In the Matter of Jm.K., (Minor Child in Need of Services), and A.A. (Mother) v. The Indiana Department of Child Services (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 20 2016, 7:05 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Deborah K. Shepler Gregory F. Zoeller
Sullivan, Indiana Attorney General of Indiana
Robert J. Henke
Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of Jm.K., December 20, 2016
(Minor Child in Need of Court of Appeals Case No.
77A05-1605-JC-1020
Services),
Appeal from the Sullivan Circuit
and, Court
The Honorable Robert E. Hunley,
A.A. (Mother), II, Judge
The Honorable Robert E. Springer,
Magistrate
Appellant-Respondent,
Trial Court Cause No.
77C01-1601-JC-4
v.
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The Indiana Department of Child
Services,
Appellee-Petitioner.
Barnes, Judge.
Case Summary
[1] A.A. (“Mother”) appeals the trial court’s finding that her son, Jm.K., is a child
in need of services (“CHINS”). We affirm.
Issues
[2] Mother raises one issue, which we restate as whether the evidence is sufficient
to prove Jm.K. is a CHINS.
Facts
[3] Jx.K. was born in February 2014 to Mother and J.K. (“Father”). On June 28,
2014, the Sullivan County Department of Child Services (“DCS”) received a
report that Jx.K. had been brought to the hospital with injuries. Father stated
that Jx.K. had stopped breathing after he left Jx.K. on the bed and went to get a
bottle. According to Father, he performed CPR on Jx.K. and called 911. Jx.K.
had bruises on his shoulders, arms, face, and foot. Mother stated that she was
not at home when the injuries occurred. X-rays revealed that Jx.K. had
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“subacute or old fractures of the medial shaft of the right clavicle, lateral shaft
of the left clavicle, mid shaft of the right tibia, and the base of the left first
metatarsal.” Appellee’s App. Vol. II p. 18. Neither Mother nor Father was
able to explain the fractures.
[4] DCS took Jx.K. into protective custody, and the trial court found him to be a
CHINS. He was initially placed with his paternal grandmother. However, in
April 2015, a DCS worker observed a bruise on Jx.K.’s arm, and after Jx.K.
was placed in foster care, Father admitted to biting Jx.K. after he bit Father.
Father was arrested and charged with battery.
[5] Jm.K. was then born to Mother and Father in November 2015. DCS
immediately removed Jm.K. from Mother and Father’s care and filed a petition
alleging that Jm.K. was also a CHINS. After an evidentiary hearing, the trial
court entered an order finding that Jm.K. was a CHINS. The trial court took
judicial notice of the evidence and findings in Jx.K.’s CHINS case and found:
The child, [Jx.K.,] was severely injured with multiple injuries,
including broken bones, spiral fractures and bruises. The injuries
have no other explanation other than that they were caused by
the act or omission of one or both of the parents. The child
[Jx.K.] has not been returned to his parents’ care since the initial
removal. The parents have not taken responsibility for any
particular act or omission on their part that caused [Jx.K.’s]
injuries. Given said denial, they have not addressed the causes of
[Jx.K.’s] injuries. As a result, insufficient progress has been
made that would allow a child to safely reside in their care.
Therefore, [Jm.K.’s] physical or mental condition is seriously
endangered by the parents’ neglect, inability or refusal to provide
a safe home. The coercive intervention of the Court is necessary
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due to the parents’ refusal to accept responsibility and address the
causes of [Jx.K.’s] injuries.
Appellant’s App. Vol. II p. 4. Mother now appeals. 1
Analysis
[6] Mother challenges the trial court’s finding that Jm.K. is a CHINS. “A CHINS
proceeding is a civil action; thus, ‘the State must prove by a preponderance of
the evidence that a child is a CHINS as defined by the juvenile code.’” In re
K.D., 962 N.E.2d 1249, 1253 (Ind. 2012) (quoting In re N.E., 919 N.E.2d 102,
105 (Ind. 2010)). We neither reweigh the evidence nor judge the credibility of
the witnesses. Id. We consider only the evidence that supports the trial court’s
decision and reasonable inferences drawn therefrom. Id. We reverse only upon
a showing that the decision of the trial court was clearly erroneous. Id.[7] “There are three elements DCS must prove for a juvenile court to adjudicate a
child a CHINS.” Id. DCS must first prove the child is under the age of
eighteen. Id. DCS must then prove that at least one of eleven different
statutory circumstances exists that would make the child a CHINS. Id. Finally,
“in all cases, DCS must prove the child needs care, treatment, or rehabilitation
that he or she is not receiving and that he or she is unlikely to be provided or
accepted without the coercive intervention of the court.” Id.1
Father does not participate in this appeal.
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[8] Here, DCS alleged that Jm.K. was a CHINS based on Indiana Code Section
31-34-1-1 and Indiana Code Section 31-34-1-2.2 The trial court found Jm.K. to
be a CHINS based on Indiana Code Section 31-34-1-1, which provides:
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
Indiana Code Section 31-34-1-2(a) provides:
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 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.
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(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.
[9] Mother appears to challenge only the trial court’s finding that Jm.K.’s “physical
or mental condition is seriously endangered by the parents’ neglect, inability or
refusal to provide a safe home.” Appellant’s App. Vol. II p. 4. According to
Mother, the trial court disregarded progress made in Jx.K.’s CHINS case
because of their failure to provide an explanation for Jx.K.’s injuries. Mother
argues that the CHINS finding “was based solely on conditions that existed at
the time of Jx.K.’s injuries, but no longer existed at the time of Jm.K.’s fact
finding hearing.” Appellant’s Br. p. 10.
[10] In support of her argument, Mother relies on In re B.W., 17 N.E.3d 299 (Ind.
Ct. App. 2014). In B.W., the children were removed from their mother and her
fiance after one of the children had a fractured arm and x-rays revealed several
other fractures in various stages of healing. The mother and her now-husband
stipulated that there was no adequate explanation for the injuries and that the
children were CHINS. The husband was later dismissed from the proceedings
after he filed a petition for dissolution of marriage. The mother participated in
home-based services, therapy, and visitations, but DCS and the trial court
remained concerned about the mother’s lack of honesty regarding the child’s
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injuries. After a permanency hearing, the trial court appointed guardians for
the children, and the mother appealed that order.
[11] The issue on appeal was whether the trial court abused its discretion by
appointing guardians over the children. We concluded that the trial court’s
finding that a guardianship was in the children’s best interests was clearly
erroneous. We held that “DCS presented no evidence to demonstrate any
conditions existing at the time of the final permanency hearing to justify the
permanent removal of the children.” B.W., 17 N.E.3d 310. We concluded: “In
sum, there is simply no clear and convincing evidence that the children would
be in any danger if they are reunited with Mother. Mother’s failure to explain
the cause of B.W.’s injuries is not evidence of a present inability to provide a
safe home for the children.” Id. Consequently, we held that the trial court
abused its discretion by ordering the guardianships.
[12] We find this case to be distinguishable from B.W. B.W. addressed a trial court’s
granting of a guardianship, which was essentially the “permanent removal of
the children.” Id. at 309. Here, we are reviewing a trial court’s decision that
Jm.K. is a CHINS. As the State points out that Mother does not challenge any
of the trial court’s findings of fact, including the trial court’s finding that the
“injuries have no other explanation other than that they were caused by the act
or omission of one or both of the parents.” Appellant’s App. Vol. II p. 4. DCS
presented evidence that, although they have participated in services in the
CHINS action related to Jx.K., Mother and Father have not addressed the
cause of Jx.K.’s injuries and, as a result, have not made sufficient progress to
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have Jx.K. returned to their care. Under these circumstances, we conclude that
the trial court’s finding that Jm.K. is also a CHINS is not clearly erroneous.
Conclusion
[13] The trial court properly concluded that Jm.K. is a CHINS. We affirm.
[14] Affirmed.
Bailey, J., and Riley, J., concur.
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