In the Matter of: A.A. and H.A. (Children in Need of Services) A.S. (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 31 2020, 10:24 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
Nancy A. McCaslin Curtis T. Hill, Jr.
McCaslin & McCaslin Attorney General of Indiana
Elkhart, Indiana Natalie F. Weiss
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: A.A. and H.A. January 31, 2020
(Children in Need of Services) Court of Appeals Case No.
A.S. (Mother), 19A-JC-1851
Appeal from the Elkhart Circuit
Appellant,
Court
v. The Honorable Michael A.
Christofeno, Judge
Indiana Department of Child The Honorable Deborah Domine,
Services, Magistrate
Appellee. Trial Court Cause Nos.
20C01-1905-JC-63
20C01-1905-JC-64
Brown, Judge.
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[1] A.S. (“Mother”) appeals the trial court’s order adjudicating A.A. and H.A. to
be children in need of services (“CHINS”). We affirm.
Facts and Procedural History
[2] A.A. was born in September 2015, and H.A. was born in February 2019 (A.S.
and H.A., together, the “Children”). In April 2019, law enforcement arrived at
Mother’s home and received information that D.A. (“Father”) had shoved
Mother, causing her to hit her head on the counter or microwave. The officer
noticed things were thrown about the home. Father was taken into custody,
and Mother later bonded him out of jail. Police responded to a report of
domestic violence on May 8, 2019, and found Mother crying and with a red mark
on her cheek which had started to swell. Mother stated Father had come home
intoxicated, urinated on the floor, struck her, smashed her car windows, and
slashed a tire.
[3] On May 20, 2019, the Indiana Department of Child Services (“DCS”) filed a
petition alleging the Children were CHINS. The next day, the court issued a no
contact order prohibiting Father from having contact with Mother and the
Children. In July 2019, the court held a factfinding hearing at which it heard
testimony from several law enforcement officers, a DCS intake officer, and
Mother. Mother indicated she had placed a padlock on her apartment door,
obtained a protective order, had found a babysitter, and worked no less than
thirty-two hours a week. She indicated the padlock had been on her apartment
door for about three weeks and Father had not visited her home since she
obtained the protective order.
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[4] The trial court entered an order finding the Children were CHINS and
providing in part:
1. [Mother] testified that she has seen the adverse effects of the domestic
violence in her household on of one her children. She testified [A.A.]
is quick to anger, frequently throws objects, throws herself to the
floor, and [she] cries a lot.
*****
4. [Mother] described that she and her children moved to Goshen,
Indiana in March of 2018, to be with [Father]; she said that in recent
months she has called the police “about 50 times” to report problems
in her home involving violence perpetrated by, and drug use by
[Father].
5. Goshen Police Sergeant Curtis Weldy was called to the home on
April 14, 2019. He said that on that day there had been an argument
between [Mother] and [Father] that escalated into a physical
altercation between [them]. Officer Weldy stated that the domestic
violence in the home occurred in the presence of at least one of the
children. He said that [A.A.] walked into the room where the
altercation was going on, and [H.A.] was in a bouncer in the
adjoining room.
*****
7. [Father] went to jail on April 14, 2019, as the result of the incident of
alleged domestic violence, and [Mother] acknowledges that she
subsequently bonded him out of jail and he returned home.
8. [Mother] testified that she bonded [Father] out of jail because he said
he was going to do better and she wanted to believe him.
9. On May 8, 2019, police were called to the home . . . once again on a
report of domestic violence.
10. Goshen Police Officer Ryan Adams testified that when he arrived at
the home, he found [Mother] was crying, she was angry and had a
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red mark on her cheek that had started to swell. [Mother] told police
that [Father] had come home intoxicated, urinated on the floor of the
home, struck her, smashed the windows on her car and slashed, at
least, one tire on the vehicle. Officer Adams explained that he
discussed options to break the cycle of domestic violence with
[Mother] and [she] declined the help offered.
11. Officer Ryan described that less than 24 hours after [Mother] had
reported the domestic violence in her home on May 8, 2019, she
called police again. He said that he went to the home again, and
[Mother] recanted her statement that she had been battered by
[Father] and said that she made the story up. Once again, [Mother]
said that she did not need help.
12. On the date of the Fact-finding Hearing, [Mother] changed her story
about the May 8, 2019 incident again; at the Fact-finding Hearing,
[Mother] admitted that she had lied to police when she recanted her
story, she admitted that she had been struck and said that she now
regrets the fact that she recanted. She explained that she recanted her
story and said that she was not battered by [Father] because she had
spoken with [him] for about five hours and he said that he wanted to
change and she believed him.
13. After the May 8, 2019 report was recanted, police were called to the
home . . . again on May 16, 2019. Goshen Police Officer Zachary
Miller stated he arrived at the home . . . and found [Father] outside;
he said that [Father] appeared to be using some sort of illegal
narcotic. According to police, [Mother] had called the police for help
on that day, but [Father] told police that he was the victim and that
he had been kicked by [Mother] in the groin.
14. [Mother] testified that she called the police on May 16, 2019, because
[Father] came home yelling, and appeared to be intoxicated. She
said that she believed that he was under the influence of drugs
because he had stolen her medication.
15. Both [Father] and [Mother] have a history of drug use; the evidence
supports that [Father] is currently struggling with addiction, but
[Mother] has been sober for more than a year.
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*****
17. At the Fact-finding Hearing [Mother] testified that she has put a
padlock on her door and obtained an ex-parte protective order to
keep [Father] away from the home; she was firm in stating that she
does not need DCS involvement to keep [him] out of the home and
keep her family safe.
18. But the family history supports the conclusion that [Mother] is likely
to change her mind again and place her children back in harms’ way.
19. [Mother] described [Father] as an “ass hole,” but testified that she
has been in a relationship with [him] since 2014.
20. [Mother] acknowledged that she and her family have had a history of
domestic violence and a history with the DCS in Steuben County.
The DCS cases began in Steuben County in 2015. [Mother] admitted
that [A.A.] was previously removed from her care, and that [A.A.]
was just returned to her months before the family moved to Goshen
to be with [Father].
*****
22. [DCS intake officer Tana] Parson said that [Mother] and [Father]
have a history of violence, and reconciliation. She said that children
in the household have been exposed to domestic violence for several
years.
23. Parson acknowledged that [Mother] has recently taken steps to keep
[Father] out of the family home, but also opined that that does not
eliminate concerns for the safety of the children because [Father] has
been ordered to stay out of the home repeatedly in the past and he
has come back multiple times and [Mother] has let him back in.
*****
25. [Mother] testified that she lives the cycle of abuse.
26. At this moment [Mother] has taken steps to separate her family from
[Father], but her long history with [him] demands caution because
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the history supports the conclusion that the current resolve to
separate from [him] is part of a cycle of abuse that [Mother] lives.
27. Moreover, the Court places very little weight on [Mother’s]
declaration that she will keep [Father] from her home and keep her
children safe; [Mother] admitted in court that she lied to police to
protect [Father] and, therefore, her credibility is suspect.
*****
29. At this moment, while [Mother] has taken important steps to keep
[Father] out of the family home today, she cannot protect her
children from domestic violence and the harm that she has seen that
has resulted from domestic violence in the family home.
*****
32. Here, [Mother] testified that she has seen the adverse impact of
domestic violence on the behaviors of her three year old child. The
evidence supports that [Father] has perpetrated violence in the family
home in the presence of at least one of the children in the home, and
that [Mother], through her omissions, is unable to keep the children
safe; she has failed to break the cycle of abuse, she has refused help
twice during the course of this most recent DCS investigation, and
she cannot keep [Father] out of the family home for a sustained
period of time.
Appellant’s Appendix Volume II at 106-109. The court issued a dispositional
order providing the Children were to be placed with Mother under the
supervision of DCS and requiring Mother to participate in services. (110)
Discussion
[5] Mother claims the trial court erred in concluding the Children were CHINS.
She argues she took steps to keep Father out of the home by placing a padlock
on the apartment door and filing for a protective order and, at the time of the
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hearing, the domestic violence in her relationship with Father did not exist and
the padlock had been on the door for approximately three weeks. DCS
maintains the court recognized Mother obtained a padlock and restraining
order but ultimately placed greater weight on her history and did not find
Mother’s testimony she would keep Father away credible.
[6] We do not reweigh the evidence or judge the credibility of witnesses and
consider only the evidence which supports the trial court’s decision and
reasonable inferences drawn therefrom. In re S.D., 2 N.E.3d 1283, 1286-1287
(Ind. 2014), reh’g denied. We apply the two-tiered standard of whether the
evidence supports the findings and whether the findings support the judgment.
Id. Ind. Code § 31-34-1-1 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:
(A) when the parent, guardian, or custodian is financially able
to do so; or
(B) due to the failure, refusal, or inability of the parent,
guardian, or custodian to seek financial or other reasonable
means to do so; and[1]
1
Prior to July 1, 2019, Ind. Code § 31-34-1-1(1) provided:
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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.
The CHINS statute does not require a court to wait until a tragedy occurs to
intervene. In re A.H., 913 N.E.2d 303, 306 (Ind. Ct. App. 2009). Rather, a
child is a CHINS when he or she is endangered by parental action or inaction.
Id. The purpose of a CHINS adjudication is to protect children. Id.
[7] Mother does not challenge the trial court’s findings of fact, and the
unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.
Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver
of the argument that the findings were clearly erroneous), trans. denied. The
court heard extensive testimony from law enforcement officers, a DCS intake
officer, and Mother. The court found the police had been contacted on multiple
occasions due to domestic violence in the home, Mother had bonded Father out
of jail, at one point Mother recanted her report but later regretted she had
recanted, Mother had been in a relationship with Father since 2014, the family
has a history of domestic violence in Steuben County and a case began there in
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) . . . .
See Pub. L. No. 198-2019, § 8 (eff. Jul. 1, 2019).
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2015, A.A. had been previously removed from her care and returned to her
months before the family moved to be with Father, and Mother and Father
have a history of violence and reconciliation. The court placed very little
weight on Mother’s declaration she will keep Father from her home and keep
her children safe, noted she admitted lying to police to protect Father, and
found her credibility to be suspect. It observed the DCS intake officer’s
acknowledgment that Mother had recently taken steps to keep Father out of the
family home and her opinion that this did not eliminate concerns for the safety
of the children, as Father had been ordered to stay out of the home repeatedly
in the past, he came back multiple times, and Mother allowed this. According
to the trial court, while she had taken important steps to keep Father out of the
family home as of the hearing, Mother cannot protect the Children from
domestic violence, testified she lives the cycle of abuse, has failed to break the
cycle of abuse, has refused help twice during the DCS investigation, and cannot
keep Father out of the family home for a sustained period of time. To the
extent Mother invites us to reweigh the evidence and judge the credibility of
witnesses, we are unable to do so. See In re S.D., 2 N.E.3d at 1286.
[8] The court was able to assess Mother’s credibility and consider her efforts in
light of her prior actions and omissions, her relationship with Father, and her
ability to protect the Children. The court’s findings and adjudications of the
Children as CHINS are not clearly erroneous. We affirm the trial court’s order.
[9] Affirmed.
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[10] Baker, J., and Riley, J., concur.
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