In the Matter of: N.S. (Minor Child), Child in Need of Services, and C.S. (Father) v. The Indiana Department of Child Services (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Nov 04 2016, 9:45 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michelle Laux Gregory F. Zoeller
St. Joseph County Attorney General of Indiana
Public Defender’s Office
Robert J. Henke
South Bend, Indiana Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: November 4, 2016
N.S. (Minor Child), Child in Court of Appeals Case No.
Need of Services, 71A03-1603-JC-606
and Appeal from the St. Joseph Probate
Court
C.S. (Father),
The Honorable James N. Fox,
Appellant-Respondent, Judge
v. Trial Court Cause No.
71J01-1506-JC-339
The Indiana Department of
Child Services,
Appellee-Petitioner
Baker, Judge.
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[1] C.S. (Father) appeals the trial court’s order adjudicating Father’s child, N.S.
(Child), to be a Child in Need of Services (CHINS). Father argues that there is
insufficient evidence supporting the CHINS adjudication. Finding the evidence
sufficient, we affirm.
Facts
[2] Child was born to Father and J.B. (Mother) on November 20, 2012. On May
19, 2015, the Department of Child Services (DCS) received a report regarding
domestic violence between Father and Mother. On June 2, 2015, Mother met
with a DCS family case manager (FCM) and made the following statements to
the FCM: (1) Father has been diagnosed with schizophrenia and bipolar
disorder and was not taking his medication; (2) during the altercation in
question, her brother and Father got into a fight and Father tried to push
Mother and her brother out of the home; (3) Child was present during that
altercation; and (4) the previous Friday, she and Father had been in an
altercation.
[3] On June 12, 2015, the FCM met with Mother and Father. Father admitted that
he was having problems with his medication, did not get along with his
therapist, and was suffering from mental health issues as a result. The parents
agreed to participate in a program of Informal Adjustment (IA). But when the
parents returned to DCS on a later date to sign the IA, they refused to sign or
participate in services.
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[4] On July 8, 2015, DCS filed a petition alleging Child to be a CHINS, based on
multiple reports of domestic violence between Mother and Father while Child
was present as well as Father’s ongoing mental health issues. On July 9, 2015,
Child was removed from her parents’ care and custody and placed in relative
care with her maternal grandmother. The parents denied the allegations in the
CHINS petition and the trial court set a CHINS factfinding hearing for January
22, 2016.1
[5] At the factfinding hearing, the following evidence was introduced:
 The South Bend Police Department has been called to the parents’ home
“multiple times” for incidents of domestic violence. Tr. p. 18. Child was
present for all of these incidents. Id. at 24.
 On April 9, 2014, police were called to the home. Mother told the
responding officer that when she tried to leave the house, Father blocked
the door. He then “threw her to the ground,” held a lamp above her
head and threatened to beat her with it, attempted to hit her with a
broom and threw her to the ground again, put his arms around her neck
and held her down, and Child was “in the middle of the living[]room
screaming and crying.” Id. at 40. Father was arrested as a result of the
incident.
 On May 17, 2015, police were again called to the home. Responding
officers witnessed Father punching Mother’s brother in the face. Mother
told an officer that Father had threatened to snap her neck and to kill her,
that he had thrown a plate of food and the dish at her, and that the
previous Friday, another physical altercation resulted in bruising to
1
Father points out that the CHINS hearing was set significantly past the sixty-day deadline set forth in
Indiana Code section 31-34-11-1(a), but stops short of arguing that the CHINS finding should be reversed
because of this failure to meet the statutory deadline. Father has not provided us with the transcript of the
July 9, 2015, hearing, so we have no way of knowing whether he consented or objected to this hearing date.
Additionally, there is no evidence that he filed a motion to dismiss the case pursuant to Indiana Code section
31-34-11-1(d). Consequently, we decline to address this issue.
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Mother. Mother was afraid she would not be able to leave the home
safely, which is why she asked her brother to come over. Two officers
observed bruising on Mother’s wrists.
 Maternal grandmother testified that during the spring of 2015, Mother
called maternal grandmother, saying that Father “had a gun on her” and
was holding Child in his arms. Id. at 78-79. Maternal grandmother has
concerns about Mother and Child’s safety.
 On April 22, 2014, Father pleaded guilty to class A misdemeanor
intimidation.
 DCS employees testified that they were concerned for Child’s safety with
the ongoing domestic violence in the home. Because the parents refused
to engage in the IA, the FCM did not believe they would participate in
services without the coercive intervention of the court.
 Although the parents had been involved with DCS for over six months,
they had yet to participate in the services DCS had referred on their
behalf. Father was unsuccessfully discharged from services at the
YWCA because of his behavior and failed to participate in a batterer’s
intervention program.
On February 2, 2016, the trial court found Child to be a CHINS. On March 2,
2016, a dispositional hearing took place, and on March 3, 2016, the trial court
entered a dispositional decree. Among other things, Father is ordered to
complete a psychological evaluation and comply with all recommendations and
complete a batterer’s intervention program. Father now appeals.2
2
Mother is not participating in this appeal.
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Discussion and Decision
I. Standard of Review
[6] Father argues that there is insufficient evidence supporting the CHINS
adjudication. Our Supreme Court has explained the nature of a CHINS
proceeding and appellate review of a CHINS finding as follows:
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 N.R., 919 N.E.2d
102, 105 (Ind. 2010). We neither reweigh the evidence nor judge
the credibility of the witnesses. Egly v. Blackford County Dep’t of
Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). 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.
There are three elements DCS must prove for a juvenile court to
adjudicate a child a CHINS. DCS must first prove the child is
under the age of eighteen; DCS must prove one of eleven
different statutory circumstances exist that would make the child
a CHINS; and 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. In re N.E., 919
N.E.2d at 105.
In re K.D., 962 N.E.2d 1249, 1253–54 (Ind. 2012) (footnote omitted).
[7] Here, DCS alleged that the child was CHINS pursuant to Indiana Code section
31-34-1-1, which provides as follows:
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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.
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.” In re S.D., 2 N.E.3d 1283,
1287 (Ind. 2014).
II. Sufficiency
A. Findings
[8] In attacking the evidence supporting the CHINS finding, Father first focuses on
some of the findings made by the trial court in the CHINS order. He contends
that these specific findings are not supported by the evidence.
[9] First, he directs our attention to the finding “[t]hat on multiple occasions
between June of 2014 and May of 2015 parents became involved in disputes
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that required intervention of law enforcement[.]” Appellant’s App. p. 12.
Father insists that there was evidence of only two altercations, not “multiple”
altercations. Initially, we note that “multiple” means “more than one,”
meaning that two incidents would qualify as multiple incidents. Merriam-
Webster Dictionary, http://www.merriam-webster.com/dictionary/multiple.
And in any event, there was evidence presented of more than two altercations:
 Mother testified that police have been called to their home on “several”
occasions. Tr. p. 62.
 Law enforcement has been called to parents’ home “multiple times” for
domestic violence incidents. Id. at 18.
 Physical altercations occurred on April 9, 2014, and May 17, 2015, that
required intervention of law enforcement.
This evidence readily supports the trial court’s finding.
[10] Second, Father directs our attention to the finding “[t]hat on one occasion the
parents became engaged in an argument that became a physical altercation
where father knocked plates and food out of mother’s hands[.]” Appellant’s
App. p. 12. A police officer testified that Mother reported that Father had
thrown a plate of food and the dish at Mother. Tr. p. 45. When asked whether
Father had “knock[ed] a plate of food out of [her] hand in the hallway,”
Mother responded “[y]eah, he flipped a plate” and the “plate of food went
flying[.]” Id. at 65. This evidence supports the trial court’s finding.
[11] Third, Father challenges the trial court’s finding “[t]hat on another occasion the
parents again became engaged in an argument that became a physical
altercation[.]” Appellant’s App. p. 12. The evidence in the record reveals that
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on April 9, 2014, Father threw Mother to the ground, held a lamp above her
head and threatened to beat her with it, attempted to hit her with a broom and
threw her to the ground again, put his arms around her neck and held her
down, and tried to stop Mother when she tried to get away. Tr. p. 39-40.
Mother testified that this incident did, in fact, happen. Id. at 56. This evidence
readily supports the trial court’s finding.
[12] Fourth, Father highlights the finding that “Mother claimed that father
threatened her and that a gun was present[.]” Appellant’s App. p. 12. Maternal
grandmother testified that sometime during the spring of 2015, Mother called
her and said that Father “had a gun on her” and that Child was in Father’s
arms. Tr. p. 78. That Mother, herself, did not testify regarding this altercation
does not undercut this finding. We find that the evidence supports the finding.
[13] Finally, Father challenges the trial court’s finding that “[c]onfrontations have
occurred in the presence of the child[.]” Appellant’s App. p. 12. We find
ample evidence in the record supporting this finding:
 Mother told a police officer that Child was “in the middle of the
living[]room screaming and crying” during the April 9, 2014, incident.
Tr. p. 40-41. She testified at trial that the incident was “partial[ly]”
observed by Child. Id. at 57.
 The same officer testified that Father walked out of the house with Child
directly following the April 9, 2014, incident.
 Maternal Grandmother testified that during the incident in spring of 2015
when Father pointed a gun at Mother, Father was holding Child in his
arms.
 Mother testified that during the May 17, 2015, incident when Father
knocked the plate out of her hands, Child was present in the home.
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In sum, we find that all of the complained-of findings were supported by the
evidence in the record and decline to reverse on this basis.
B. CHINS Finding
Father contends that the trial court’s findings do not support its conclusion that
Child is a CHINS. As noted above, our Supreme Court has summarized the
statutory requirements for finding a child to be a CHINS, noting that these are
the three basic elements that must be proved: “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.” S.D., 2 N.E.3d at 1287.
[14] It is well established that a child’s exposure to domestic violence can support a
CHINS finding. E.g., In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). DCS and the
trial court need not wait until a child is physically or emotionally harmed to
intervene; instead, a child may be found to be a CHINS if his or her physical or
mental condition is endangered. E.g., In re R.P., 949 N.E.2d 395 (Ind. Ct. App.
2011); see also In re E.M., 4 N.E.3d 636, 644 (Ind. 2014) (observing that exposure
to violence during the first three years of life can cause detrimental effects to the
brain’s neural pathways and that “[i]nfants as young as fifteen months exhibit
behavioral disturbances from spousal violence”).
[15] Father focuses primarily on his argument that there is no evidence indicating
that Child actually witnessed the domestic violence. Initially, we note that
there is not necessarily a requirement that a child be a witness to ongoing
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domestic violence in the home to support a CHINS finding. And in any event,
there is ample evidence in the record here establishing that Child did, indeed,
witness domestic violence on more than one occasion. On April 9, 2014, when
Father repeatedly threw Mother to the ground, threatened to beat her with a
lamp and attempted to beat her with a broom, and put his arms around her
neck, Child was in the middle of the room, “screaming and crying.” Tr. p. 40.
In the spring of 2015, Mother called her mother and said that Father was
pointing a gun at her and had Child in his arms. In May 2015, Father
threatened to snap Mother’s neck and kill her and knocked a plate of food out
of her hands. She did not feel she could safely leave the home and had to call
her brother to come and help. Mother admitted that Child was present during
this period of time. Id. at 65-66.
[16] In sum, the record reveals multiple instances of domestic violence with Child
present. Additionally, Father had serious mental illnesses for which he was not
receiving appropriate treatment, causing frequent agitation and unpredictability.
The parents refused to participate in services with an IA.3 Maternal
Grandmother and DCS employees were concerned about Child’s safety and
well-being when in the care and custody of her parents. We find that this
evidence supports the trial court’s conclusion that Child is a CHINS. Father’s
3
Father does not challenge the trial court’s conclusion that the coercive intervention of the court was
necessary, but we note that the parents’ refusal to participate with services through an IA readily supports
that conclusion.
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arguments to the contrary amount to a request that we reweigh the evidence
and assess witness credibility, and we decline to do so.
[17] The judgment of the trial court is affirmed.
Vaidik, C.J., and Najam, J., concur.
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