In the Matter of Ka.S., S.S., and Ch.I., Children Alleged to be Children In Need of Services K.S. (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 14 2019, 9:07 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of Ka.S., S.S., and August 14, 2019
Ch.I., Children Alleged to be Court of Appeals Case No.
Children In Need of Services; 19A-JC-545
K.S. (Mother), Appeal from the Jackson Superior
Court
Appellant-Respondent,
The Honorable Bruce A.
v. MacTavish, Judge
Trial Court Cause Nos.
Indiana Department of Child 36D02-1805-JC-38
36D02-1805-JC-39
Services,
36D02-1805-JC-40
Appellee-Petitioner.
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JC-545 | August 14, 2019 Page 1 of 5
Statement of the Case
[1] K.S. (“Mother”) appeals the trial court’s adjudication of her three minor
children, Ka.S., S.S., and Ch.I. (collectively, “the Children”) as Children in
Need of Services (“CHINS”). Mother raises a single issue for our review,
namely, whether the trial court clearly erred when it adjudicated the Children to
be CHINS after Mother had permitted Ch.I. (hereinafter, “the Child”) to fondle
her breasts while she masturbated.
[2] We affirm.
Facts and Procedural History
[3] In May of 2018, C.I., the Child’s father (“Father”), spoke with Mother on his
cell phone using a video-conferencing app. During that conversation, Mother
“started masturbating and asking [Father] to drop [his] custody case.” Aug. 29,
2018, Tr. Vol. 2 at 9. While she was doing so, the Child “pull[ed] her shirt
down, play[ed] with her nipples, [and] suck[ed] on her nipples.” Id. The Child
was about twenty-three months old and, although he had been breastfed when
he was younger, had been weened “for months” prior to the phone call. Id.
[4] Father recorded the phone call and surrendered the recording to the Indiana
Department of Child Services (“DCS”) and local law enforcement. Thereafter,
DCS filed its petition alleging the Children to be CHINS. Father testified to the
court at an ensuing fact-finding hearing. Jennifer Eddings, a home-based
family therapist, also testified at that hearing. According to Eddings, based on
Mother’s alleged conduct with the Child, Mother’s participation in family
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therapy with Child’s siblings was “necessary for [the other two children] to be
able to move forward,” but Mother refused to participate. Id. at 39. Eddings
further testified that Mother’s refusal to participate was “detrimental” to the
Child’s siblings. Id.
[5] Following that hearing, the court found as follows:
4. On May 17, 2018, [Father] recorded a video on his phone
which depicted [Mother] masturbating while [the Child] played
with and sucked on her nipples.
***
8. [Eddings] has attempted to engage Mother in therapy as
she believes it is necessary for her to participate. Mother has thus
far refused to engage in any therapy with Ms. Eddings.
Appellant’s App. Vol. 2 at 68. The court then adjudicated the Children to be
CHINS. This appeal ensued.
Discussion and Decision
[6] Mother asserts that the trial court clearly erred when it adjudicated the Children
to be CHINS. As our Supreme Court has explained:
In all CHINS proceedings, the State must prove by a
preponderance of the evidence that a child is a CHINS as defined
by the juvenile code. When reviewing a CHINS adjudication,
we do not reweigh evidence or judge witness credibility and will
reverse a determination only if the decision was clearly
erroneous. A decision is clearly erroneous if the record facts do
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not support the findings or if it applies the wrong legal standard
to properly found facts.
V.B. v. Ind. Dep’t of Child Servs., 124 N.E.3d 1201, 1208 (Ind. 2019) (citations
and quotation marks omitted).
[7] Mother asserts that “[a] single incident of inappropriate behavior in the
presence of the child is not sufficient to demonstrate the child is in need of
services.” Appellant’s Br. at 11. She further asserts that “[t]here was no
evidence that [the Child] or any other child was physically or mentally harmed
by Mother’s actions.” Id. at 12. And she claims that DCS failed to prove that
the coercive intervention of the court was necessary. 1
[8] We reject Mother’s arguments. First, Mother cites no case law support for her
categorical statement that “[a] single incident of inappropriate behavior” cannot
support a CHINS adjudication. Id. While this Court may have reversed
adjudications based on only a single incident of certain inappropriate behaviors,
not all inappropriate behaviors are equally inappropriate. See A.M. v. Ind. Dep’t
of Child Servs. (In re Ad.M.), 103 N.E.3d 709, 714-15 (Ind. Ct. App. 2018) (“the
evidence in the instant case demonstrates that there was one incident of
domestic violence between Mother and Father, that Mother and the Children
have since moved away from Father, and that Mother has filed for a protective
1
Insofar as Mother asserts a failure by DCS to prove other circumstances that might have resulted in the
adjudications here, such as her mental health or a failure to provide food, clothing, or shelter, we need not
consider such arguments.
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order against him. Accordingly, DCS has not presented sufficient evidence to
show that the single incident of domestic violence seriously endangered the
Children.”). Mother has not carried her burden on appeal to show that the trial
court’s judgment here, which is supported by the evidence, is contrary to law.
[9] We also reject Mother’s argument that DCS failed to demonstrate either that
the Children were harmed by Mother’s actions or that the coercive intervention
of the court was necessary. Instead, we agree with DCS that “Mother’s
criminally inappropriate conduct with [the Child] showed that she had
problems that would benefit from therapy, and Mother’s refusal to do so
endangered” each of the Children. Appellee’s Br. at 14. Indeed, Mother’s
conduct, as demonstrated by Father’s testimony to the court, directly
endangered Child. And her refusal to participate in home-based services, as
demonstrated by Eddings’ testimony to the court, was “detrimental” to Child’s
siblings. Aug. 28, 2018, Tr. Vol. 2 at 39. Thus, we cannot say that the
undisputed evidence and the reasonable inferences therefrom demonstrate that
the trial court erred when it adjudicated the Children to be CHINS.
Accordingly, we affirm the trial court’s judgment.
[10] Affirmed.
Bailey, J., and May, J., concur.
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