In the Matter of: Q.J., Jr., Q.J., Bre.J., Ba.J., Bri.J., and Bro.J., Children in Need of Services, Q.J., Sr. (Father) v. Indiana Department of Child Services , 92 N.E.3d 1092 ( 2018 )

FILED
Jan 17 2018, 7:49 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Trenna S. Parker Curtis T. Hill, Jr.
Trenna S. Parker Law Office, P.C. Attorney General of Indiana
Noblesville, Indiana
David E. Corey
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: Q.J., Jr., Q.J., January 17, 2018
Bre.J., Ba.J., Bri.J., and Bro.J., Court of Appeals Case No.
Children in Need of Services, 29A04-1706-JC-1482
Q.J., Sr. (Father), Appeal from the Hamilton
Superior Court
Appellant-Respondent,
The Honorable Todd L. Ruetz,
v. Magistrate
The Honorable Steven R. Nation,
Indiana Department of Child Judge
Services, Trial Court Cause Nos.
29D01-1608-JC-1036
Appellee-Petitioner.
29D01-1608-JC-1037
29D01-1608-JC-1039
29D01-1608-JC-1040
29D01-1608-JC-1041
29D01-1608-JC-1042
Najam, Judge.
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Statement of the Case
[1] Q.J., Sr. (“Father”) appeals the trial court’s adjudication of his six minor
children as children in need of services (“CHINS”).1 The Children are: Q.J.,
Jr., born September 11, 2001; Q.J., born December 28, 2002; Bre.J., born May
19, 2005; Ba.J., born December 31, 2008; Bri.J., born June 25, 2011; and
Bro.J., born May 17, 2013, (“the Children”).2 Father raises four issues for our
review, which we restate as the following three issues:
1. Whether the trial court abused its discretion when it
allowed Dr. Demetris to testify as to statements Q.J., Jr.
had made to her during her examination of him.
2. Whether there was sufficient evidence to support the trial
court’s adjudication of the Children as CHINS.
3. Whether Father was denied the effective assistance of
counsel.
[2] We affirm.
Facts and Procedural History
[3] On August 24, 2016, Q.J., Jr., who was fourteen years old, ran away from
home. Father and B.J. (“Mother”) filed a report with the Carmel Police
Department. Officer Blake Lytle responded to the call and first observed Q.J.,
1
The Children’s mother does not participate in this appeal.
2
Q.J., Jr. and Q.J. are both males and will be referred to collectively as “the Boys.” Bre.J., Ba.J., Bri.J., and
Bro.J. are females and will be referred to collectively as “the Girls.”
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Jr. that night wearing a black shirt and blue boxers. When Q.J., Jr. saw Officer
Lytle, he ran. Q.J., Jr. eluded officers until the next morning. On August 25,
officers located Q.J., Jr. and discovered that he had slept under a box in the
woods. Q.J., Jr. had two stolen backpacks with him that were filled with stolen
food. Officer Lytle was present when officers located Q.J., Jr. Officer Lytle
observed Q.J., Jr. limping, so he arranged for a medic to examine him. Officer
Lytle thought that Q.J., Jr. appeared skinny and he was concerned that Q.J., Jr.
was being abused, so he notified his supervisor in order to have a detective
interview Q.J., Jr. While the medics examined him, Q.J., Jr. told Officer Lytle
that “things were going on at home.” Tr. Vol. III at 35.
[4] Master Patrolman David Vanderbeck was also on the scene when officers
located Q.J., Jr. Officer Vanderbeck was shocked by Q.J., Jr.’s appearance. He
observed that Q.J., Jr. was “just like skin and bones. He was really small.” Id.
at 18. Officer Vanderbeck was concerned about Q.J., Jr.’s health and well-
being, so he also called the fire department to have the medics examine him.
When Officer Vanderbeck asked Q.J., Jr. why he ran away, Q.J., Jr. got “all
teary-eyed and stuff” and said he “was too scared to tell [Officer Vanderbeck]
because his mom and dad would find out what he told [Officer Vanderbeck].”
Id. at 19. Officer Vanderbeck suggested to Sergeant Brady Myers that their
investigation division be notified about the situation. Sergeant Myers contacted
Detective Nancy Zellers. Officer Vanderbeck then transported Q.J., Jr. to the
police station.
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[5] After Q.J., Jr. arrived at the police station, Detective Zellers conducted a
forensic interview of him. During the interview, Q.J., Jr. described abuse he
and his siblings endured at home. He said that there were cameras set up in the
home to monitor their behavior and that they were denied ready access to food,
which was kept in the master bedroom closet. Q.J., Jr. also said that he was
being abused and that “food was being withheld and that he was being beaten.”
Tr. Vol. II at 243. Detective Zellers stated that Q.J., Jr. “did not have the
appearance of being a well-nourished child.” Id.
[6] At the police station, Detective Zellers spoke with Mother. Mother told
Detective Zellers that “she was frustrated, that . . . [Q.J., Jr.] was ruining their
lives.” Id. at 225. She further said that Q.J., Jr. “was evil, he was a liar, he was
a kleptomaniac because he stole food from their pantry, he stole food from
dumpsters and ate it.” Id. Based on Mother’s description of the events,
Detective Zellers became concerned that Q.J., Jr. was being neglected and
abused. Detective Zellers determined that Q.J., Jr. should be taken to the
hospital because “he did not look well. He appeared emaciated and just did not
look well, sunken eyes.” Id. at 224-25.
[7] Detective Zellers obtained a search warrant for Mother and Father’s home to
corroborate Q.J., Jr.’s statements. Detective Zellers executed the search
warrant on the evening of August 25 and found cameras in the home, but there
were no stored images. Another officer determined that there was food in the
master closet.
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[8] Peyton Lill, a Family Case Manager (“FCM”) with the Indiana Department of
Child Services (“DCS”), was assigned to investigate the safety and well-being of
the Children after she received a report that Q.J., Jr. had run away and that
there was physical abuse. Lill went to the police station and interviewed Q.J.,
Jr. On August 27 at approximately 3:00 P.M., Lill was able to speak with all of
the Children except Q.J., Jr. All five of them said they had not yet eaten on
that day.
[9] After Zellers and Lill interviewed Q.J., Jr., he was transported to the hospital
and admitted. On August 26, Doctor Cortney Demetris evaluated him. Dr.
Demetris was concerned about Q.J., Jr.’s “weight and malnutrition as well as
some injuries and some lab abnormalities.” Id. at 96. Dr. Demetris’ initial
concern was that Q.J., Jr. was malnourished because “he was so underweight
and he was so small for his age and he had laboratory findings that were
consistent with malnourishment.” Id. at 99. When he was admitted to the
hospital, Q.J., Jr. weighed approximately seventy-two pounds. Dr. Demetris
reviewed the results of laboratory work that had been done on Q.J., Jr. Dr.
Demetris found that Q.J., Jr. had “an elevated CPK[,] which is an enzyme that
is released from the muscle if there’s time when the muscle is damaged or
stressed. He also had a very low prealbumin[,] which is a marker for nutritional
status, specifically as it relates to proteins and protein malnutrition.” Id. at 107.
In addition to her concerns about malnourishment, Dr. Demetris also observed
an abrasion on Q.J., Jr.’s chin; some tenderness and swelling on his ankle; and
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some bruising over his lower back, the top of his buttocks, on one of his hips,
and on his chest.
[10] On August 26, and on two other occasions, Dr. Demetris spoke with Mother
about Q.J., Jr. Mother stated that Q.J., Jr. would eat fruit for breakfast, a
Lunchable or leftovers with some chips for lunch, and a homecooked meal or
dinner out with the family for dinner. Mother further stated that Q.J., Jr.
would frequently steal and exhibit other difficult behaviors and that she “was
going to provide him with the kind of basic three meals a day and he would not
be allowed to have any extra as a result of negative consequences for these
behaviors that he was exhibiting.” Id. at 119. Mother told Dr. Demetris that
Q.J., Jr. would steal food and eat food out of trash cans. She said that he
would also steal nonfood items like protein powder from Mother’s purse. Dr.
Demetris asked Mother if, based on his degree of malnutrition, Mother felt he
was stealing food because he was starving. Mother said she “felt that [Q.J., Jr.]
was getting enough food each day[.]” Id. at 121. Mother said she was not
going to give him any extras beyond three meals a day, which Mother said is
“the minimum she was required to provide him as his parent[.]” Id. at 122.
Mother also told Dr. Demetris that the Children can have extra food if they
speak up about their siblings’ misbehaviors. Dr. Demetris was concerned about
Q.J., Jr.’s siblings “based on the history that was provided to me by [Q.J., Jr.]
and his mother.” Id. at 128. Dr. Demetris recommended that the other
children be evaluated to determine if they were malnourished or if they had any
injuries consistent with physical abuse.
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[11] A few days later, Dr. Demetris examined Q.J., Jr.’s brother, Q.J., who was
thirteen years old. When Dr. Demetris examined Q.J., he had already been
admitted to the hospital because of malnutrition. Dr. Demetris was concerned
about Q.J.’s weight. She was also able to observe bruising on the lower part of
his back and scratches around his ankles or lower extremities. Dr. Demetris
examined Q.J. and ran tests, but she was not able to speak with Q.J.’s parents
because they were unavailable. Q.J. provided Dr. Demetris with very little
history. However, based on Q.J., Jr.’s history and the statements Mother made
to Dr. Demetris at the time Dr. Demetris examined Q.J., Jr., Dr. Demetris was
concerned about Q.J. Q.J. did not specifically talk to Dr. Demetris about
exercise, but Q.J. told the admitting team that his exercise involved “several
hundred repetitions of certain exercise movements and lasting several hours.”
Id. at 139. Dr. Demetris ran diagnostic tests on Q.J. Q.J.’s prealbumin levels
were on “the low end of normal, being 18 in our lab, 18 being the low end of
normal, 17 being considered abnormal, and his was 18.” Id. He also had
elevated liver function tests and low Vitamin D levels. Based on the tests, Dr.
Demetris diagnosed Q.J. with moderate to severe malnutrition with no
underlying medical condition that could explain it. Dr. Demetris was also
concerned about the bruises she found on Q.J. based on the history provided by
Q.J., Jr. Q.J. was discharged from the hospital after a few days. On September
14, Q.J., Jr. was discharged from the hospital after Dr. Demetris saw significant
improvement in his weight. On that date, he weighed eighty-seven pounds and
twelve ounces.
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[12] In the meantime, on August 30, 2016, DCS filed CHINS petitions for each of
the Children. On that same day, the trial court held a detention hearing. After
the hearing, the trial court found that Q.J., Jr. should continue to remain
outside of Mother and Father’s home, and the trial court ordered the removal of
the five other children. Also on August 30, the State charged both Mother and
Father with two counts of neglect of a dependent, as Level 6 felonies, based on
the Boys’ malnutrition. The State later added a third charge against Mother
and Father for neglect of a dependent resulting in bodily injury, as a Level 5
felony, due to Q.J., Jr.’s severe malnutrition.
[13] On November 17, Dr. Sarah Szerlong conducted a clinical interview and
assessment of Bre.J. and Ba.J. After the assessments, Dr. Szerlong completed a
report for each of the girls. In her report for Bre.J., Dr. Szerlong wrote that
Bre.J. had reported that “her parents would make her brothers, [Q.J., Jr. and
Q.J.,] work ‘really hard and do chores until 4 in the morning.’” Ex. at 108.
She had further stated that “her parents would sometimes make her brother run
around outside and would smack him up on the head.” Id. Further, Bre.J.
reported that her father “becomes angry easily and has a history of smacking
her brother.” Id. Bre.J. had also reported “witnessing her father hit her
brothers and engage in corporal punishment, and witnessing verbal arguments
between her parents.” Id. at 113. In her report for Ba.J., Dr. Szerlong reported
that Ba.J. had “shared that her parents have a history of domestic disputes, one
where her mother reportedly held a knife and scissors up to her father’s neck.
She acknowledged feeling fearful when witnessing this and other domestic
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violence between her parents.” Id. at 118. Ba.J. had also reported that Father
“has ‘whooped’ her on several occasions.” Id. Ba.J. had “reported incidents of
domestic violence between her parents occurred multiple times.” Id. at 119.
Ba.J. had also “stated she has seen her mother attempt to kill her brother, [Q.J.,
Jr.].” Id. at 122. Dr. Szerlong’s report indicated that “[Ba.J.] is struggling with
a variety of depression, anxiety, and trauma[-]related symptoms.” Id. at 125.
[14] In January 2017, Mother requested an independent medical examination of
Q.J., Jr. and Q.J. Dr. Amanda Beach examined Q.J. on January 23, and she
examined Q.J., Jr. on January 25. For her appointment with Q.J., Jr., Dr.
Beach did a complete physical examination and reviewed the discharge notes
from the hospital. By the time Dr. Beach examined Q.J., Jr. in January, he had
gained thirty-one pounds and had grown two inches since he was discharged
from the hospital. When Dr. Beach examined Q.J. in January, he had gained
six pounds since he was discharged from the hospital.
[15] On March 3 and March 7, 2017, the trial court held a fact-finding hearing on
the CHINS petitions. As a preliminary matter, DCS moved to admit the
clinical interview assessments for Bre.J. and Ba.J. Both Mother and Father
stated that they did not object, and the trial court admitted the assessments as
evidence. During the hearing, DCS presented as evidence the testimony of
Officer Lytle; Officer Vanderbeck; Detective Zellers; Dr. Demetris; Dr. Beach;
Emily Sabau, Q.J., Jr.’s therapist; Lill; FCM Amanda O’Connell; Bertha Push,
the therapist for Bre.J. and Ba.J,; and Robin Allen, the therapist for Bri.J. and
Bro.J.
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[16] Dr. Demetris testified during the hearing about her examination and diagnosis
of Q.J., Jr. The attorney for DCS asked Dr. Demetris what Q.J., Jr. said was
the cause for his malnourishment. Father objected on hearsay grounds, but the
trial court overruled his objection. Dr. Demetris testified that she did not
specifically ask Q.J., Jr. what had caused his malnourishment but, instead,
asked questions about what he ate and what he was offered, but “he gave a
history of a fairly limited amount of food availab[le] to him.” Tr. Vol. II at 97.
Dr. Demetris further testified that Q.J., Jr. “advised that he was restricted from
having access to food as a form of punishment” and “that he would be
restricted from having lunch, for example, if he was in trouble on that day.” Id.
Dr. Demetris further testified that Mother gave a history about the amount of
food that Q.J., Jr. was provided that was very similar to the history Q.J., Jr.
gave.
[17] Dr. Demetris testified that, at almost fifteen years old, Q.J., Jr. weighed
approximately seventy-two pounds. She testified that the “average weight for a
child of that age is closer to approximately, maybe 130 to 140 pounds.” Id. at
108. She also testified that, based on the history Q.J., Jr. gave her regarding his
food intake, she concluded that he was eating “less than 50 percent of what was
calculated as would be what he would need for his calories for growth.” Id. at
113-14. She further testified that she “was not able to find any underlying
medical condition that would explain his malnourishment.” Id. at 114. Dr.
Demetris testified that “it would take weeks to months for [Q.J., Jr.] to have
that degree of malnourishment.” Id. at 115. She further stated that “he would
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be at risk for significant negative health complications, including death, if he
continued to have that degree of malnutrition in the comings weeks to months.”
Id. Dr. Demetris testified that Mother did not believe Q.J., Jr. was
malnourished, even after Dr. Demetris spoke with her “at some length, making
an attempt to help her understand why it was my medical diagnosis that he had
severe malnutrition[.]” Id. at 125.
[18] Dr. Demetris testified regarding her examination and diagnosis of Q.J. She
testified that when Q.J. was admitted to the hospital, he was significantly below
the growth chart for his weight and he was in the 50th percentile for height.
She testified that Q.J.’s level of malnutrition “would have taken at least weeks
to months.” Id. at 140. She further testified that had “he continued to have that
degree of malnutrition he was at risk for medical complications, including
death[,] in the weeks to months in the future.” Id. She also testified that the
malnutrition and the bruises to the back “would not normally be present
without an act or omission by the parents.” Id. at 141. However, she testified
that she could not say for certain that the bruises and scrapes were caused by
Mother or Father. Q.J. weighed sixty-two pounds on August 30, 2016. On
January 23, 2017, he weighed sixty-eight pounds and 6.4 ounces.
[19] DCS also presented the testimony of Lill, a FCM. Lill testified that Mother had
stated that Q.J., Jr. had ruined their lives. Lill further testified that Mother had
“stated they use exercise as a discipline method. They take away snacks. And
at the time they were taking away his clothes. They thought that it was a good
punishment so that he wouldn’t run away. He was only allowed to wear his
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underwear.” Tr. Vol. III at 61. Lill testified that she did not recommend
returning the Children to the care of Mother and Father “[b]ased on everything
that [Q.J., Jr.] was telling me, how severely malnourished [Q.J.] and [Q.J., Jr.]
were, the physical abuse, and the marks and bruises on both children, the
behaviors of the other children, and specifically the children, what they had to
say about [Q.J., Jr.], they all called him evil and they hated him, etcetera.” Id.
at 86. In regards to the Girls, Lill testified as to what made her decide that they
should not go back to their parents. She stated:
So we’ll start with [Bri.J.]. She called . . . [Q.J., Jr.] evil multiple
times in [her forensic interview]. She stated, and she’s five. And
she stated that the eating situation and that [Q.J., Jr.] wasn’t
allowed to eat with them and [Q.J., Jr.] actually had to eat
upstairs so that he wouldn’t steal their food. And that shocked
me because it was a five-year-old. [Bre.J.] said the same thing.
She mentioned all the discipline that the parents made [Q.J., Jr.]
do and her and [Q.J.]. She also talked about the food restrictions
and them stealing food. And [Ba.J.], she mentioned how awful
[Q.J., Jr.] was and the discipline and stuff like that so.
Id. at 89-90.
[20] Amanda O’Connell also testified. She was the FCM who was assigned to the
case at the end of December 2016. O’Connell testified that she had
recommended services, including home-based therapy for both parents,
psychological evaluation for both parents, and Father Engagement for Father.
However, those referrals were discharged due to noncompliance. She testified
that she was not able to recommend that the Children return to the care of their
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parents out of concerns for their safety. She testified that “for the safety of the
children the parents will need to engage in services. The children need to
continue with their therapy to address their trauma.” Id. at 120.
[21] Bertha Rush is a home-based therapist who has worked with Bre.J. and Ba.J.,
who are eleven and eight years old, since the end of October 2016. She also
testified at the fact-finding hearing. She testified that she works with Bre.J. and
Ba.J. to address “some trauma that’s been reported to me by the girls.” Id. at
127. Rush testified that she would not recommend that Bre.J. and Ba.J. return
to the care of their parents because “they still have quite a bit to work through.
It’s also been told to me by one of the girls that they’re not ready to go home
yet.” Id. at 129.
[22] Finally, DCS presented the testimony of Robin Allen. Allen is a home-based
therapist who has worked with Bri.J., and Bro.J., who are five and three years
old, since early November 2016. Allen testified that she would not recommend
that Bri. J. and Bro.J. return to the care of their parents at this time. She further
testified that Bro.J. “talk[s] about being afraid of visits and going home, things
like that.” Id. at 143.
[23] Father presented the testimony of William Ellery. Ellery coaches Little League
baseball for Carmel Dad’s Club, and Q.J. was on his team in the spring of 2015.
Ellery testified that “the relationship with [Q.J.] and his dad was just, it was
always good.” Id. at 46. He further testified that the relationship between Q.J.
and Father was always positive and that there was a lot of interaction between
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Father, Q.J., and Q.J., Jr. that Ellery said was “a really nice family situation to
see.” Id. at 47. Neither Mother nor Father testified. On March 28, 2017, the
trial court entered its orders, which contained findings and conclusions and
which adjudicated the Children to be CHINS. This appeal ensued.
Discussion and Decision
Issue One: Testimony of Dr. Demetris
[24] Father first contends that the trial court abused its discretion when it allowed
Dr. Demetris to testify about the statements Q.J., Jr. made to her regarding the
source of his bruises and malnutrition because the statements were hearsay. A
trial court’s decision regarding the admission of evidence is squarely within that
court’s discretion, and we afford it great deference on appeal. VanPatten v. State,
986 N.E.2d 255, 260 (Ind. 2013). We will not reverse such a decision unless it
is clearly contrary to the logic and effect of the facts and circumstances of the
case or misinterprets the law. Id. A hearsay statement is one that is not made
by the declarant while testifying at the trial or hearing and that is offered to
prove the truth of the matter asserted. Ind. Evidence Rule 801(c). Hearsay
statements are generally not admissible unless they fall within an exception
outlined in the Indiana Rules of Evidence. Evid. R. 802.
[25] Indiana Evidence Rule 803(4) permits statements made for the purpose of
medical diagnosis or treatment to be admitted into evidence. The rule requires
that the “statements must be ‘made by persons who are seeking medical
diagnosis or treatment and describing medical history, or past or present
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symptoms, pain, sensations, or the inception or general character of the cause
or external source thereof insofar as reasonably pertinent to diagnosis or
treatment.’” VanPatten, 986 N.E.2d at 260 (quoting Evid. R. 803(4)). The
“exception is grounded in a belief that the declarant’s self-interest in obtaining
proper medical treatment makes such a statement reliable enough for admission
at trial[.]” Id.
This belief of reliability, though, necessitates a two-step analysis
for admission under Rule 803(4): First, “is the declarant
motivated to provide truthful information in order to promote
diagnosis and treatment,” and second, “is the content of the
statement such that an expert in the field would reasonably rely
on it in rendering diagnosis or treatment.”
Id. (quoting McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996)).
[26] Father specifically contends that Q.J., Jr.’s statements to Dr. Demetris were
hearsay because “the record is devoid of testimony to establish that Q.J.[,] Jr.
knew that he was talking to a professional for the purposes of making a
diagnosis” and because “it is not readily apparent that Q.J.[,] Jr. was motivated
to tell the truth.” Appellant’s Br. at 14. To support his contention, Father relies
on Bartrum v. Grant County Office of Family and Children (In re W.B.), 772 N.E.2d
522 (Ind. Ct. App. 2002). In that case, the trial court admitted statements that
children had made to their therapists under Indiana Evidence Rule 803(4). On
appeal, this Court concluded that the statements made by the children met the
second prong of the test found in McClain, but we held that the record was
“devoid of any evidence . . . that the children, in making these statements, were
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‘motivated to provide truthful information in order to promote diagnosis and
treatment.’” Id. at 533 (quoting McClain, 675 N.E.2d at 331). In particular, we
observed that the testimony of the children’s therapist “clearly portrayed the
young children as mentally and emotionally incompetent, and no doubt totally
unaware of [the doctor’s] professional purpose.” Id. Further, we stated:
“Where that inference is not obvious, as in this case involving a young child
brought to treatment by someone else, there must be evidence that the declarant
understood the professional’s role in order to trigger the motivation to provide
truthful information.” Id. (quoting McClain, 675 N.E.2d at 331) (emphasis
added). Thus, we held that the doctor’s testimony did not meet the first prong
of the test.
[27] In the present case, Father asserts that, like in In re W.B., the “record is devoid
of testimony to establish that Q.J.[,] Jr. knew that he was talking to a
professional for the purposes of making a diagnosis or treatment.” Appellant’s
Br. at 14. But in In re W.B., the children who made the statements to the
therapist were young. The oldest child in that case was five years old when the
children were determined to be CHINS. Further, the record contained evidence
that the children were mentally incompetent. Because the children were young
and otherwise mentally incompetent, we held that the inference that they were
motivated to provide truthful information in order to promote diagnosis and
treatment was not obvious. Id.
[28] In contrast, here, Q.J., Jr. was not a young child. Q.J., Jr. made his statements
to Dr. Demetris while he was in the hospital on August 25, 2016, which was
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approximately three weeks prior to his fifteenth birthday. Based on Q.J., Jr.’s
age and the fact that he made the statements to a doctor while in a hospital, the
inference that he knew he was talking to a medical professional and that he was
motivated to provide truthful information is obvious. Therefore, Dr. Demetris’
testimony about Q.J., Jr.’s statements fell within the hearsay exception under
Evidence Rule 803(4), and the trial court did not abuse its discretion when it
admitted those statements.
Issue Two: Sufficiency of the Evidence
[29] Father next contends that there was insufficient evidence to sustain the trial
court’s determination that the Children are CHINS. Our Supreme Court has
recently reiterated our standard of review.
When reviewing a trial court’s CHINS determination, we do not
reweigh evidence or judge witness credibility. In re S.D., 2
N.E.3d 1283, 1286 (Ind. 2014). “Instead, we consider only the
evidence that supports the trial court’s decision and [the]
reasonable inferences drawn therefrom.” Id. at 1287 (citation,
brackets, and internal quotation marks omitted). When a trial
court supplements a CHINS judgment with findings of fact and
conclusions law, we apply a two-tiered standard of review. We
consider, first, “whether the evidence supports the findings” and,
second, “whether the findings support the judgment.” Id.
(citation omitted). We will reverse a CHINS determination only
if it was clearly erroneous. In re K.D., 962 N.E.2d 1249, 1253
(Ind. 2012). 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.” Yanoff v. Muncy, 688 N.E.2d 1259, 1262
(Ind. 1997) (citation omitted).
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Gr.J. and J.J. v. Ind. Dep’t. of Child Serv. (In re D.J.), 68 N.E.3d 574, 577-78 (Ind.
2017) (alterations in original).
The Boys
[30] Father asserts that “it was erroneous to find that there was sufficient evidence to
find that Father either physically abused or malnourished the children.”
Appellant’s Br. at 17. DCS alleged that the Boys were CHINS pursuant to
Indiana Code Section 31-34-1-1, which provides that a child is a child in need
of services 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 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. Our
Supreme Court has interpreted this provision to require “three basic elements:
that the parent’s actions or inactions have seriously endangered the child, that
the child’s needs are unmet, and (perhaps most critically) that those needs are
unlikely to be met without State coercion.” J.B. v. Ind. Dep’t. of Child. Serv. (In re
S.D.), 2 N.E.3d 1283, 1287 (Ind. 2014).
[31] We agree with DCS that the evidence most favorable to the trial court’s
findings supports its conclusion that the Boys were CHINS pursuant to Indiana
Code Section 31-34-1-1. DCS introduced the following evidence at the fact-
finding hearing:
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• Officer Lytle’s testimony that Q.J., Jr. had two backpacks full of stolen
food and that he was very skinny when officers found him.
• Officer Vanderbeck’s testimony that Q.J., Jr. looked like he just stepped
out of a World War II prison camp.
• Detective Zellers’ testimony to the following:
• Q.J., Jr. said that food was being withheld.
• Q.J., Jr. did not have the appearance of being a well-nourished child
and he appeared emaciated.
• Mother told her that Q.J., Jr. was ruining their lives and that he was a
kleptomaniac because he stole food from their pantry and from
dumpsters.
• Dr. Demetris’ testimony to the following about Q.J., Jr.:
• He was underweight, he was small for his age, and he had laboratory
findings that were consistent with malnourishment.
• He weighed only seventy-two pounds while the average weight for a
child of that age is approximately 130 to 140 pounds.
• He said that he was restricted from having access to food as a form of
punishment.
• Mother gave a history about the amount of food that Q.J., Jr. was
provided that was very similar to the history Q.J., Jr. gave.
• Mother stated that Q.J., Jr. would steal food and eat food out of trash
cans.
• She could not find any underlying medical condition that would
explain his malnourishment, that it would take weeks to months for
him to have that degree of malnourishment, and that he would be at
risk for significant negative health complications if he continued to
have that degree of malnutrition in the near future.
• Mother did not believe Q.J., Jr. was malnourished, even after Dr.
Demetris spoke with her at length in an attempt to help her
understand why it was her medical diagnosis that he had severe
malnutrition.
• Dr. Demetris’ testimony to the following about Q.J.:
• He had also been admitted to the hospital for malnutrition.
• His prealbumin levels were on the low end of normal, and he had
elevated liver functions tests and low Vitamin D levels.
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• It would have taken at least weeks to months to have his degree of
malnutrition, there was no underlying medical condition that could
explain Q.J.’s malnutrition, he would be at risk for medical
complications in the near future if he continued to have that degree of
malnutrition.
• Dr. Beach’s testimony that she agreed with Q.J., Jr.’s diagnosis of
malnutrition because his body mass index was less than 1st percentile
and because his labs were low.
• Dr. Beach’s testimony that she agreed with Q.J.’s diagnosis of
malnutrition because his body mass index was less than the 1st
percentile.
• Sabau’s testimony that Q.J., Jr. has been diagnosed with post-traumatic
stress disorder and that he told her that he was forced to walk around the
house in nothing but underwear, forced to exercise all day, hardly ever
got to eat, and that he was punished if he tried to steal food from
somewhere in the house.
• Lill’s testimony to the following:
• When she spoke with the five Children on August 27, they said they
had not yet eaten that day.
• Mother stated that Q.J., Jr. had ruined their lives and Mother talked
about how they discipline Q.J., Jr. using exercise, taking away snacks,
and taking away his clothes so he was only allowed to wear his
underwear.
• Q.J., Jr. he was supposed to be 15 years old soon and he looked like a
9-year-old, he was sickly looking, and he had bruises along his spine.
• Q.J. was so thin you could see his bones and his eyes were all sunken
in and red. He also had similar bruises to Q.J., Jr.
[32] That evidence demonstrates that the Boys had been deprived of food to the
point of severe malnourishment. That evidence shows that the parent’s actions
or inactions have seriously endangered the Boys, that the Boys’ needs are
unmet, and that those needs are unlikely to be met without State coercion. See
In re S.D., 2 N.E.3d at 1287. We therefore hold that sufficient evidence
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supports the trial court’s findings, and its findings support its conclusions with
respect to Indiana Code Section 31-34-1-1. 3
[33] Father also asserts that the trial court erred when it relied on Dr. Demetris’
testimony that Q.J., Jr. and Q.J. were malnourished and had been physically
abused. This is simply a request that we reweigh the evidence which we cannot
do. See In re D.J., 68 N.E.3d at 577.4
The Girls
[34] Father also asserts that the court erred when it found that the Girls are CHINS
because there was insufficient evidence to show “that their physical and
emotional conditions were seriously impaired or seriously endangered by their
exposure to their parents and home life.” Appellant’s Br. at 28. He further
asserts that DCS’ witnesses could only testify as to “what could happen to the
four female children, rather than testifying to existing neglect or physical
abuse.” Id. (emphasis in original).
3
The trial court also adjudicated the Boys to be CHINS pursuant to Indiana Code Section 31-34-1-2.
Because we hold that there is sufficient evidence to support the trial court’s adjudication of the Boys as
CHINS pursuant to Indiana Code Section 31-34-1-1, we need not decide whether there was sufficient
evidence to support the trial court’s finding that the Boys are CHINS under Indiana Code Section 31-34-1-2.
4
Father also contends that Dr. Demetris erred in relying on statements that Q.J., Jr. made to her when she
determined that Q.J., Jr. was only receiving fifty percent of his recommended caloric intake. Father asserts
that it was error for her to rely on the statements because Q.J., Jr. was unable to provide specific portion sizes
and because there would be some error in the calculation. However, it is clear from the record that Dr.
Demetris did not only rely on Q.J., Jr.’s statements. Dr. Demetris also spoke with Mother who gave a
similar history regarding the amount of food Q.J., Jr. ate. Dr. Demetris also reviewed the laboratory data,
which supported her diagnosis of malnutrition.
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[35] DCS alleged that the Girls were CHINS pursuant to Indiana Code Section 31-
34-1-1, which again requires 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. See In re S.D., 2 N.E.3d at 1287.
[36] We agree with DCS that the evidence most favorable to the trial court’s
findings supports its conclusion that the Girls were CHINS pursuant to Indiana
Code Section 31-34-1-1. DCS introduced the following evidence at the fact-
finding hearing:
• The clinical interview and assessment of Bre.J., in which Bre.J. reported
that her parents make her brothers work hard and do chores until 4:00
A.M., that Father has a history of smacking her brother, that she has
witnessed Father hit her brother, and that she has witnessed verbal
arguments between Mother and Father.
• The clinical interview and assessment of Ba.J., in which Ba.J. reported
that her parents have a history of domestic disputes, including one
incident where her mother reportedly held a knife and scissors up to her
father’s neck; that she is fearful when she witnesses the domestic violence
between her parents; that Father has whooped her on several occasions;
that she has seen Mother attempt to kill Q.J., Jr.; and that she is
struggling with depression, anxiety, and trauma-related symptoms.
• Lill’s testimony to the following:
• When she spoke with five of the Children on August 27 at 3:00 PM,
they said they had not yet eaten that day.
• Bre.J. said she had been getting whooped.
• Rush’s testimony that:
• She works with Bre.J. and Ba. J. to address trauma that the two girls
have reported to her.
• The two girls told her they were not ready to go home.
• Bre.J. reported that there were some very physical punishments and
that food was removed as a punishment.
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• Bre.J. said there was a lot of arguing in the home.
• Bre.J. and Ba.J. told her that their siblings were deprived of food and
that there was physical abuse.
• Bre.J. and Ba.J. both said that they were encouraged to participate in
the physical abuse of a sibling when that sibling was in trouble.
• Allen’s testimony that Bro.J. is afraid of visits and of going home.
[37] Thus, the evidence most favorable to the trial court’s findings shows that at
least two of the Girls have been physically abused, that all of the Girls have
been exposed to domestic violence between Mother and Father that has
occurred in the home, that the Girls were exposed to the abuse and extreme
punishment of the Boys, and that the Girls were encouraged to participate in
the violence against a sibling when that sibling was in trouble. The evidence
supports the trial court’s findings that the parent’s actions or inactions have
seriously endangered the Girls, that the Girls’ needs are unmet, and that those
needs are unlikely to be met without State coercion. See In re S.D., 2 N.E.3d at
1287. And those findings support the trial court’s judgment. In light of the
evidence most favorable to the judgment, we cannot say that the trial court’s
adjudication of the Girls as CHINS is clearly erroneous.5
5
In its brief on appeal and in its appendix, DCS provided evidence that Father pleaded guilty to one count
of neglect of a dependent, as a Level 6 felony, and one count of neglect of dependent resulting in bodily
injury, as a Level 5 felony. DCS argues that “[t]he Indiana Supreme Court and this Court ha[ve] held that
parties are required to let this Court know of ‘post-judgment events which may affect the outcome of a
pending appeal.’” Appellee’s Br. at 33 (quoting In re C.B.M., 992 N.E.2d 687, 693 (Ind. 2013)). And DCS
asserts that Father’s guilty plea would affect the outcome of his appeal because it contradicts Father’s
argument that there is insufficient evidence to support the trial court’s finding that the Children are CHINS.
In his reply brief, Father claims DCS’ inclusion of his guilty plea was improper because it was not part of the
record on appeal, DCS failed to file the proper motions to bring the additional evidence before this Court,
and because the inclusion does not render his appeal moot. However, the error, if any, in the inclusion of
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Issue Four: Effective Assistance of Counsel
[38] Finally, Father asserts that he was denied the effective assistance of counsel.
Specifically, he claims that, following the CHINS determinations, his court-
appointed counsel should have filed a motion for relief from judgment under
Indiana Trial Rule 60(B)(2) because the psychological evaluation of Q.J. was
not conducted until June 9, 2017, and the report was not filed with the trial
court until August 14, 2017, almost five months after the trial court issued its
order that adjudicated the Children to be CHINS on March 28, 2017.
[39] Indiana Code Section 31-34-4-6 entitles Father to an attorney at each court
proceeding on a CHINS petition. But Father was represented by counsel in the
trial court at each proceeding on the CHINS petitions. And Father has not
directed us to any case law that says that that statute creates a cause of action
for ineffective assistance of counsel in a CHINS proceeding, or under what
standard such a claim might be determined.
[40] In any event, we need not decide whether this claim is available to him for the
purposes of this appeal because we conclude that, had his attorney filed a
motion for relief from judgment, it would not have been successful. Indiana
Trial Rule 60(B)(2) provides relief from judgment for newly discovered
evidence. “Relief from judgment based on newly discovered evidence requires
a showing that the newly discovered evidence is material, is not merely
Father’s guilty plea is harmless. As discussed above, there is ample evidence in the record to support the trial
court’s findings that the Children are CHINS without considering Father’s guilty plea.
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cumulative or impeaching, was not discoverable by due diligence, and would
reasonably and probably alter the result.” Outback Steakhouse of Fla., Inc. v.
Markley, 856 N.E.2d 65, 85 (Ind. 2006) (emphasis added).
[41] Father asserts that some of the statements Q.J. made in his psychological
evaluation “are in direct contrast to the testimony of Dr. Demetris regarding
statements made by Q.J.[,] Jr.” Appellant’s Br. at 30. In essence, Father claims
that Q.J.’s psychological evaluation could be used to impeach Dr. Demetris.
Because the newly discovered evidence would merely be impeaching, Father
would not have been entitled to relief from judgment. See Outback Steakhouse,
856 N.E.2d at 85. Because a Trial Rule 60(B)(2) motion would have failed, he
cannot show that he was denied the effective assistance of counsel.
[42] In sum, we hold as follows: the trial court did not abuse its discretion when it
allowed Dr. Demetris to testify about the statements Q.J., Jr. made to her
regarding the source of his bruises and malnutrition; there was sufficient
evidence to support the trial court’s finding that the Children are CHINS; and
Father was not denied the effective assistance of counsel. As such, we affirm
the trial court’s adjudication of the Children as CHINS.
[43] Affirmed.
Mathias, J., and Barnes, J., concur.
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