Kathleen Strohbach v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 26, 2018
• Docket: 18A-MI-1018
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Sep 26 2018, 8:02 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jesse R. Harper Curtis T. Hill, Jr. Harper & Harper, LLC Attorney General of Indiana Valparaiso, Indiana Robert J. Henke Patricia C. McMath Deputies Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kathleen Strohbach, September 26, 2018 Appellant-Petitioner, Court of Appeals Case No. 18A-MI-1018 v. Appeal from the Porter Circuit Court Indiana Department of Child The Honorable Mary R. Harper, Services, Judge Appellee-Respondent. The Honorable Gwenn R. Rinkenberger, Magistrate The Honorable Stephanie Wicke, Judge Pro Tem Trial Court Cause No. 64C01-1707-MI-7313

Sharpnack, Senior Judge. Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018 Page 1 of 13 Statement of the Case [1] In November 2010, the Department of Child Services of Porter County (DCS)

recorded a substantiated report of child neglect by Kathleen Strohbach. In July

2017, Strohbach filed in the Porter Circuit Court a petition to expunge the

substantiated report. The court denied her petition, and she appeals. We

reverse and remand with instructions to the court to grant the petition and to

order expungement of the substantiated report.

Issue [2] Strohbach presents one issue for our review, which we restate as: whether the

court erred by denying the petition to expunge.

Facts and Procedural History [3] In October 2010, Strohbach was involved in an altercation with her ex-

husband’s girlfriend, and Strohbach’s then nine-year-old son witnessed the

incident. As a result of this event, criminal charges were filed against

Strohbach, and she ultimately pleaded guilty to one count of disorderly conduct

as a Class B misdemeanor. In addition, DCS substantiated a report of child

neglect against Strohbach because, although her son was not struck or involved

in the altercation, he was present.

Discussion and Decision [4] Strohbach contends the court erred by denying her petition to expunge the

substantiated report of child neglect because she presented clear and convincing

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018 Page 2 of 13 evidence that satisfied the requirements of Indiana Code section 31-33-27-5

(2012).

[5] Indiana Code section 31-33-27-5 provides, in pertinent part:

....

(b) An individual identified as a perpetrator of child abuse or neglect in a substantiated report may file a petition with a court exercising juvenile jurisdiction in the county in which the individual resides, requesting that the court order the department to expunge the substantiated report and related information.

….

(e) In considering whether to grant a petition filed under this section, the court may review:

1 (1) the factors listed in IC 31-39-8-3 in relation to the petitioner, if the substantiated report was the subject of a juvenile court case; and

1 Indiana Code section 31-39-8-3 (2017) provides, in relevant part:

(e) In considering whether to grant the petition, the juvenile court may review: (1) the best interests of the child; (2) the age of the person during the person’s contact with the juvenile court or law enforcement agency; (3) the nature of any allegations; (4) whether there was an informal adjustment or an adjudication; (5) the disposition of the case; (6) the manner in which the person participated in any court ordered or supervised services; (7) the time during which the person has been without contact with the juvenile court or with any law enforcement agency; (8) whether the person acquired a criminal record; and (9) the person’s current status.

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018 Page 3 of 13 (2) any facts relating to the petitioner’s current status, activities, employment, contacts with children, or other circumstances relevant to consideration of whether the petition should be granted.

(f) The court may grant the petition if the court finds, by clear and convincing evidence, that:

(1) there is little likelihood that the petitioner will be a future perpetrator of child abuse or neglect; and

(2) the information has insufficient current probative value to justify its retention in records of the department for future reference.

[6] Strohbach’s burden of proof is by clear and convincing evidence. See Ind. Code

§ 31-33-27-5(f). In reviewing a judgment requiring proof by clear and

convincing evidence, we may not impose our own view as to whether the

evidence is clear and convincing. In re Guardianship of B.H., 770 N.E.2d 283,

288 (Ind. 2002). Rather, we must determine, by considering only the probative

evidence and reasonable inferences supporting the judgment and without

weighing evidence or assessing witness credibility, whether a reasonable trier of

fact could conclude that the judgment was supported by clear and convincing

evidence. Id.

[7] DCS did not file an appellee’s brief. In fact, it filed with this Court its intent not

to file a brief, noting that it took no position as to Strohbach’s petition to

expunge and that it stood silent at the hearings thereon. Where an appellee

does not file a brief, we do not undertake to develop arguments on that party’s Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018 Page 4 of 13 behalf; rather, we may reverse upon a prima facie showing of reversible error by

the appellant. Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008). Prima facie

error is error “at first sight, on first appearance, or on the face of it.” Front Row

Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014). This “prima facie error

rule” relieves this Court from the burden of controverting arguments advanced

for reversal, a duty which remains with the appellee. Simek v. Nolan, 64 N.E.3d

1237, 1241 (Ind. Ct. App. 2016).

[8] At the expungement hearings, Strohbach testified that she took her then nine-

year-old son with her to her ex-husband’s apartment to discuss with him an

issue regarding their son. The issue was that their son had told her that he did

not want to stay at his father’s house because, when there, he could hear his

father and his girlfriend having sex. The girlfriend of Strohbach’s ex-husband

was at the apartment when Strohbach and her son arrived. Strohbach testified

that her ex-husband grabbed her by the arms, and she broke free and attempted

to find his girlfriend so that they could all discuss the matter. Strohbach went to

the bedroom where the girlfriend slammed the door in her face, and she and

Strohbach ended up in a physical altercation. Strohbach testified that as a result

of this incident, she pleaded guilty to disorderly conduct. Her verified petition

further detailed that she was sentenced to six months of probation on this

charge, which she successfully completed, including the payment of all fines

and fees.

[9] Strohbach additionally testified that, besides the criminal charges, a

substantiated report of child neglect was filed against her because the altercation

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018 Page 5 of 13 occurred in the presence of her young son. She testified that the services she

underwent for the DCS case included random drug screens, individual therapy,

and family therapy with her son. Although DCS neither opposed Strohbach’s

petition nor participated in the hearing in any meaningful way, it confirmed to

the court that Strohbach participated in individual and family therapy. DCS

informed the court that Strohbach completed all services and that the wardship

was dismissed and the case closed as a successful reunification in December

2011. DCS also noted for the court that at the time the case was closed,

Strohbach’s son was doing well academically, that his needs were being met by

his parents, and that DCS had no concern with his safety while in his parents’

care.

[10] Strohbach further testified that she has joint physical and legal custody of her

son. She also acknowledged in her testimony that prior to and subsequent to

this incident she has not been the subject of any other child abuse or neglect

allegations or any other criminal charges. Additionally, Strohbach’s counsel

informed the court that she had successfully petitioned to have the

misdemeanor disorderly conduct conviction expunged from the record.

[11] Strohbach acknowledged that, at the time of the incident, she was employed at

DCS. However, she testified for the past three years she had been employed

with Wexford Health working at the DOC as a parole reentry liaison. She also

testified that she had begun courses to obtain her masters degree in social work.

In her testimony, she explained that her current internship dealt with adults but

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018 Page 6 of 13 that her next internship might require her to work with children and families,

and a substantiated DCS report might keep her from doing that.

[12] In addition to her own testimony, Strohbach presented the testimony of three

women, all of whom had known her for at least eight years and have children in

their homes under their care. One of the witnesses worked with Strohbach at

DCS and still works there. She testified that she has no concerns whatsoever

regarding Strohbach’s behavior with children and that she does not believe

Strohbach would be at risk of committing child neglect or abuse in any fashion

in the future. The second witness testified that she was acquainted with

Strohbach through their sons’ football team and that she has never been worried

or in fear for Strohbach to be around her children, even without her present.

She further testified that Strohbach had never shown any signs of being at risk

of child abuse or neglect; instead, Strohbach had always been caring and willing

to take care of the kids. Similarly, the third witness testified that she was

acquainted with Strohbach through their sons’ football team. She characterized

Strohbach’s behavior around children as “very loving and very caring.” Tr. p.

14. She also acknowledged that she had never been worried or in fear for

Strohbach to be around her children, even without her present.

[13] At the second expungement hearing, the court explained that it had obtained

the DCS report concerning the substantiation of neglect. There was mention in

the report that Strohbach had been diagnosed as being bipolar, and the court

questioned Strohbach about this diagnosis. Strohbach stated that she had been

diagnosed during her marriage and that she had been treated with medication

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018 Page 7 of 13 and mental health services. She further explained, “[A]fter I separated and was,

um, away from my ex-husband, my now ex-husband, for a substantial period of

time, a lot of the manifestations started to subside because I was no longer in a

very dysfunctional, abusive relationship. Um, over time [the doctor] weaned

me off of my medication and closed my case. I’ve been medication free for

several years now.” Id. at 26-27. She also reported to the court that she had

experienced no further problems of that sort.

[14] In denying Strohbach’s petition, the trial court found, in pertinent part:

4) That a Substantiated report was issued on November 4, 2010. The report showed that Petitioner attacked Father’s girlfriend and they got into a fight. The report also revealed that she has Bi-Polar Type II disorder and denied she was not taking her medications. The prescriptions reviewed by the caseworker showed that she was taking her medication. Petitioner also revealed she was released from therapy in August 2010. From the report, it appears there may have been Domestic Abuse in the relationship, Father against Mother.

9) Petitioner provided no evidence that she is addressing her Bi- Polar Type II disorder, and she claimed she was dismissed from therapy prior to the substantiated incident. She has not provided any proof other tha[n] what she testified, that she was released. She was taking her medication at the time of the incident and claims that the doctor weaned her off her meds and closed her case.

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018 Page 8 of 13 11) This Court finds, that there is not clear and convincing evidence of the following:

a) That there is little likelihood that Petitioner will be a future perpetrator of child abuse or neglect. To the contrary, Petitioner’s history of Bi-Polar — Type II, and no proof that she has it under control, coupled with her statement that she had been released from therapy two months prior to the incident is troubling.

b) That there is current probative value to justify the retention of the substantiation in the records as there is possibility of Petitioner working with children during their most vulnerable time.

Appellant’s App. Vol II, pp. 31-33.

[15] The evidence in this case showed that this occurrence of neglect was an isolated

incident that occurred eight years ago at the end of a bitter divorce. Strohbach’s

conduct was not directed at her son nor was her son struck or involved in any

way other than to witness the altercation between his mom and his dad’s

girlfriend. Strohbach readily admits that she exercised poor judgment in taking

her son with her to address her concerns with her ex-husband. However, she

accepted responsibility for her actions, both criminally and with the juvenile

court/DCS, and complied with all court orders and services. Moreover,

Strohbach has had no involvement with either DCS, the juvenile court, or the

criminal court since that incident.

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018 Page 9 of 13 [16] Further, in addition to her own testimony, Strohbach presented the testimony

of three witnesses as to her conduct with children. The uncontroverted

evidence shows that Strohbach’s interaction with children has been that of a

caring, loving adult with whom people aware of the neglect substantiation

would not be fearful of leaving their children. In addition, although DCS did

not agree to Strohbach’s request for expungement, it clearly informed the trial

court that it was not opposing expungement.

[17] In its findings, the trial court focused on a note contained in a 2010 or 2011 2 DCS report regarding a diagnosis of bipolar disorder. The court questioned

Strohbach about the diagnosis, and she candidly explained that the symptoms

had manifested themselves as a result of her abusive, dysfunctional marriage.

She stated that she was treated with medications and mental health services and

that once she was separated from her husband, the symptoms began to subside.

Under her doctor’s care, she was later weaned off the medications and released

from treatment. She added that she had been medication free for several years

and had experienced no further problems. The court noted in its findings that

Strohbach had taken her medications as prescribed and that she had been

released from therapy in August 2010. The court further noted it appeared that

Strohbach’s ex-husband had abused Strohbach during the marriage.

2 This report, although referred to by the court, was not made part of the record.

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018 Page 10 of 13 [18] Yet, in light of the evidence and the court’s own findings, the court nonetheless

stated in another finding that Strohbach “provided no evidence that she is

addressing” her bipolar disorder, that she “claimed” she was dismissed from

therapy prior to the incident but that she provided no proof other than her

testimony that she was released, and that she “claims that the doctor weaned

her off her meds and closed her case.” Id. at 32-33. The court then determined

that Strohbach’s “history” of bipolar disorder was a sufficient basis to find that

she had not met her burden, stating that there was “no proof that [Strohbach]

has it under control” and it was troubled by the fact that “she had been released

from therapy two months prior to the incident.” Id. at 33.

[19] Notably, the court made no findings that the testimony of Strohbach, or any of

her witnesses, was not credible. In addition, DCS obviously knew about

Strohbach’s previous diagnosis, treatment, and release and yet it did not oppose

her expungement request. Moreover, there was no evidence of a professional

nature explaining Strohbach’s condition or associating it in any way with the

incident. On the contrary, the evidence shows that Strohbach’s reaction at her

ex-husband’s apartment in 2010 followed her ex-husband grabbing her by the

arms and his girlfriend slamming a door in her face. Strohbach testified, and it

was apparently somewhat documented in the DCS report, that her marriage

was an abusive, dysfunctional relationship. In response to questioning by the

court, Strohbach testified, “my ex-husband put his hands on me which had

been a recurring theme in our marriage, that he was physically—he was a bully.

A physical bully. Um, so I broke away from him and I ran down the hallway to

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018 Page 11 of 13 call his girlfriend out [of the bedroom] because I wanted number one to talk to

her, I wanted her in my physical presence cuz I thought if she was there he

would stop being aggressive towards me. When I got to the bedroom she

slammed the door on me, it hit me in the face, and then I just—my defense

mechanism kicked in.” Tr. p. 28.

[20] The trial court was presented with no evidence that Strohbach’s actions were

caused by or related in any way to a bipolar disorder; therefore, the speculative

concerns of the trial court regarding any bipolar condition that might have

existed in the past do not support the court’s determination. Thus, in light of

the anomalous nature of this incident as well as the unequivocal and

uncontroverted testimony of Strohbach and her three witnesses, we conclude

that Strohbach has made a prima facie showing that there was clear and

convincing evidence that there is little likelihood Strohbach will be a future

perpetrator of child abuse or neglect. Moreover, because we conclude thus,

there is no present reason for maintaining the record of the neglect

substantiation.

Conclusion [21] For the foregoing reasons, we conclude that Strohbach has made a prima facie

showing of reversible error.

[22] Reversed and remanded with instructions to the court to grant Strohbach’s

petition and to order expungement of her neglect substantiation.

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018 Page 12 of 13 Mathias, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1018 | September 26, 2018 Page 13 of 13