in-the-matter-of-minor-children-alleged-to-be-in-need-of-services-rc-and ( 2013 )

Pursuant to Ind.Appellate Rule 65(D), Jun 21 2013, 5:54 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
ALICE BARTANEN-BLEVINS NICHOLAS A. SILER
Bartanen Law Office DCS, Washington County Office
Salem, Indiana Salem, Indiana
ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF MINOR CHILDREN )
ALLEGED TO BE IN NEED OF SERVICES, )
R.C. and J.C., Minor Children, )
)
D.S., Mother, and E.S., Stepfather, )
)
Appellants-Respondents, )
)
vs. ) No. 88A01-1211-JC-510
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE WASHINTON CIRCUIT COURT
The Honorable Larry W. Medlock, Judge
Cause Nos. 88C01-1206-JC-134; 88C01-1206-JC-135
June 21, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
D.S. (Mother) and E.S. (Stepfather) (collectively, Appellants) appeal the adjudication
of Mother’s children, R.C., born July 31, 2002, and J.C., born April 8, 2004, as Children in
Need of Services (CHINS). Appellants present two arguments,1 which we consolidate and
restate as whether the Department of Child Services (DCS) presented sufficient evidence the
children were CHINS. We affirm.
FACTS AND PROCEDURAL HISTORY
On May 14, 2012, DCS received a report that R.C. and J.C. had marks and bruises on
their thighs and buttocks because Stepfather hit them with a belt as punishment. The report
also alleged Stepfather recently had punched R.C. in the stomach, causing R.C. to have
difficulty breathing. DCS Family Case Manager Deborah Ponder was assigned to the case
and spoke with R.C. at her elementary school. R.C. confirmed the accounts in the report.
That evening, Ponder went to the family home and found the children were home without
adult supervision. Ponder contacted Mother and Stepfather and they eventually returned
home. Once they arrived, DCS took the children to an emergency room for medical
evaluation.
Angie Motsinger, RN, and Dr. David Britt examined the children, who had bruising
on their right posterior thighs: R.C. had four separate markings ranging in size from eight and
1
In addition to their sufficiency argument, Appellants argue, citing In the Matter of E.H. and L.H., 612 N.E.2d
174, (Ind. Ct. App. 1993), reh’g denied, “the CHINS statute, including its jurisdictional trigger, is a way for
the government to respond emergency situations involving children unlikely to be helped without court
intervention.” (Br. of Appellants at 9.) However, In the Matter of E.H. and L.H. is distinguishable because
our court’s holding applied to those cases in which the court’s jurisdiction under Uniform Child Custody and
Jurisdiction Act (UCCJA) was in question. That is not the case here, and therefore we reject Appellants’
argument.
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one half centimeters to the size of a quarter; and J.C. had two markings, one in the shape of a
“J” and another the size of a quarter. The children reported the injuries were a result of
Stepfather hitting them with a belt as punishment for not completing their chores.
Stepfather admitted he hit the children with a belt. He agreed to leave the home at
DCS’ request, but was allowed back after he and Mother agreed corporal punishment would
not be used on the children.
On July 6, DCS filed a petition alleging the children were CHINS. On July 24, the
juvenile court held a hearing during which Appellants denied the CHINS allegations. On
September 25 and October 9, the juvenile court held fact-finding hearings. On October 16,
the juvenile court adjudicated R.C. and J.C. as CHINS.
DISCUSSION AND DECISION
A CHINS proceeding is civil in nature, so the State must prove by a preponderance of
the evidence that a child is a CHINS. In re N.E. v. IDCS, 919 N.E.2d 102, 105 (Ind. 2010).
The CHINS petition in the instant case was filed pursuant to Ind. Code §§ 31-34-1-1 and -
2(a), which state, respectively:
Sec. 1. A child is a child in need of services if before the child becomes
eighteen (18) 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
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.
Sec. 2. (a) A child is a child in need of services if before the child becomes
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eighteen (18) years of age:
(1) the child’s physical or mental health is seriously endangered due to
injury by the act or omission of the child’s parent, guardian, or
custodian; 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.
A CHINS adjudication “focuses on the condition of the child,” and not the culpability of the
parent, In re N.E., 919 N.E.2d at 105, because the purpose of finding a child to be a CHINS
is to provide proper services for the benefit of the child, not to punish the parent. Id. at 106.
When a juvenile court enters findings of fact and conclusions of law in a CHINS
decision, we apply a two-tiered standard of review. Parmeter v. Cass County DCS, 878
N.E.2d 444, 450 (Ind. Ct. App. 2007), reh’g denied. We first consider whether the evidence
supports the findings and then whether the findings support the judgment. Id. We may not
set aside the findings or judgment unless they are clearly erroneous. Id. Findings are clearly
erroneous when the record contains no facts to support them either directly or by inference,
and a judgment is clearly erroneous if it relies on an incorrect legal standard. Id. We give
due regard to the juvenile court’s ability to assess witness credibility and do not reweigh the
evidence; we instead consider the evidence most favorable to the judgment with all
reasonable inferences drawn in favor of the judgment. Id. We defer substantially to findings
of fact, but not to conclusions of law. Id.In adjudicating children as CHINS, the juvenile court found:
4. On May 14, 2012 a report was received by the Indiana Department of Child
services for Washington Court, through the centralized intake unit. The report
alleged that [Stepfather] had “whooped” both children with a belt, leaving
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marks and bruises. The report source stated that the bruises were purple and
red in color, were about 3-4 inches in length and appeared to be belt-shaped.
The report also stated that the child [sic] were “whooped” because they got
into trouble. The report further stated that [Stepfather] punched [R.C.] in the
stomach with a closed fist, and that it knocked her out.
*****
5. That [R.C] confirmed to Ponder that [R.C.] has bruising on her thighs and
lower buttocks.
*****
7. The same day, [Ponder] interviewed [R.C] regarding the allegations. On
that basis, [Ponder] conducted a further investigation by visiting the home at
6:00 p.m[.], after no one was home at 3:45 p.m. [J.C.] answered the door, and
neither parent was in the home.
8. The children did not have a plan for an emergency, besides contacting
[Mother], who worked about forty-five (45) minutes away in Louisville.
9. That [Ponder] made telephone contact with [Mother] who advised that she
would be home as soon as possible and that [Stepfather] was on his way home
from work.
10. At 6:30, [Mother] was contacted by [Ponder] and [Stepfather’s] parents
came to the home later. [Stepfather] arrived at the home about 7:00 p.m., and
had an odor of alcoholic beverage coming from his person. [Mother] returned
to the home at 7:30 p.m.
*****
12. Following this, the children were taken to be seen by staff at St. Vincent’s
Salem Memorial Hospital. Angie Motsinger, an emergency room nurse, and
Dr. David Britt, the treating emergency room physician on May 14, 2012,
examined the children.
13. That [Dr.] Britt stated that neither child complained of any pain.
14. That Angie Motsinger, R.N., testified that it was reported by [R.C.] that
one of the bruises entered by D.C.S. as support of their substantiation was
caused by her brother, [J.C.].
15. The medical records admitted into evidence show both children reported
to Angie Motsinger and Dr. David Britt that they had been spanked with a belt
by [Stepfather], and that the observed injuries, in the form of bruising, were
consistent with these injuries. The pictures admitted into evidence, taken by
FCM Ponder, also show bruising to the back of the legs consistent with the
type of injuries observed. The Court therefore finds that the children were
spanked with a belt by [Stepfather].
*****
18. Family members have long had concerns about excessive punishment
administered by [Mother and Stepfather], and [Stepfather] admitted under
oath, and to Ponder, that he administered corporal punishment with a belt, and
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gave an explanation that he could not spank the children with his hand because
of a wrist injury.
19. On May 15, 2012, [Stepfather] showed FCM Ponder the belt he used to
spank the children.
20. The types of injuries exhibited by the children, both in terms of their
nature, the children’s statements to medical professionals for purpose of
treatment and to the family case manager, and based on the observations of
family members from past incidents, indicate that the type of observable
injuries suffered by the children were non-accidental.
21. [R.C.] had an incident with [Stepfather] approximately two weeks before
[the] report was received, where [R.C.] was placed in fear by the wind being
knocked out of her. According to [Mother] and [Stepfather], she fell down,
but in a text to [Maternal Grandmother], [Mother] called it a “fight or flight
moment, like [Mother] has sometimes.” [Mother] termed this a case of
temporary extreme fear and disorientation.
22. The children physically fight with each other on a regular basis.
23. [Mother] cannot remember the name of [R.C.’s] psychiatrist.
*****
27. That [Ponder] acknowledged that [Mother and Stepfather] had been
offered an informal adjustment which they had declined to sign.
*****
35. [Maternal Step-Grandmother] testified that she had observed some
questionable parenting choices including [Stepfather] grabbing the children.
*****
37. That [Maternal Grandmother] testified that she had noticed bruising on
[R.C.’s] legs.
38. That [Maternal Grandmother] testified that [J.C.] didn’t think he had
bruising.
39. That [Maternal Grandmother] has observed physical punishment in the
past which she finds inappropriate.
40. That [Mother’s Brother] testified that he had checked [J.C.] for bruising
on May 12, 2012, and seen bruising to his right posterior thigh and lower
buttocks.
*****
43. That [CASA Director] Kim Grantz testified that the children had missed
the school bus the morning of the trial and had walked partially to school and
then gotten on another school bus other than their normal route. On the date of
the hearing, the children attempted to walk to school when they stopped a bus
by banging on the door, and then got on the bus. [Stepfather] was not awake at
the time, and could not ensure the children got to school properly.
44. That [Stepfather] was in the home at the time of the children leaving for
school.
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(App. at 55-59.) Based on those findings, the juvenile court concluded:
7. Because of the injuries suffered by the children and the injuries observed by
medical professionals including Dr. Britt and RN Motsinger, the corporal
punishment administered to the children was not reasonable. This is both
based on the children’s ages, the lack of success in the punishment in terms of
correcting behavior, and repeated concerns expressed by family members.
8. The Court found that [Stepfather] had spanked the children with a belt,
leaving bruises, but even if the Court could not determine this causation and
chose to believe the testimony of the parents, the injuries were not accidental,
and would not ordinarily be sustained except for the act or omission of the
child’s parent, guardian or custodian. Since [Stepfather] lives in the same
house with the children and is responsible for care, [sic] and supervision of the
children, he would be considered a custodian under the Indiana Code.
9. The coercive intervention of the Court is necessary to provide services to
the family on the basis that the parents have failed to agree on any sort of
voluntary services with the Department, in terms of an informal adjustment.
[Mother and Stepfather] have stated that they have attempted to abide by a
safety plan and to get proper mental health treatment for the children, but
[Mother] is even unable to remember the name of the psychiatrist for [R.C.].
There also has been a refusal to allow the Department access to the children
while this matter has been pending, and the Court is allowed to take judicial
notice of its [own] records in these proceedings.
(Id. at 61-62.)
Appellants argue “the State failed to present evidence that proves that the children’s
physical or mental condition was seriously impaired” by Appellants’ actions (Br. of
Appellant at 8). However, DCS presented evidence both children had ADHD, and thus
corporal punishment was not an effective way to address the children’s behavior. In
addition, FCM Ponder testified the children had been exposed to violence, and their violent
behaviors, such as fighting with one another, stemmed from that exposure. Appellants also
argue DCS did not present evidence there was a history of family violence. On the contrary,
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DCS presented testimony from several family members about past violence against the
children, including the existence of bruises on the children’s legs and arms and incidents
where the children were smacked, punched, or thrown as punishment.
Appellants also argue DCS intervention was not required because they had sought
medical treatment for J.C.’s ADHD, however, FCM Ponder testified she was concerned the
children were not receiving proper care for the ADHD because Mother could not remember
the name of R.C.’s psychiatrist. Appellants further argue DCS intervention was not required
because the Appellants had ceased corporal punishment. However, DCS presented evidence
both Mother and Stepfather refused to participate in and sign an informal adjustment plan,
which would address the use of corporal punishment and its alternatives, until ordered to do
so by the court. Finally, Appellants argue DCS intervention was not required because the
children were in after-school care and thus were not home alone after school. However,
there was no evidence Appellants had a plan for times during which children were not in
school and Appellants were unable to care for them.
Appellants’ arguments are invitations for us to reweigh the evidence and judge the
credibility of witnesses, which we cannot do. See Parmeter, 878 N.E.2d at 450 (appellate
court does not reweigh evidence or judge the credibility of witnesses). Accordingly, we
affirm the juvenile court’s decision.
Affirmed.
BAKER, J., and MATHIAS, J., concur.
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