunction for an abuse of discretion. Hannum Wagle & Cline Eng'g, Inc. v. American Consulting, Inc. , 64 N.E.3d 863, 882 (Ind. Ct. App. 2016). A trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstances or if the trial court misinterprets the law. Aberdeen Apts. v. Cary Campbell Realty Alliance, Inc. , 820 N.E.2d 158, 163 (Ind. Ct. App. 2005), trans. denied. To the extent that the trial court engaged in fact-finding with respect to the proper length of the injunction, we accord deference to facts found. Hannum Wagle , 64 N.E.3d at 882. To the extent that the decision was based upon contract interpretation, we apply a de novo standard of review. Id.

[11] Here, the preliminary injunction was entered due to the parties' stipulation. Generally, a stipulation may not be withdrawn without the consent of both parties or for cause. In the Matter of Ce.B. , 74 N.E.3d 247, 250 (Ind. Ct. App. 2017). Typical grounds would include fraud, mistake, or undue influence and do not include disadvantage to a party from the stipulation. Id.

Analysis

[12] At the hearing on Whitesell's motion to dissolve the injunction, Whitesell asserted "no evidentiary hearing is required at all," Tr. at 116, but argued (1) any emergency had passed because Autoform had adequate time to find an alternate supplier and (2) continuation of the injunction was inequitable because an imbalance of power had been created by the trial court's subsequent order that Autoform could debit the balance owed Whitesell for parts Autoform considered defective. In denying Whitesell's motion, the trial court stated in relevant part:

First, Autoform's [prior] testimony that it would take at least twelve months to find an alternative supplier supports the argument that Autoform would suffer irreparable harm if Whitesell was allowed to stop shipping parts. The same risk of harm exists today as it existed in January 2017. If Whitesell could refuse to ship injector cups, Autoform cannot build its fuel rail assemblies because there is no readily accessible alternative source of the specific injector cups needed. Autoform would have to close its fuel rail assembly line and lay off workers. ... To the extent the January 5 TRO restricts remedies which would normally be available to Whitesell by statute, such temporary equitable measures are necessary to allow the parties to conduct business as the Court addresses the merits of this case, which is a position Whitesell approved when it entered into a joint agreement with Autoform to allow the January 5 Order to be entered as a preliminary injunction on September 27, 2017....
It is because Whitesell has [an] avenue to recover its damages that the Court finds keeping the January 5 TRO in place to be proper.

Appealed Order at 7-9.

[13] Whitesell argues that the injunction is now "more extensive in scope than is reasonably necessary to protect the interests of aggrieved parties," Appellant's Brief at 17 (quoting Felsher v. Univ. of Evansville, 755 N.E.2d 589, 600 (Ind. 2001) ). According to Whitesell, it was incumbent upon the trial court to require Autoform to provide evidence of its current ability to re-source but the trial court declined to do so and simply relied upon facts that existed in the past. Whitesell largely ignores the fact that it agreed to the continuation of the injunction until the resolution of the underlying litigation.

[14] Autoform contends that Whitesell stipulated to the entry of the preliminary injunction, thus forfeiting its right to appeal the injunction, and that its motion for dissolution is an attempt to collaterally attack the agreed order. Autoform directs our attention to Kindred v. Townsend , 4 N.E.3d 793 (Ind. Ct. App. 2014), in which a panel of this Court dismissed an interlocutory appeal upon determining that the appellant had forfeited a right to appeal a preliminary injunction and then attempted to revive the forfeited right by filing a motion to dissolve the injunction based on matters known when the preliminary injunction was issued.

[15] In Kindred , the trial court had granted a preliminary injunction to prevent damage to disputed property and neither party appealed. Id. at 794. Six months later, the Kindreds moved to dissolve the preliminary injunction, claiming that the other party lacked standing. Id. at 795. The trial court denied the motion to dissolve and the Kindreds appealed. Id. This court acknowledged that, at first glance, it appeared that the Kindreds were properly appealing the denial by bringing an appeal as of right pursuant to Appellate Rule 14(A)(5). Id. However, the Court also considered the appellee's contention that the motion to dissolve was "not based on any new facts or circumstances that had arisen since the trial court's entry of the preliminary order." Id.

[16] We found that the Kindreds had pursued a belated, collateral attack on the trial court's initial decision to enter an injunction, explaining:

Appellate Rule 14(A)(5) provides for an interlocutory appeal as of right from orders denying a motion to dissolve a preliminary injunction. However, if read broadly, this would permit a party subject to a preliminary injunction to repeatedly bring motions to dissolve a preliminary injunction and repeatedly appeal such denials. Indeed, if we were to read Appellate Rule 14(A)(5) this broadly, a party who forfeited the right to appeal from the entry of the preliminary injunction could repeatedly resurrect their right to appeal by simply filing a motion to dissolve the injunction. Likewise, a party who forfeited the right to appeal a denial of a motion to dissolve a preliminary injunction could resurrect their appeal by filing a repetitive motion to dissolve the injunction. This would render the time limitations of Appellate Rule 14(A) meaningless.
We therefore read Appellate Rule 14(A)(5) to mean that a party who wishes to challenge the entry of a preliminary injunction order (or the denial of a request for a preliminary injunction) must initiate their appeal within thirty days of the trial court's order granting or denying the request for a preliminary injunction. If a party fails to do so, it may not thereafter seek to dissolve the preliminary injunction based upon grounds that were known or knowable at the time of the entry of the preliminary injunction, as this would simply be a belated, collateral attack on the trial court's initial decision to enter or deny the injunction. To hold otherwise would allow limitless appeals based on the same facts tried and decided to enter or deny a preliminary injunction. On the other hand, if a party moves to dissolve a preliminary injunction based upon a change in circumstances since the entry of the injunction, and the trial court grants or denies this motion, then the party has the right to appeal the trial court's order dissolving or refusing to dissolve the injunction.

Id. at 796.

[17] Whitesell's claim that it is entitled to dissolution of the preliminary injunction based upon the passage of sufficient time for re-sourcing is such a collateral attack. When Whitesell stipulated with Autoform that the temporary restraining order should be converted to a preliminary injunction, the parties agreed to its duration, that is, until the litigation was resolved by trial. The agreed order did not impose a time limit for Autoform to find a new supplier; indeed, Autoform was not obligated to re-source its needs. Whitesell cannot now be heard to complain that the trial court abused its discretion with respect to the proper length of the injunction.

[18] However, when the preliminary injunction was issued, Whitesell did not know that Autoform would obtain an order specifically permitting debits to Whitesell's account for parts Autoform considered defective while Whitesell was restrained from ceasing shipments. We cannot say that Whitesell forfeited any right to argue before the trial court that this so changed the respective obligations that the continuation of the injunction was inequitable. In advancing its position, Whitesell did not present testimony or evidentiary exhibits. On appeal, Whitesell alternately claims that new evidence was unnecessary or that Autoform should have produced evidence. Nonetheless, it is apparent from the record of pre-trial orders that there had been a change in circumstances relative to the parties' business transactions. Whitesell asked the trial court to consider the necessity for continuing the injunction given that, in Whitesell's view, there was "an imbalance of power" and the "emergency was long over." (Tr. at 105, 108.)

[19] The trial court's order reflects its consideration of the threatened harm to each party under the changed circumstances, including allowing Autoform to debit Whitesell's account. The trial court stated in relevant part:

Whitesell alleges that Autoform is deducting for parts that it considers defective but have not been shown to be defective pursuant to the standards of the agreement between them. This leaves Whitesell being forced to accept an even lower amount of money for shipments of parts due to Autoform's unilateral rejection of potentially good parts.
Whitesell and Autoform disagree over the extent to whose Terms & Conditions should serve as the standard to determine whether a part is defective. The issues over part quality are currently pending on summary judgment. Until the Court can make determinations regarding whose standards apply to part quality, the Court must balance the harms of allowing Autoform to debit for parts it subjectively believes are defective verses repealing the January 5 TRO.
If the Court allows the current arrangement to continue, there is a risk that Whitesell will be erroneously denied revenue if Autoform is applying an overly-stringent standard. Whitesell has stated that it has suffered hundreds of thousands of dollars in damages just to this point. On the other hand, if Autoform is not comfortable using Whitesell parts that Autoform believes do not conform with required specifications, Autoform could have a fuel rail shortage and be unable to fill its orders for Hitachi. Failure to satisfy orders would have an impact on its subsequent dealings with Hitachi, and Autoform could lose that business.
Again, the designations presented show that the balance of harms weighs in favor of Autoform because of the irreparable harm that could befall Autoform if it does not receive enough conforming parts. The Court understands that Whitesell may feel aggrieved by this stance as Autoform's determination of part quality governs for the purposes of determining the quantity of parts required under the TRO; however, Whitesell has the opportunity to seek any damages it may be incurring during this period should the Court determine that Autoform's assessment is incorrect on summary judgment.

Appealed Order at 8-9.

[20] In short, the trial court found that Whitesell could be adequately compensated by money damages if Autoform had acted wrongfully but, in the event Whitesell had acted wrongfully, Autoform was at risk of suffering irreparable harm - that which could not be adequately addressed by money damages. The trial court's decision is not clearly contrary to the facts and circumstances before it.

Conclusion

[21] Whitesell has demonstrated no abuse of discretion in the trial court's denial of the motion to dissolve the preliminary injunction.

[22] Affirmed.

Mathias, J., and Bradford, J., concur.

      Indiana Appellate Rule 14(A)(5) provides: "Appeals from the following interlocutory orders are taken as a matter of right ... Granting or refusing to grant, dissolving, or refusing to dissolve a preliminary injunction[.]"

      The facts are derived from the trial court's order of January 5, 2017 granting Autoform a temporary restraining order.

      Autoform was ordered to post a bond of $50,000.00 plus additional amounts reflecting the price difference of $0.298 per injector cup ordered.

      Black's Law Dictionary defines "stipulation" as including "a voluntary agreement between opposing parties concerning some relevant point," for example, "the plaintiff and defendant entered into a stipulation on the issue of liability." (10th ed. 2014 Pg. 1641).

      A temporary restraining order preserves "the status quo until a litigant's application for a preliminary or permanent injunction can be heard." Blacks's Law Dictionary (10th Ed. 2014 Pg. 1693).

      Whitesell referenced factual finding 26 of the trial court's January 5, 2017 order, which stated: "Autoform presented testimony that it would anticipate needing roughly twelve months to find a new source for injector cups. While searching for a new supplier, Autoform could not carry on producing its product for Hitachi." (App. Vol. II, pg. 98.)

      The efforts made by Autoform to re-source, if any, are not of record. However, Autoform has requested, in a related motion, to be permitted to stop using Whitesell as its supplier of injector cups.

      Whitesell asserts that it had an initial burden to show a change in circumstances but then Autoform needed to produce evidence to justify continuation of the injunction. In making this argument as to burden of proof, Whitesell does not acknowledge that it also stipulated that the temporary restraining order should be converted to a preliminary injunction. The burden of producing evidence was upon Whitesell, which sought to dissolve an agreed order. In re Ce.B. , 74 N.E.3d at 247.
      Whitesell also claims, in the Reply Brief, that the "only question" remaining before this Court is whether the "key findings" of the appealed order lacked evidentiary support. Reply Brief at 20. But Whitesell fails to explain how, if findings were set aside as clearly erroneous because they lacked evidentiary support, this entitles Whitesell to dissolution of the injunction.

      Autoform retained a right, under the UCC, to reject defective parts, although it might ultimately have to pay damages. See Ind. Code § 26-1-2-601. Whitesell argued that it was barred by the injunction from exercising its right to suspend performance or cancel the contract due to Autoform's wrongful rejection of parts and failure to make payment. See I.C. § 26-1-2-703.


source: Caselaw Access Project

author: Kirsch, Judge.

license: Public Domain

text:
    In the MATTER OF A.R. and H.R., Children in Need of Services,
    J.R., Father, Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner, and Child Advocates, Inc., Co-Appellee (Guardian ad Litem).
    Court of Appeals Case No. 18A-JC-475
    Court of Appeals of Indiana.
    FILED August 31, 2018
    Attorneys for Appellant: Victoria Bailey, Marion County Public Defender Agency, Appellate Division, Indianapolis, Indiana, Steven J. Halbert, Indianapolis, Indiana
    Attorneys for Appellee, Indiana Department of Child Services: Curtis T. Hill, Jr., Attorney General of Indiana, Robert J. Henke, Katherine A. Cornelius, Deputy Attorneys General, Indianapolis, Indiana
    Attorney for Appellee Child, Advocates, Inc.: DeDe K. Connor, Indianapolis, Indiana
   Kirsch, Judge.

[1] J.R. ("Father") appeals the juvenile court's order adjudicating two of his children, A.R. and H.R., to be children in need of services ("CHINS"). Father raises three issues for our review, which we consolidate and restate as follows:

I. Whether the juvenile court had jurisdiction to enter a CHINS adjudication and disposition;
II Whether the Indiana Department of Child Services ("DCS") presented sufficient evidence that A.R. and H.R. were CHINS.

[2] We reverse.

Facts and Procedural History

[3] M.R. ("Mother") and Father are the parents of five children, including A.R., born in Henderson County, North Carolina in April 2005, and H.R., born in Lafayette, Indiana in March 2012. In 2014, parents were living together and with the children, in North Carolina. In September 2014, the North Carolina Department of Social Services ("NCDSS") removed the children from the home and filed a juvenile petition, similar to what would be a CHINS petition in Indiana, as to the five children, alleging unstable housing, substance abuse by parents, and domestic violence between parents. In March 2015, the children were adjudicated as abused and neglected juveniles. Pet'r's Exs . 1, 2, 3, 4. From September 2014 until sometime in 2016, the children were in the care and control of NCDSS.

[4] Following a May 2016 review hearing, the North Carolina juvenile court issued a Subsequent Permanency Planning and Review Order on July 15, 2016 ("July Review Order"). The July Review Order reflected testimony of social worker William Winters ("SW Winters") that Mother completed her case plan and that Mother wanted to move to Indiana. SW Winters also testified that Father had multiple failed drug screens, but paid child support, visited regularly, was employed, and was bonded with the children. Id. The North Carolina juvenile court awarded custody of the five children to Mother, granted Father supervised visitation, to be supervised by specified maternal and paternal family members, and closed the CHINS proceedings. Pet'r's Exs . 1, 2. The July Review Order also stated that North Carolina "retains jurisdiction in this matter until terminated by order of the Court" or until the children reach the age of majority. Id.

[5] At or around the end of the school year in 2016, Mother left North Carolina with all five children. However, after a period of time, she and the children returned to North Carolina, where they lived in a separate residence from Father. At some point, three of the children moved in with Father. At the end of April 2017, Mother returned to Indiana with A.R. and H.R., the two children who were not living with Father and are the subject of the current CHINS case.

[6] In May 2017, NCDSS received reports of an "injurious environment" at Father's home and, in response, it filed on June 23, 2017 a Motion to Re-Open and to Review the previously closed CHINS matter. NCDSS conducted an investigation of Father's residence and his girlfriend, with whom he lives. Social worker Vanessa Phillips ("Phillips") found no evidence of abuse or neglect, Father took and passed all drug screens, and had started attending a substance abuse group. Pet'r's Ex . 3. The NCDSS asked the North Carolina juvenile court to approve the three children living with Father and remove the previously-ordered supervised visitation. Id. The Motion to Re-Open also reflected that NCDSS made a report to DCS, "who initiated [its] own investigation." Id.

[7] Here in Indiana, Mother was uncooperative with DCS's investigation throughout May. DCS was investigating reports of housing instability and that at least some of the children missed school because Mother was out at bars and did not return home, Mother allowed A.R.'s fourteen-year-old boyfriend to sleep over and have sex with A.R., Mother had sex in front of the children in the same room, Mother used drugs in front of the children, and Mother left children with inappropriate caregivers, one of whom overdosed. Pet'r's Ex . 3; Appellant's App. Vol. II at 48. On June 14, 2017, police were dispatched to Mother's home on reports of domestic violence, and she again was uncooperative and untruthful with officers. A.R. and H.R. were removed from Mother's home, and on June 15, 2017, DCS filed a CHINS petition as to A.R. and H.R., alleging that Mother failed to provide them with a safe, stable, and appropriate living environment free from domestic violence and substance abuse and that the children were not attending school. Appellant's App. Vol. II at 45. As to Father, the Petition alleged, "[Father] ... has not successfully demonstrated an ability and willingness to appropriately parent the children, and/or they are unable to ensure the children's safety and well being while in the care and custody of [Mother] as he is in North Carolina." Id.

[8] The intake report reflected that a DCS family case manager ("FCM") had contacted Father, who told her that he would like A.R. and H.R. to be placed with him. Id. at 50. Father was advised of the upcoming Indiana court date and said he would attempt to be present. Another FCM from Indiana had spoken with the North Carolina social worker Phillips, who stated that there were "no immediate concerns" with Father, that he was "actively engaged" in services, he completed a substance abuse assessment, but "was not able to produce a urine sample" for his most recent screen, but that NCDSS "plans to follow up with [Father] to complete a hair follicle test and urine drug screen." Id. Phillips said that if there were no concerns with those drug tests results, North Carolina "does not have any immediate concerns with the children returning to [Father's] care so long as he continues to abide by the court order which requires his contact be supervised." Id. at 51. The juvenile court continued the initial hearing, placed A.R. and H.R. in foster care, and appointed court-appointed special advocate Greg Huff ("CASA Huff"). The juvenile court also appointed a guardian ad litem ("GAL"). Id. at 61-63.

[9] Father was present at the June 29, 2017 continued initial hearing, and he was present by telephone at the July 6, 2017 pretrial hearing. At the pretrial, DCS reported that A.R. and H.R. "would like to live with" Father and that, according to NCDSS (1) Father and his girlfriend are appropriate with the children, (2) Father was participating in services, and (3) the North Carolina CHINS case "will be closing soon." Id. at 84-90. Father was also present at the next pretrial, on July 20, 2017. DCS objected to Father having temporary trial visitation ("TTV") with A.R. and H.R., noting that there was still an open CHINS case in North Carolina and that DCS would like to have an ICPC to be completed. The GAL requested that any ICPC be completed soon so that A.R. and H.R. "can be placed on TTV with Father as soon as possible." Id. at 92. The juvenile court denied Father's request for TTV at that time.

[10] A fact-finding hearing began on July 27, 2017, and it continued for two subsequent evidentiary hearings, on October 11 and November 30, 2017. Father was present for all three hearings. At the July 2017 hearing, Father's counsel requested placement of A.R. and H.R. with Father, stating that North Carolina had found Father's residence to be appropriate for the other three siblings that were living with Father. Counsel for DCS objected to immediate placement with Father, stating that at a mediation that had taken place a week prior, Father had tested positive for oxycodone, and that "I'm not sure if North Carolina knows that or not.... I'm kind of questioning whether they have all the information they need to make [a] determination as to whether father's home is safe or not." Tr. Vol. II at 10. Father's counsel responded that Father took a screen "today," and it was "clean" and that Father and his counsel did not receive a copy of a "dirty screen" and requested a copy. Id. at 10-11. The juvenile court denied Father's request for immediate placement on TTV. The juvenile court stated, "I'm still worried a little bit about [F]ather. I'm glad the kids want to see [him], so that's a step in the right direction[,]" but "[u]ntil I'm confident that there's an appropriate place I'm not willing to order any changes[.]" Id. at 11. Father later filed a motion requesting that the North Carolina FCM, Rebecca Johnson ("NC FCM Johnson"), be permitted to testify telephonically, which request the juvenile court granted.

[11] Between the July 2017 hearing October 2017 fact-finding hearing, the North Carolina juvenile court issued a Review Order on September 28, 2017 ("September 2017 Review Order"). In it, the court recognized that Father had attended four Strong Fathers classes, in a twenty-week program, with Father reporting that he missed some weeks due to traveling to Indiana for court hearings, and the court expected Father "to attend the remaining weeks without further absences." Pet'r's Ex . 4. It also recognized that Father had completed a comprehensive clinical assessment, which recommended participation in a substance abuse group and for Father to attend Narcotics Anonymous. The assigned social worker would be working with Father and his girlfriend to arrange in-home therapeutic services for the three children living with them. The GAL said that the three children living with Father were doing well, felt safe, wanted to stay there, and wanted all five siblings back together. Id. The NCDSS required that, if Mother were to return to North Carolina, her visits with the children be supervised, she report to NCDSS, and she complete an assessment and recommended treatment. The September 2017 Review Order concluded: (1) the three children living with Father "remain in the custody of [Mother] and in the home of [Father]"; (2) Father's visitation with the three children no longer be supervised; (3) Father complete the programs and services and "remain drug free," (4) Father work with NCDSS to enroll the three children living with him in therapeutic services, (5) Mother comply with the Indiana juvenile court's order and, if she returns to North Carolina, she complete an assessment and services, and (6) a copy of the September 2017 Review Order be sent to the Indiana juvenile court "as soon as executed." Id.

[12] Thereafter, at the October 11, 2017 fact-finding hearing in Indiana, Father and his girlfriend, Bethany Byars ("Byars"), with whom Father lived, were present. At the beginning of the hearing, the juvenile court stated that it had just been advised that Father had "open warrants" from "other courts," and Father was taken into custody at that time. Tr. Vol. II at 14;

Appellant's App. Vol. II at 125-27. Counsel for Father had not been aware of the existence of the open warrants. Before the start of evidence, Mother admitted that A.R. and H.R. were CHINS, stating, "[Mother] would benefit from services in order to maintain sobriety. Therefore, coercive intervention of the Court is necessary." Id. at 16-17. Thereafter, the juvenile court proceeded with fact-finding as to Father, and DCS first called Lauren Turley ("Turley"), an assessment worker with DCS.

[13] Turley stated that, in May 2017, DCS filed a CHINS petition as to A.R. and H.R., in response to allegations of lack of supervision, not attending school, concerns with Mother abusing substances, and A.R. having an inappropriate physical relationship with someone older than her. Turley had trouble locating Mother and when she did locate her, Mother would not let Turley speak to A.R. and H.R., requiring DCS to file a motion to compel. In the course of her investigation, Turley spoke to NCDSS after learning from Mother that there was an open CHINS case in North Carolina. However, Turley testified that she never looked at the petition and did not have information as to why the case was opened. After A.R. and H.R. were removed from Mother's care, Turley spoke with Father, to advise him about "the situation" that was going on with A.R. and H.R. Tr. Vol. II at 23. Father explained to Turley that he was in North Carolina and, as to whether he was satisfied with A.R. and H.R.'s being in Mother's care, he told Turley that "[h]e wanted the children in his care." Id. at 25. In their conversation, Father told Turley that he was not sure if he would have transportation to Indiana because he relied on his mother for transportation and, he shared, that he relied on her "for supervising his contact with his children." Id. at 23. Turley did not recall being told or learning why visitation was supervised. Turley said the CHINS filed against Mother was later substantiated, and A.R. and H.R. were placed in foster care, instead of with Father, because "[h]e was not able to come to Indianapolis so that we could get more information and determine his stability and safety." Id. at 26. She further explained, "With the history that I was aware of for Indianapolis there were concerns for substance use and domestic violence in the past, but I wasn't able to speak with [Father] and meet with him to fully access [sic] those things." Id. at 28.

[14] DCS next called to testify Crystal Heard ("Heard"), who was a home-based case manager and a visitation facilitator in Indiana. DCS referred the family to her in June 2017. As to Father, she observed three or four visits with A.R. and H.R. while he was in Indianapolis. She said that "[t]he girls are very excited to see their father" and on the way to the visits say that "they can't wait to see him." Id. at 32-33. The girls stated to Heard that they "can't wait for this to be over" "because they want to go back with their dad[.]" Id. at 33. Heard described that, in her observations, Father seemed like "a concerned father," he appropriately addressed behaviors, and had healthy conversations with them. Id. at 36. When asked if Father ever said anything or acted in a way to give her worry about his judgment or ability to parent, Heard said "No." Id. She likewise said that she had no safety concerns regarding his ability to "tak[e] care of the kids." Id. Heard acknowledged that Father drove nine hours each time to get to Indianapolis for court hearings and visitations. Heard testified that, in her opinion, placing A.R. and H.R. with Father was in their best interests. Id. at 38.

[15] Heard did notice that Father was nervous and shaky during one or more visitations, which she indicated gave her some concern. Id. at 33-34. Upon DCS questioning, Heard acknowledged that she had never been to Father's North Carolina home and could not testify if it was appropriate, and she was not fully aware of the services in which Father was participating in North Carolina, but recalled that he was in a father's program and that drug screens were included in a North Carolina order.

[16] Korinne Fox-Sibanda ("Fox-Sibanda"), a home-based therapist and visitation supervisor in Indiana, testified that her only contact was with Mother and A.R. Fox-Sibanda testified that, even if A.R. and H.R. were placed with Father, that she would recommend that A.R. have continued therapy due to traumas. Father's counsel, on cross-examination, asked Fox-Sibanda, "Are you aware that [NCDSS] arranged individual therapy for [A.R.] down there?" and she replied that she was not aware but said it would be beneficial, adding that family therapy with Father also would be beneficial. Id. at 43-44.

[17] Next to testify at the October 11 hearing was FCM Michelle Johnson ("FCM Johnson"), who began involvement with the family in June 2017. She said that she learned from Father that "they do have an open case in North Carolina" and that his relationship with Mother is "not good" and that he had filed for dissolution. Id. at 48; 53. When asked if she knew what services Father was participating in, FCM Johnson said, "I believe he mentioned something about a Father Engagement program and I believe something related to substance abuse." Id. DCS counsel inquired further about drug use, either on his own or with Mother, and FCM Johnson said, "During some of the telephone conversations and in-person contact that I had with [Father] ... he indicated that they did do drugs here in Indiana with [Mother] and their friends, but he didn't identify what substance they were using." Id. at 51. FCM Johnson testified that referrals had been made as to Mother for home-based therapy, home-based case management, supervised visits, therapeutic visits, a substance abuse evaluation, and random screens, but, as to Father, only random screens when he was in town had been recommended. FCM Johnson did not recall seeing or receiving any documents concerning custody of A.R. and H.R. Id. at 53.

[18] FMC Johnson recalled that she had spoken to the case manager in North Carolina four to six times, and she was informed about services in which Father had been participating. FCM Johnson learned that, initially, Father had visitations supervised by his mother, "but ended up with the children in his care and his mother is no longer a party as to supervising the visits." Id. at 55-56. As to services, she was told that he was in a father's program and had random drug screens, noting that "recently I believe that they indicated they were trying to get him to do a screen but he didn't screen when they asked him to, but other than that he's engaged in the services." Id. at 60. Father told FCM Johnson that "he was screening until his job took him out of county or something of that nature and it was kind of difficult for him to screen." Id. at 64. FCM Johnson stated that, if Father were ordered to participate in screens, that she would "want to see that those screens are happening." Id. at 63. FCM Johnson's last conversation with the FCM in North Carolina was that Father was "actively participating" in "[a]ll the services." Id. at 66. Father told FCM Johnson that he is willing to participate in any substance abuse treatment. Id. at 64.

[19] The information that FCM Johnson learned from the North Carolina FCM about Father's "housing environment" is that it was "appropriate" and that Father was "working and he can meet the needs of the children." Id. at 56. During FCM Johnson's testimony, certified copies of court documents from North Carolina were admitted without objection. Id. at 54 (admitting Pet'r's Exs . 1-4). Counsel for Father asked FCM Johnson, "Do you have any safety concerns today if [A.R. and H.R.] are placed with father in North Carolina?" and she responded, "No. Not based off the information from North Carolina, no." Id. at 56. However, FCM Johnson stated that seeing Father be arrested at the start of the day's hearing did give her some concern about the children's safety, explaining "If he's going to be an absent parent ... obviously it's going to be a safety concern." Id. at 62.

[20] There was testimony outlining the multiple placements that A.R. has been in throughout the proceedings, and counsel asked, "[Y]ou have no safety concerns placing her with [F]ather?" and she replied, "No." Id. at 58; see also id . at 60 (stating that she had no safety concerns for A.R. and H.R. in Father's care as long as Mother was not living with Father). She acknowledged that if A.R. were returned to North Carolina, that she would return to a prior school that she attended and that it would be a familiar environment for her. Id. FCM Johnson had briefly observed parenting time between Father and A.R. and H.R., and her impression was "[t]hat the girls love their father and they wanted to be with him[,]" noting that in her monthly one-on-one visits with the girls "that's usually the conversation when I see them[,] you know that's what they know, that's where they want to be and they just say it all the time that they want to be with their father." Id. at 61-62.

[21] Because Father had been arrested at the start of the October 11 hearing, the juvenile court offered to Father's counsel to schedule an additional hearing so that Father could testify, and the hearing was reconvened on November 30, 2017. On November 15, 2017, DCS filed a Request for Judges to Communicate pursuant to the Uniform Child Custody and Jurisdiction Act ("UCCJA"), stating that temporary emergency jurisdiction is provided pursuant to Section 204 of the UCCJA and that under that same section the judges "must" communicate. Appellant's App. Vol. II at 131-34.

[22] At the start of the November 30, 2017 fact-finding hearing, the juvenile court stated that it had contacted the North Carolina judge to schedule a conference under UCCJA, but that no conference had yet been scheduled. Father's counsel called Father to testify. Father stated that this was his seventh time coming to Indiana on the matter, stating that his purpose was "trying to get my two children back." Id. at 85, 88. Father drove to Indiana on each occasion. Father testified that he was still married to Mother, but had filed for dissolution on three occasions and hoped to "be completely done with the situation." Id. at 87. Father was currently living in North Carolina with Byars, his three children, and one of hers. Father said that North Carolina filed the Motion to Re-Open the closed CHINS case because, initially, he had supervised visitation but when the three children came back to live with him, North Carolina needed to "go back and remove the sanctions." Id. at 89. He said that NCDSS had been to his three-bedroom residence. Father stated that, as part of court-ordered services, Father attended drug treatment class twice a week, but that he had just recently started it. Id. at 89-90. He had also completed a Strong Fathers class in September 2017, which he described as a domestic violence class that taught skills with how to deal with children on different age levels. Father testified that he and Byars were both employed, and they were current on rent. Father stated that a family therapist "comes out ... two to three times a week." Id. at 92. Father said that A.R. and H.R. love him and also Byars, and "I think that they need to be back with their family, with their siblings that I have in North Carolina, and I just think that it would be a better life in North Carolina where their other brother and sisters are and with me and [Byars] instead of being here where they really have nobody." Id. at 95.

[23] On cross-examination, Father was asked why his parenting time was supervised and why the CHINS case was re-opened. He explained that it was supervised because "I ...was not finishing my classes and not going to class like I was supposed to." Id. at 99. The case was re-opened as to the three children living with him, so that visits were no longer required to be supervised.

[24] DCS called the current foster parent ("Foster Parent") of A.R. She testified that A.R. had lived with her for about a month, that A.R. received home-based and other therapy, and that she was currently suspended from school due to behavior issues, but would be going back in a couple of days. Foster Mother said "Her behavior has been okay. She's just a little home sick." Id. at 102. By home sick, Foster Mother explained, "She talks all day about being with dad, being with dad, dad. So she - I feel like that she has a lot of confidence in her dad and she really loves her dad." Id. at 104.

[25] Counsel for DCS presented closing argument that the open CHINS case in North Carolina only covered the three children that were with Father, that A.R. has issues and needs therapy, and that DCS is concerned "that she continue to receive assistance and services.... We want to be sure that ... the children will be safe in his care." Id. at 105. The GAL stated to the juvenile court that the girls have said from the beginning that they want to be with Father and no one else, that A.R. would be much better back with her siblings, that "this has been open for way to[o] long[,]" and "I think that they both need to go back to [F]ather in North Carolina if at all possible as soon as possible." Id. at 105. The juvenile court took the matter under advisement.

[26] On February 5, 2018, the juvenile court issued an order adjudicating A.R. and H.R. to be CHINS ("the CHINS Order"). The CHINS order found, in part:

20. [Father's] supervised parenting time sessions with [A.R. and H.R.] has been positive.
21. [Father] is currently engaged in drug treatment in North Carolina. This program meets twice a week. [Father] began this service just prior to the [Indiana] November 30, 2017 [fact-finding] hearing.
22. [Father] is engaged in a Strong Father's program in North Carolina.
24. ...The children's current custodial parent is [Mother].... Pursuant to the last known order dated July 15, 2016, [Father's] parenting time with [A.R. and H.R.] is ordered to be strictly supervised. The original concern of the [NCDSS] regarding [Father's] drug use has not been fully addressed as [he] only recently started substance abuse treatment.
25. [A.R. and H.R.] need care, treatment, or rehabilitation that the children are not receiving; and are unlikely to be provided or accepted without the coercive intervention of the Court. Despite being recommended to engage in substance abuse treatment in June of 2017 and presumably being ordered to engage in this treatment prior to the closure of the children's matter in July of 2016, [Father] did not begin the substance abuse treatment until just prior to the November 30, 2017 hearing. [Father] indicated that he completed the Strong Father's program, on September 23, 2017. However, the Court does not find this testimony to be reliable as the findings of the September 19, 2017 order [North Carolina juvenile court] indicate that [Father] had completed only four of the 20-week program as of August 2, 2017. Therefore, [Father] would not have been slated to complete the program until the end of December. As [Father] did not engage in domestic violence and substance abuse treatment in a timely manner under the previous child welfare matter, the Court finds that this Court's intervention is necessary to ensure that [Father] engages in and completes any other additional services.

Id. at 154-55. The juvenile court continued,

[Father] has been involved in past child welfare matters since 2015 and only recently began services to address substance abuse and domestic violence.
Should [Father] return to North Carolina with the children, [Mother] has the means and the legal right to travel to North Carolina to retrieve them. Should this occur, the children are likely to return to the exact situation that they were in when this cause of action was filed[.]
[A.R. and H.R.] need a parent who is stable, sober and able to provide a healthy environment. Neither [Mother] nor [Father] is this individual at this time.
[T]he Court finds that the children are in need of services pursuant to Indiana Code [§] 31-34-1-1 as it pertains to [Father].

Id. at 155.

[27] On February 22, 2018, the juvenile court held a dispositional hearing. Father, by counsel, asked the juvenile court to reconsider the CHINS adjudication as it pertains to Father, advised the court that Father had petitioned for custody of the five children in North Carolina, and requested increased parenting time and temporary trial visitation. The next day, the juvenile court issued a dispositional order, which, among other things, continued the temporary placement of A.R. and H.R. in foster care. Id. at 35. Father now appeals.

Discussion and Decision

I. Jurisdiction under UCCJA

[28] Father argues on appeal that the Indiana juvenile court did not have jurisdiction to enter a CHINS adjudication or disposition. In determining whether a trial court has improperly exercised jurisdiction under UCCJA, we apply an abuse of discretion standard. In re Paternity of R.A.F. , 766 N.E.2d 718, 723 (Ind. Ct. App. 2002), trans. denied. An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court or if the court has misinterpreted the law. Id.

[29] The UCCJA, Indiana Code section 31-21-5-1(a)(1)et. seq ., is a procedural framework to avoid having courts from different states issuing contradictory child custody orders. The UCCJA is the exclusive method of determining the subject matter jurisdiction of a court in a custody dispute with an interstate dimension. R.A.F. , 766 N.E.2d at 723. "Under the UCCJA, the court which first enters a custody decree on a matter gains exclusive jurisdiction only until the child and all parties have left the state." Id. Under that proposition, North Carolina had exclusive jurisdiction in this case because it awarded custody to Mother and retained jurisdiction until the children and all parties left the state, and, here, Father and three children still resided in North Carolina. See Pet'r's Exs . 1, 2 (July Review Order stating that North Carolina "retains jurisdiction in this matter until terminated by order of the Court" or until the children reach age of majority). Id. Although a CHINS case is not a custody dispute per se, we have held that when considering a CHINS case, a juvenile court must exercise its jurisdiction within the framework and policy considerations of the UCCJA. R.A.F. , 766 N.E.2d at 724-25 (citing and discussing In the Matter of E.H. , 612 N.E.2d 174 (Ind. Ct. App. 1993), opinion adopted , 624 N.E.2d 471 (Ind. 1993) ).

[30] In E.H ., this court "considered the application of the UCCJA to an Indiana court's exercise of jurisdiction pursuant to our CHINS statute." R.A.F ., 766 N.E.2d at 724-25. In E.H. , the mother and father lived in Texas and were the parents of two children. Their marriage was dissolved in Texas, with primary physical custody awarded to the mother, and she moved with the two children to Indiana. E.H ., 612 N.E.2d at 176-77. Following a visitation with father in Indiana, the mother suspected that he had sexually abused them. Id. at 177. A CHINS petition was filed in Indiana, and the juvenile court found that the children were CHINS and entered orders for evaluation and therapy, and eventually terminated Father's parental rights. Id. at 180-81. Father appealed, arguing that the Indiana CHINS court lacked jurisdiction, and a divided court of appeals determined that the Indiana CHINS court had jurisdiction to act, although ultimately reversed the CHINS determination and dispositional order and the termination of father's parental rights because of lack of evidentiary support. Id. at 189-90 (Barteau, J., concurring in result; Chezem, J., dissenting).

[31] On transfer, our Supreme Court adopted this court's majority opinion in E.H. , which recognized that "when confronted with existence of a valid foreign custody-visitation determination, the CHINS court must proceed under the provisions of the UCCJA" and that, pursuant to a then-existing emergency provision in the UCCJA, the Indiana CHINS court was allowed to exercise temporary jurisdiction "for the duration of the emergency[,]"

but should terminate its jurisdiction after the emergency has passed. Id. at 184-86.

[32] This court similarly considered the relationship between the CHINS and UCCJA statutes in T.Y.T. v. Allen County Division of Family and Children , 714 N.E.2d 752 (Ind. Ct. App. 1999), where the mother appealed a CHINS determination. In T.Y.T ., the child was born in California to the mother, who was soon arrested for underage drinking. The child was removed from her care and placed with a man identified by mother as being the father. Id. at 754. When the child was around one year old, the father took the child to Indiana, left child with a child care provider, and did not return. At that time, the mother was living in Illinois with a boyfriend. A CHINS petition was filed, mother did not appear for hearings, and the child was determined to be a CHINS and placed in foster care. Id. The mother appealed, arguing among other things that the Indiana CHINS court did not have jurisdiction. Id. at 754-55. The T.Y.T . court recognized the following:

A juvenile court has original jurisdiction over CHINS proceedings, pursuant to Ind. Code Ann. § 31-30-1-1 [ ]. The jurisdiction conferred on courts in such cases enables the State to respond to emergency situations involving children who are not likely to be helped without court intervention. Matter of E.H ., 612 N.E.2d at 174. In such cases, jurisdiction under the CHINS statutes is temporary, lasting only for the duration of the emergency. When the emergency passes, the temporary jurisdiction conferred by the CHINS statutes ends. Id.

Id. at 755. The T.Y.T. court rejected the mother's claim that the CHINS court did not have jurisdiction to preside over a CHINS proceeding, stating "the court has jurisdiction to address an emergency, which certainly includes where the child should stay until the matter is resolved." Id.

[33] Currently, the UCCJA allows for a court to exercise emergency jurisdiction pursuant to Indiana Code section 31-31-5-4, which provides:

(a) An Indiana court has temporary emergency jurisdiction if the child is present in Indiana and:
(1) the child has been abandoned; or
(2) it is necessary in an emergency to protect the child because:
(A) the child;
(B) the child's sibling; or
(C) the child's parent;
is subjected to or threatened with mistreatment or abuse.

Ind. Code § 31-21-5-4(a). If an Indiana court that is exercising jurisdiction under that section is informed that a child custody proceeding has been commenced in or a determination has been made by a court of another state, the Indiana court shall immediately communicate with the court of the other state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order. Ind. Code § 31-21-5-4(g).

[34] Here, the Indiana juvenile court was faced with a situation where Mother took A.R. and H.R. from North Carolina and brought them to Indiana. DCS removed them from her home, and the Indiana CHINS petition was filed to protect A.R. and H.R. because Mother demonstrated an inability to care for them. The verified CHINS petition and the preliminary inquiry revealed that Mother appeared to be using drugs, had exposed the Children to violence, was avoiding DCS, hiding H.R., and claiming she would be leaving for North Carolina soon. Father and Mother had domestic violence issues from when they lived together. At the time of removal, the most recent North Carolina order allowed only supervised visitation for Father, and A.R. and H.R. were placed in foster care. During the CHINS proceedings, Indiana DCS caseworkers were in contact with the North Carolina caseworkers with regard to the situation with Mother in Indiana and with regard to Father's status, home, and the re-opened CHINS case. At one point, the Indiana juvenile court made contact with the North Carolina court, but, according to the record before us, a conference between the two judges was never arranged or took place. When NCDSS learned of the situation in Indiana, it re-opened the 2014 North Carolina CHINS-type proceeding on the three children living with Father. However, it did not re-open the prior CHINS case as to A.R. and H.R., and, therefore, we note, there were not two courts in two states issuing competing orders regarding placement of these two children.

[35] We find that under the facts of this case, and pursuant to UCCJA and case law precedent, the juvenile court was not without jurisdiction to permit the filing of the CHINS petition and conduct CHINS proceedings.

II. CHINS Adjudication

[36] We next address Father's contention that the juvenile court's CHINS determination was not supported by the evidence. "[CHINS] cases aim to help families in crisis-to protect children, not punish parents." In re S.D ., 2 N.E.3d 1283, 1285 (Ind. 2014). The focus is on the best interests of the child and whether the child needs help that the parent will not be willing or able to provide. Id. As our Supreme Court has recognized, a CHINS adjudication may have long-lasting collateral consequences for the family, and thus, "[t]he intrusion of a CHINS judgment, then, must be reserved for families who cannot meet those needs without coercion." Id.

[37] When determining whether there is sufficient evidence to support a CHINS determination, we neither reweigh the evidence nor judge the credibility of the witnesses. Id. at 1287. We consider only the evidence that supports the juvenile court's decision and reasonable inferences drawn therefrom. Id. Where, as here, a juvenile court's order contains specific findings of fact and conclusions thereon, we engage in a two-tiered review. In re A.G. , 6 N.E.3d 952, 957 (Ind. Ct. App. 2014). First, we determine whether the evidence supports the findings, and then, we determine whether the findings support the judgment. Id. We reverse a CHINS determination only if it was clearly erroneous. In re D.J. , 68 N.E.3d 574, 578 (Ind. 2017). A decision is clearly erroneous if the record facts do not support the findings or if it applies the wrong legal standard to properly found facts. Id.

[38] A CHINS proceeding is civil in nature, so the State must prove by a preponderance of the evidence that a child is a CHINS as defined by the juvenile code. In re N.E. , 919 N.E.2d 102, 105 (Ind. 2017). Indiana Code section 31-34-1-1 provides that a child is a CHINS if, before the child becomes eighteen years of age:

(1) 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 the necessary food, clothing, shelter, medical care, education, or supervision; 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 of the court.

Thus, this statute requires "three basic elements: that the parent's actions or inactions have seriously endangered the child, that the child's needs are unmet, and ... that those needs are unlikely to be met without State coercion." In re S.D. , 2 N.E.3d at 1287. The third element guards against unwarranted State interference in family life, reserving that intrusion for families where parents lack the ability to provide for their children, not merely where they encounter difficulty in meeting a child's needs. In re D.J. , 68 N.E.3d at 580 (quotations omitted, emphasis in original). When determining CHINS status under section 31-34-1-1, particularly the "coercive intervention" element, courts should consider the family's condition not just when the case was filed, but also when it is heard. Id. "Doing so avoids punishing parents for past mistakes when they have already corrected them." Id. at 581.

[39] In the present case, Father contends that the juvenile court's order adjudicating A.R. and H.R. as CHINS was clearly erroneous and was not supported by sufficient evidence. In particular, Father challenges the following determinations:

[Father] has been involved in past child welfare matters since 2015 and only recently began services to address substance abuse and domestic violence issues. The court also stated that A.R. and H.R. need a parent who is stable, sober and able to provide a healthy environment. Neither [Mother] or [Father] is this individual at this time.

Appellant's Br . at 14; Appellant's App. Vol. II at 155. Father maintains, "There is no support for the finding that [Father] cannot provide a healthy environment and this finding is contradicted by the DCS's own witnesses who supported placing the children with their father." Appellant's Br . at 14. Father argues both that coercive intervention was not necessary and that the disposition did not place A.R. and H.R. in the least restrictive setting, which would have been with him. Id. at 13. We agree.

[40] In this case, there appears to be no dispute that Father loves A.R. and H.R. and that, from the start of the CHINS proceedings, Father has requested placement of them with him, and that he drove from North Carolina to Indiana on at least seven occasions for hearings. There is also no dispute that A.R. and H.R. love Father and have expressed to case workers, visitation supervisors, the GAL, and foster parents that they wish to be placed with Father. The inquiry is whether DCS presented sufficient evidence to establish that A.R. and H.R. were CHINS and whether disposition that directed continued foster care was warranted. Our Supreme Court has recently recognized that " '[n]ot every endangered child is a child in need of services,' and not every endangered child needs 'the State's parens patriae intrusion into the ordinarily private sphere of the family.' " In re D.J ., 68 N.E.3d at 580 (quoting In re S.D. , 2 N.E.3d at 1287 ).

[41] Here, when Mother and Father were living together in North Carolina, a CHINS-like petition was filed by NCDSS in September 2014, alleging abuse or neglect, substance abuse by parents, and domestic violence, and the children were in the care and control of NCDSS for some period in 2014 through sometime in 2016. Evidence was presented at a review hearing that, by May 2016, Father was employed, paid child support, visited regularly, was bonded with the children, but had failed some drug screens. The ensuing July 2016 Review Order awarded custody to Mother, directed that Father's visitation be supervised, and closed the CHINS matter.

[42] At or around the end of the school year in 2016, Mother left North Carolina with all five children, but returned with them to North Carolina not long after, and three of the five children went to live with Father. In or around April 2017, Mother returned to Indiana with A.R. and H.R. Because NCDSS received reports in May 2017 that, among other things, the children were not attending school, the NCDSS filed a petition in June 2017 to re-open the CHINS matter. NCDSS conducted an investigation of Father's residence and found no evidence of abuse or neglect, and social worker Phillips reported that Father had taken and passed all screens and had started attending a substance abuse group. NCDSS asked the North Carolina court to allow the three children to live with Father and to lift the order of supervised visitation.

[43] Meanwhile, in Indiana, DCS received reports about Mother's lack of care, and, eventually, DCS removed A.R. and H.R. from her home in June 2017 and filed the CHINS petition. The intake report filed with the juvenile court indicated that DCS had been in contact with North Carolina's social worker Phillips, who had "no immediate concerns" with Father and reported that Father was "actively participating" in services. Appellant's App. Vol. II at 51. The juvenile court placed A.R. and H.R. in foster care and appointed a CASA and GAL. At the pretrial hearing, DCS reported that, according to NCDSS, Father and his girlfriend, Byars, are appropriate with the children, that Father was participating in services, and that the North Carolina CHINS matter "will be closing soon." Id. at 88. The GAL in Indiana opined that A.R. and H.R. be placed on TTV with Father "as soon as possible." Id. at 92. DCS objected to TTV due to the still-open CHINS proceeding in North Carolina.

[44] At the July 27, 2017 hearing, Father's counsel asked that A.R. and H.R be placed with Father, but counsel for DCS objected, stating that at a mediation that took place the week prior, Father had tested positive for oxycodone. Father's counsel was unaware of that screening, and no evidence of it was admitted into evidence. Father took and passed a drug screen on July 27, 2017. However, the juvenile court indicated that it was "still worried a little bit about [F]ather" and continued the children in foster placement. Tr. Vol. II at 11.

[45] After that July hearing, and before the next Indiana fact-finding hearing, the North Carolina juvenile court issued the September 2017 Review Order stating that Father had attended four of twenty Strong Fathers classes, with Father explaining that he had missed some classes due to being in Indiana for hearings. In the September 2017 Review Order, the North Carolina juvenile court directed Father to attend the remaining weeks without further absences. It also reflected that Father had completed a clinical assessment and was recommended to participate in a substance abuse group and Narcotics Anonymous. The assigned social worker said that she would be working with Father and Byars to arrange therapeutic services for the three children. The North Carolina GAL said that the three children living with Father were doing well, felt safe, and wanted all five siblings to be back together. The September 2017 Review Order directed that the three children living with Father continue to do so, lifted the requirement that Father's visitation with the three children be supervised, and ordered that a copy of the order be sent to the Indiana juvenile court.

[46] When Father appeared at the October 11, 2017 CHINS fact-finding hearing in Indiana, he was taken into custody on open warrants, although there was no information on the record discussing the subject matter or basis of the warrants. At the hearing, DCS assessment worker Turley testified that after A.R. and H.R. were removed from Mother's home, she spoke with Father to advise him about the situation with Mother. Turley explained that A.R. and H.R. were initially placed in foster care because "[w]ith the history that I was aware of for Indianapolis there were concerns for substance abuse and domestic violence in the past[,]" and Father was not able to immediately come to Indianapolis "so that we could get more information and determine his stability and safety." Tr. Vol. II at 26, 28. The home-based case manager and visitation facilitator, Heard, said that A.R. and H.R. were consistently excited to see their Father, and that, in Heard's observations of Father, he seemed like "a concerned Father" who appropriately addressed behaviors and had healthy conversations with A.R. and H.R. Id. at 36. She further stated that Father did not act in a way to give her worry about his judgment or ability to parent and that she had no safety concerns regarding his ability to take care of them. Id.

[47] FCM Johnson stated that during some in-person contact with Father, he shared with her that he and Mother in the past did drugs in Indiana with their friends, but nothing more specific. FCM Johnson had spoken with the North Carolina FCM four to six times during the course of the proceedings and, according to their most recent conversation, she learned that Father was "actively participating" in "[a]ll the services." Id. at 66. The North Carolina FCM also told FCM Johnson that Father's housing environment was appropriate and that Father was employed and can "meet the needs of [A.R. and H.R]." Id. at 56. Father told FCM Johnson that he is willing to participate in any substance abuse treatment. When FCM Johnson was asked if she had any safety concerns about placing A.R. and H.R. with Father, she replied that, based upon the information she had received from North Carolina, she did not have any safety concerns, so long as Mother was not living with Father. Id. at 56, 58, 60. However, FCM Johnson did have concern about Father being arrested at the start of the hearing, saying, "If he's going to be an absent parent ... obviously it's going to be a safety concern." Id. at 62. FCM Johnson stated that if A.R. and H.R. were returned to North Carolina, A.R. would return to a prior school that she had attended and to a familiar environment.

[48] At the November 30, 2017 fact-finding hearing, Father testified that NCDSS had been to his residence and approved of it, that as part of court-ordered services he was attending a drug treatment class twice a week, although he had just recently started attending. Id. at 89-90. Father testified that he had completed a Strong Father's program in September 2017, although the Indiana CHINS court found that this assertion was not "reliable" because, according to North Carolina's September 2017 Review Order, Father had completed four of the 20-week program as of August 2, 2017, and therefore, Father would not have been slated to complete the program until the end of December that year. Appellant's App. Vol. II at 155. Father testified that he and Byars were both employed, current on rent, and that a family therapist comes to the home two to three times per week.

[49] The current foster mother for A.R. testified that A.R. had been experiencing behavior issues and was currently suspended from school, but would be returning in a matter of days. The foster mother indicated that A.R. was "home sick" and "talks all day about being with dad[.]" Tr. Vol. II at 102, 104. The GAL shared, in closing remarks, her opinion that "this has been open for way to[o] long" and that A.R. and H.R. "need to go back" to Father's residence "as soon as possible." Id. at 105.

[50] We find that it was appropriate for DCS to file the CHINS petition and for the juvenile court to hold CHINS proceedings for some period of time to find temporary placement for A.R. and H.R. while gaining information about the North Carolina proceedings and that state's assessment of Father and his home. However, we cannot say that the State proved by a preponderance of the evidence that A.R. and H.R. needed care or treatment that was unlikely to be provided or accepted without the juvenile court's coercive intervention. Although Father has some history of making poor choices involving substance abuse and domestic violence with Mother, the record reflects that he "has made every effort to remedy the situation and become a suitable caregiver[,]" and at the time of the fact-finding hearings, Father was actively participating in all services, his home was approved by NCDSS, and there were no specified concerns for his ability to care for the children. Matter of B.L.P. , 91 N.E.3d 625, 635 (Ind. Ct. App. 2018) (reversing termination of a father's parental rights). Accordingly, we reverse the juvenile court's CHINS determination.

[51] Reversed.

[52] Vaidik, C.J., and Riley, J., concur.

      The other three children were each born in North Carolina, in 2006, 2007, and 2010.

      DCS stated at the July 20 pretrial conference that North Carolina had filed a CHINS petition against Father for substance abuse, but DCS later filed a report with the juvenile court clarifying that the pleading filed in North Carolina was actually the Petition to Reopen and Review, which reported to that court that three children were living with Father because of housing instability with Mother and the children "not knowing where they would sleep at night." Appellant's App. Vol. II at 104.

      ICPC refers to Interstate Compact on the Placement of Children. This court has held that the ICPC "does not apply to placement with an out-of-state parent[,]" and, pursuant to statute, it only applies to the placement of a child in foster care or as a preliminary to a possible adoption. Matter of B.L.P. , 91 N.E.3d 625, 630-31 (Ind. Ct. App. 2018) (expressing concern that "notwithstanding this unambiguous holding, apparently DCS is still requesting - and trial courts are still granting - ICPC evaluations for out-of-state parents.").

      We note that no evidence was presented at the July 27, 2018 hearing; it was brief and consisted only of argument by counsel. Evidence was presented at the two subsequent hearings.

      Throughout the course of the CHINS proceedings, A.R. was moved at least five times, from foster care, to emergency shelter placement at YOC due to reports of sexual contact that occurred in the foster home, to another placement through the Courage Center/Children's Bureau, to another placement through Seeds of Life, to another foster care placement in Martinsville, Indiana.

      The juvenile court asked counsel for DCS and for Father whether each desired to be present for the judges' telephonic conference, and both of them waived their presence, as did the guardian ad litem. Tr. Vol. II at 78, 81.

      On January 29, 2018, Father filed a motion requesting placement with him, asserting that ICPC does not apply to his situation because he is the biological father. Appellant's App. Vol. II at 148.

      The provision allowed a state to make a custody determination when the child is physically present in the state, and "it is necessary in an emergency to protect the child because he has been subjected or threatened with mistreatment or abuse or is otherwise neglected or dependent." In re Paternity of R.A.F ., 766 N.E.2d 718, 725 (Ind. Ct. App. 2002) (citing Ind. Code § 31-1-11.6-3(a)(3)(B) ), trans. denied .


author: Vaidik, Chief Judge.

text:
    Emilio Alfredo Morales PEREZ, Appellant-Petitioner, v. Lindsey MOUNCE, Appellee-Respondent
    Court of Appeals Case No. 18A-DR-457
    Court of Appeals of Indiana.
    FILED September 4, 2018
    Attorney for Appellant: Oliver Younge, Younge Law Office, Indianapolis, Indiana
   Vaidik, Chief Judge.

Case Summary

[1] Emilio Alfredo Morales Perez ("Father") was denied parenting time with his daughter by Lindsey Mounce ("Mother"), and the trial court ordered that Father could make up "all missed parenting time." Father then asked the trial court to reduce his child-support obligation to reflect the parenting time that he missed and is now making up, but the trial court did not do so. Because awarding Father credit for the make-up parenting time would result in an impermissible double credit, we affirm the trial court in this and all other respects.

Facts and Procedural History

[2] During their marriage, Mother and Father had a daughter, M.M. ("Child"), born in January 2013. The parents divorced in November 2013. Because Father "had not had overnights with the child for a while and the child still nursed," the trial court "established physical custody in Mother, with Father having parenting time to be phased in to regular year round Indiana Parenting Time Guidelines ('IPTG') parenting time, including holidays per the IPTG ...." July 20, 2017 Order on Petitioner's Motions for Rule to Show Cause and Modification of Custody and Parenting Time, pp. 1-2 (trial court summarizing history of case). Father was also ordered to pay child support.

[3] In April 2017, Father filed a combined motion for rule to show cause and motion to modify custody and parenting time alleging that Mother "withholds parenting time at will and on a whim" and requesting "sole or joint legal and physical custody" of Child. April 28, 2017 Consolidated Verified Petition for Rule to Show Cause, and Motion to Modify Custody and Parenting Time, pp. 2, 4. After a hearing, the trial court issued an order in July 2017 providing that Father was to make up his missed parenting time with Child as follows:

18. Father shall make up all missed parenting time at days and times of his own choosing, as long as those dates are not provided at the "last minute" to Mother. Father may provide a calendar referencing the chosen dates for exercising make-up parenting time, in addition to his regular parenting time, and if so attached, shall be fully incorporated as part of this Order ...."

July 20, 2017 Order on Petitioner's Motions for Rule to Show Cause and Modification of Custody and Parenting Time, p. 3. Attached to the court's order was a calendar for 2017 and 2018 setting forth how Father planned to make up his missed parenting time, which amounted to 239 missed days from 2014 to 2017. Id. ; see also Tr. pp. 34-35.

[4] As for Father's request to modify custody and parenting time, the court found that "Father has not met the burden required for a modification of custody at this time ...." July 20, 2017 Order on Petitioner's Motions for Rule to Show Cause and Modification of Custody and Parenting Time Held, p. 4. However, the court admonished Mother that if she did not obey the court's order, it would consider modifying custody or parenting time as a sanction.

[5] About two weeks later, Father filed a motion to modify his child-support obligation because he and his fiancée just had a baby. Mother responded by filing a motion for rule to show cause, alleging that Father had failed to pay his portion of child-care expenses. At a September 19, 2017 hearing on the motions, the parents stipulated to some of the issues and said they were confident that they could resolve the remaining issues of child support and child care. They believed that they would have an agreement within ten days and would send a copy of the agreement to the court for approval.

[6] No agreement was reached. Instead, the parents engaged in a contentious discovery battle regarding Father's wages and employment contract. On October 19, 2017, Mother sent Father a second request for production of documents, specifically requesting all of Father's paystubs from May 2015 "through present" as well as his employment contract. Appellant's App. Vol. II p. 122. When Father did not timely respond, Mother's attorney sent Father's attorney multiple emails requesting copies of the documents. December 20, 2017 Motion to Compel Discovery, Exs. A-D (emails between attorneys). Although Father eventually responded to Mother's second request for production of documents, he only included his paystubs through September 2017, and he did not provide his employment contract. As a result, in late December 2017, Mother filed a motion to compel discovery asking the court to compel Father to provide his updated paystubs and employment contract. Attached to the motion were copies of the emails between Mother's attorney and Father's attorney regarding the disputed documents. On January 2, 2018, the trial court granted Mother's motion to compel and ordered Father to provide the documents within five days.

[7] A hearing on pending issues was held on January 16, 2018. Tr. pp. 4-5. Child had just turned five years old. The trial court opened the hearing by asking Father's attorney if Father had given his employment contract to Mother pursuant to its January 2 order to compel. Father's attorney said Father hadn't done so because of the nondisclosure agreement. The court rejected this argument and explained that Father had multiple options for how to comply with discovery without violating the nondisclosure agreement, including marking it "for attorney eyes only." Id. at 7. The court asked for a copy of Father's employment contract, which Father's attorney eventually turned over. The court then asked Father's attorney if Father had given all of his paystubs to Mother, and Father's attorney said yes. However, Mother's attorney interjected that the last paystub she had was from September 2017. Father was instructed to hand over his 2017 end-of-year paystub to see what his actual income was for the year. Although Father did not bring a copy of his end-of-year paystub to the hearing, he was able to retrieve it using his cell phone and showed it to Mother's attorney and the court.

[8] The attorneys and trial court then began calculating child support in court using the updated figures. The court asked the attorneys if they agreed on the number of Father's "overnights" with Child, but they did not agree. Id. at 29. Mother's attorney explained that she credited Father with "98 overnights" on her proposed child-support obligation worksheet because that is what Father was entitled to according to the trial court's previous orders, which hadn't been changed. Id. ; see also Ind. Parenting Time Guidelines § II(D); Ind. Child Support Guideline 6, cmt. Father's attorney, however, argued that Father should receive credit for his make-up parenting time. Mother's attorney acknowledged that Father was given make-up parenting time in the trial court's July 2017 order; however, she argued that Father "received that credit in those years even though he didn't have those overnights" and therefore Father "can't receive that credit twice." Id. at 30. Mother's attorney also pointed out that "once the make-up time is ... made up, there is no order for split custody or anything." Id. Father's attorney, who didn't dispute Mother's attorney's double-credit argument, argued that because Father was having Child in his home "approximately half of the time, and it's going to be that way ... throughout the rest of the year," "it's only fair that [Father] gets the credit for the time that he's actually ... having overnights with the child." Id. at 30-31. Father then took the stand and testified that over the past six months (which was after the trial court awarded him make-up parenting time) he was exercising three overnights per week plus four or five full weeks. Id. at 33. Father said his make-up parenting time would end sometime in "Q1 or Q2 of 2019." Id. at 35.

[9] At the end of the hearing, Mother asked the trial court to order Father to pay her attorney's fees related to the discovery dispute. Her attorney provided an affidavit with an itemized breakdown of her fees, which totaled $1750 and included services rendered from October 5, 2017, to January 9, 2018. The court asked Father's attorney if he wanted to cross examine Mother's attorney regarding her fees. Father's attorney declined: "Your Honor, I'm not going to cross [Mother's attorney] on her affidavits[.]" Id. at 48.

[10] After the hearing, the court issued an order requiring Father to pay $163 per week in child support with a credit for "96-100 overnights," Appellant's App. Vol. II p. 25, and requiring Father and/or Father's attorney to pay Mother's attorney $1750 in attorney's fees.

[11] Father now appeals.

Discussion and Decision

[12] We first note that Mother did not file an appellee's brief. When the appellee fails to submit a brief, we will not develop an argument on her behalf but, instead, we may reverse the trial court's judgment if the appellant's brief presents a case of prima facie error. GEICO Ins. Co. v. Graham , 14 N.E.3d 854, 857 (Ind. Ct. App. 2014).

I. Parenting-Time Credit

[13] Father first contends that the trial court should have given him a parenting-time credit for the actual parenting time he was exercising with Child when calculating his child-support obligation. Indiana Child Support Guideline 6 provides, "A credit should be awarded for the number of overnights each year that the child(ren) spend with the noncustodial parent." When reviewing a child-support order, we presume that the trial court's calculation of child support is valid and will set aside the order only if clearly erroneous. Bogner v. Bogner , 29 N.E.3d 733, 738 (Ind. 2015).

[14] Father argues that he should have been credited with all of the parenting time that he was exercising with Child, including the make-up parenting time, and not just 96-100 overnights. He points out that he "had at the least equal parenting time with Mother for the past six months, and would have that into 2019[.]" Appellant's Br. p. 12. Following the parents' divorce, Mother was awarded physical custody of Child, and Father was awarded "parenting time to be phased in to regular year round Indiana Parenting Time Guidelines ('IPTG') parenting time." Neither parenting time nor custody has since been modified in this case. See Tr. p. 36 (Father acknowledging on cross-examination at the January 2018 hearing that he had not been awarded "joint or 50/50" physical custody). However, as Mother's attorney explained at the January 2018 hearing, Father already received credit for the overnights that were withheld and are now being made up and that giving him further credit for those same overnights would result in a double credit. Father did not dispute this claim below or on appeal. Accordingly, we conclude that awarding Father credit for that time would result in him receiving an impermissible double credit.

[15] To the extent Father argues that he is entitled to credit for 156 overnights (because that is the number of overnights he claimed he was exercising before Mother started withholding parenting time from him in 2014) instead of 96-100 overnights, Appellant's Br. p. 12, there is simply no evidence in the record that he will be exercising that amount once he makes up his missed parenting time in 2019. And as Father conceded at the January 2018 hearing, he was awarded parenting time according to the guidelines-not more. Accordingly, the trial court did not err in giving Father a parenting-time credit of 96-100 overnights when calculating his child-support obligation.

II. Attorney's Fees

[16] Father makes multiple arguments for why he should not be responsible for paying Mother's attorney's fees related to the discovery dispute. First, he argues that the trial court failed to hold a hearing before it granted Mother's request for attorney's fees. See Ind. Trial Rule 37(A)(4) (explaining that if a motion to compel discovery is granted, the trial court, "after opportunity for hearing," shall order the party and/or attorney to pay to the moving party "the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust"). But the court did hold a hearing. The majority of the hour-long hearing on Father's motion to modify child support was a conversation between the court and Father's attorney regarding discovery, the court's order to compel, and whether Father had turned over the ordered documents. And Father himself acknowledges on appeal that the trial court listened to his attorney's " 'reason' for resisting compliance with discovery." Appellant's Br. p. 17. Although Father now claims that the court should have "allow[ed] for more testimony or evidence," id. , Father specifically declined the opportunity to question Mother's attorney about her fee affidavit and did not ask to present any evidence. We conclude that a hearing was held on this issue.

[17] Father's next argument is that he was "substantially justified" when he withheld a copy of his employment contract from Mother and did not provide updated paystubs. See Huber v. Montgomery Cty. Sheriff , 940 N.E.2d 1182, 1186 (Ind. Ct. App. 2010) ("A person is 'substantially justified' ... in resisting discovery, for purposes of avoiding sanctions provided by Trial Rule 37(A)(4), if reasonable persons could conclude that a genuine issue existed as to whether a person was bound to comply with the requested discovery."). During the hearing, Father's attorney argued that Father was substantially justified in his actions because the employment contract was subject to a nondisclosure agreement. The court did not accept this argument, noting that Father's attorney could have filed the employment contract with the court and marked it "for attorney eyes only" or sought a protective order to limit who could see it. Tr. p. 7; see also Ind. Trial Rule 26(C)(2), (7) (providing that a court may order that "discovery may be had only on specified terms and conditions" and that a trade secret or other confidential commercial information "be disclosed only in a designated way"). Instead, Father chose to simply withhold the document. As for the paystubs, although Father claims that he provided "many" of them, Appellant's Br. p. 18, he did not provide updated ones despite Mother's request for updated ones and the trial court's order that he provide them, Tr. p. 18 (trial court: "Why didn't you ever provide those most recent paystubs until right now in open Court with me in the robe using county resources to force you to do that ... even though I ordered you to do it at least, I think, twice?"). Accordingly, Father was not substantially justified in his actions.

[18] Father's final argument is that, even if an award of attorney's fees was justified, "the actual amount ordered to be paid was erroneous" because it included fees "unrelated to [Mother's] expenses in making her motion to compel." Appellant's Br. p. 20. But Father did not make this argument to the trial court. When given the opportunity to question Mother's attorney about her fees, Father declined. Instead, Father's attorney made a generalized argument to the court as to why Father was substantially justified in his actions, and therefore no attorney's fees should be awarded. See Tr. pp. 50-53. Accordingly, Father has waived this argument on appeal. Bessolo v. Rosario , 966 N.E.2d 725, 734 (Ind. Ct. App. 2012) (concluding that mother's attorney-fee argument was waived because it was raised for the first time on appeal), trans. denied .

[19] Affirmed.

Riley, J., and Kirsch, J., concur.

      Father has not provided many documents that would have aided us in our review, including the November 2013 decree of dissolution, the trial court's January 2014 order granting Mother's motion to correct error (which modified physical custody as explained above), and the original child-support obligation worksheet. Although we were able to access the more recent trial-court documents in Odyssey, the older documents are not available in Odyssey.