In the Matter of: C.K., a Child Alleged to be in Need of Services, F.R. (Mother) and B.K. (Father) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 23 2016, 10:42 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Robert J. Henke
James D. Boyer
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: C.K., a Child November 23, 2016
Alleged to be in Need of Court of Appeals Case No.
Services, 29A02-1603-JC-511
Appeal from the Hamilton Circuit
F.R. (Mother) and B.K. (Father), Court
Appellants-Respondents, The Honorable Paul A. Felix,
Judge
v. The Honorable Todd L. Ruetz,
Magistrate
The Indiana Department of Trial Court Cause No.
Child Services, 29C01-1509-JC-1177
Appellee-Petitioner.
Brown, Judge.
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[1] F.R. (“Mother”) and B.K. (“Father,” and together with Mother, “Parents”)
appeal the juvenile court’s order determining that C.K. was a child in need of
services (“CHINS”). Parents raise one issue which we revise and restate as
whether sufficient evidence supports the juvenile court’s determination that
C.K. was a CHINS. We affirm.
Facts and Procedural History
[2] Mother and Father are the married, biological parents of C.K., born April 13,
2015. Mother, age thirty-two, is an emergency room physician, and Father, age
thirty-four, is an electrical engineer. On July 23, 2015, C.K. fell from a stroller
while on a walk with his maternal grandmother, which resulted in cuts on the
left side of his face around his forehead and hairline. C.K.’s grandmother
called Mother about his condition, C.K. appeared normal when Mother
observed him, and Mother reported the accident to C.K.’s pediatrician, who
had no further concerns related to the fall from the stroller.
[3] On August 18, 2015, Mother fed C.K. and, at around 8:00 p.m., Father put him
to bed. During the night, C.K. awoke once at approximately 1:00 a.m., and
again between 3:00 a.m. and 4:00 a.m. Mother woke and attended to him on
both occasions and breastfed him for approximately fifteen minutes before he
returned to sleep. At approximately 5:45 a.m. Father awakened, showered,
heard C.K. crying, and, after changing C.K.’s diaper, brought him to Mother,
who was still sleeping, at approximately 6:00 a.m. Mother began to breastfeed
him, and during that time she stayed in bed with him, nursing him and sleeping
intermittently until 7:00 a.m. Meanwhile, Father left for work at approximately
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6:30 a.m. Later that morning, Mother dropped C.K. off at the Goddard School
at around 7:45 a.m. Danielle Mann, the lead teacher in the infant room, met
Mother in the infant room that morning. Mann observed that C.K. seemed
“[k]ind of normal,” but she also noticed that “[h]e didn’t really show a lot of
expression or anything so.” Transcript at 217. Mann also noticed that C.K.
“wasn’t really moving a lot,” that C.K. “was awake after [she] took him” but
that he “looked a little sleepier,” and that he was not cooing or making noises at
that time. Id. at 217-218.
[4] After Mother left, Mann went to the area rug where the infants play, sat down
with C.K. in her arms, and, while C.K. was in her arms, he “[j]ust laid there,”
and she noticed that he did not make any movements with his arms or legs. Id.
at 218. A short time later she “put him in the [M]amaRoo” because he “looked
a little sleepy,” and she noted that he was awake when she placed him there.
Id. at 219. She buckled him into the MamaRoo, which is “an electric swing
that plugs into the wall and it cradles them like side-to-side,” and C.K.’s head
rested in “a cup shape” portion of the swing. Id. at 220-221. The speed of the
MamaRoo was not fast, a child’s head does not move from side to side, and
children generally “don’t really move around in [the MamaRoo].” Id. at 222.
Once C.K. was in the swing, Mann returned to playing with the other children
and checked on C.K.’s breathing every five minutes. C.K. slept for about an
hour when Mann noticed “a different breathing sound from him,” observed
that he did not respond and did not open his eyes when she tapped him, and
she continued tapping him and talking to him but he was still non-responsive.
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Id. at 223. She took him out of the MamaRoo and “held him against [her]” but
his eyes were still not opening, and she went to the door and called for the
Goddard School’s Director, Amy Lamb and Assistant Director, Emily Shafer.
Id.
[5] Mann, Lamb, and Shafer attempted to awaken C.K., but he was non-
responsive. He was “still breathing,” but it was a “gaspier kind of breath.” Id.
at 225. While Mann and Shafer were attending to C.K., Lamb called
paramedics and Parents. Another parent, Amanda Born, an OB/GYN
physician, was dropping off her children at Goddard and also attempted to
rouse C.K. Dr. Born observed C.K. “lying on his back on the floor” while
Mann and Shafer were trying to wake him up and that “he looked asleep” with
“very, very poor tone, like he wasn’t - - like he was in a very deep sleep
basically but not responding to stimuli.” Id. at 123.
[6] Lamb contacted Father at 9:11 a.m., and he immediately attempted to contact
Mother. Mother contacted Lamb at 9:20 a.m., and was informed by Lamb that
paramedics had been called. Mother requested that C.K. be transported to
Riley Children’s Hospital (“Riley”). Paramedics arrived, checked C.K.’s vital
signs, observed that he was not responsive to painful stimuli, that his limbs were
weak, and that his skin was cold and pale, and they decided to take C.K. to
Indiana University North Hospital (“IU North”), which was the nearest
hospital.
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[7] C.K. was taken to IU North where he underwent testing which showed
intracranial hemorrhaging, and he was transferred to the emergency department
at Riley. Mother joined C.K. in the ambulance ride to Riley, and he twice
vomited the sugar water he had been given at IU North. At Riley, Dr. Daniel
Fulkerson, a pediatric neurosurgeon, attended to C.K. and characterized his
subdural hematomas as severe and noted that “any time we see somebody with
a subdural hematoma that just by itself I think is, I would classify as severe.”
Id. at 147. C.K. was observed with a bruise on the left side of his forehead, but
there was no other evidence of fractures. C.K. spent three days in an intensive
care room at Riley before he was transferred to a regular room for another four
days. Tests revealed that he had subdural hematomas on both sides of his
brain, which are collections of blood in the space between the brain and the
skull, as well as hemorrhages to the retina of his right eye. Subdural
hematomas are caused by a significant amount of force, either by impacting or
striking the head, or the head is shaken with a significant and forceful back and
forth movement. Retinal hemorrhages are often suspicious for a traumatic
injury, but they also may be associated with non-accidental injuries or
underlying conditions.
[8] Dr. Ralph Hicks, a professor of clinical pediatrics at Riley who is board-certified
in the subspecialty of child abuse pediatrics and a member of Riley’s child
protection team, also evaluated C.K. and felt that his injuries “were suspicious
for non-accidental trauma,” but he acknowledged that other possibilities
included “an accidental event that had not yet been disclosed or an accidental
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event associated with a lapse of supervision, or an accidental event associated
with neglect” which could have caused the injuries. Id. at 111. He explained
that, if the cause of the injuries was an accident, “it would require a pretty
forceful trauma to the head, some sort of significant impact to the head or the
head impacting something.” Id. Dr. Hicks also noted that “it takes a significant
amount of force to cause this type of injury” and that the force involved in
C.K.’s injury was “not the type of force that, forces that are involved with
bouncing a baby on one’s knee or your usual swings, baby infant swings or
carriers. It’s much more than that.” Id. at 105.
[9] That same day, the Department of Child Services (“DCS”) received a report
from Dr. Hicks that C.K. experienced head trauma as well as injuries around
his right eye. DCS assessor Shalissa Kutzleb and Carmel Police Detective
Trent McIntyre conducted an investigation into the cause of C.K.’s head
injuries. Detective McIntyre interviewed Parents with Kutzleb present at Riley
during the afternoon of August 19, 2015. Mother stated to Detective McIntyre
and Kutzleb that she had experienced “problems with [C.K.] sleeping within
the last two weeks . . . where he had used to sleep through the night he was now
getting up there or four times a night,” and Detective McIntyre was concerned
with “the stressors in regard to [Mother] not sleeping and having problems with
[C.K.] not sleeping,” and that Mother did not provide “a lot of details . . .
between the time that she woke up and fed him and took him to school.” Id. at
387-388. On August 26, 2015, Parents took a polygraph examination at the
Carmel Police Department. Father passed the polygraph while Mother failed it
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based on her responses to whether she was involved with the injury that
occurred to C.K. or if she injured C.K., and if she knew how C.K. was injured.
When interviewing Mother at Riley, Detective McIntyre felt that Mother’s
“statements in regard to the sleep is one of the bigger things that shows a motive
behind some type of injury” and that after the interview he observed Mother
“laughing and talking with somebody else there that knew her through work.
So there was just not as much distress visible.” Id. at 421. Detective McIntyre
informed DCS of the results of the polygraph, as well as his suspicion that
Mother may have been involved in C.K.’s injuries based on the totality of his
interaction with her.
[10] On September 2, 2015, DCS requested to initiate a CHINS filing seeking
approval to take custody of C.K, and filed its CHINS petition. The petition
alleged that C.K. was found to be “lethargic and unresponsive while at the
Goddard School” and that he had subdural hematomas on both sides of his
head as well as hematomas/hemorrhages around his eyes. Appellants’
Appendix at 42. The CHINS petition also alleged that the injuries were non-
accidental and that Mother failed a polygraph examination regarding C.K.’s
injuries. That same day, the juvenile court held a detention hearing, ordered
C.K.’s detention and continued placement in the family home, permitted
Mother to return to the home, and ordered that all of Mother’s contact with
C.K. be supervised. The juvenile court held an initial hearing on September 17,
2015, at which Parents denied the allegations contained in the CHINS petition.
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[11] On October 13, 2015, Mother underwent psychological testing with Dr. Robin
Kohli, which included the Minnesota Mulitphasic Personality Inventory,
Parenting Stress Index, Adult Substance Subtle Screening Inventory, Child
Abuse Potential Inventory, and the Rorschach Inkblot Test. Dr. Kohli had not
reviewed any materials from DCS or other sources prior to her evaluation, and,
based upon her assessment of Mother and Parents’ self-assessment, noted that
Mother had previously experienced three panic attacks and experienced anxiety
and depressive symptoms. Mother did not report to Dr. Kohli that C.K. had
been having trouble sleeping. Dr. Kohli observed that Mother “appeared to
process information slowly and carefully, resulting in slower responding on the
objective personality tests that would otherwise be expected given her high level
of intelligence.” Parents’ Exhibit W at 1. Dr. Kohli’s report noted that
Mother’s responses to the questions indicated defensiveness and situational-
related depression and anxiety, and that, although Mother did not fall into the
risk factors of shaken baby syndrome, she noted that depression, stress, and a
colicky or fussy child could be risk factors and could not definitively exclude
Mother as a perpetrator.
[12] On November 2, 16, and 30, 2015, the juvenile court held a fact-finding hearing
at which it heard testimony and received exhibits consistent with the foregoing.
On December 28, 2015, the court entered an order (“the Order”), which
contained detailed findings of fact and conclusions of law, determining that
C.K. was a CHINS under Ind. Code §§ 31-34-1-1 and 31-34-1-2. The Order
also applied the rebuttable presumption statute, Ind. Code § 31-34-12-4.
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[13] On January 5, 2016, the guardian ad litem (“GAL”) filed a report for the
dispositional hearing, and DCS filed a parental participation plan as to Mother
and Father respectively. In the report, the GAL recommended that C.K.
remain in the home with Mother and Father and that Mother have unrestricted
visitation with C.K. Mother filed a petition for unsupervised visitation on
February 4, 2016, and, the juvenile court held a dispositional hearing on
February 22, 2016. The court entered a dispositional order on February 26,
2016, and on March 29, 2016, DCS filed a motion to terminate jurisdiction and
discharge the parties, which was granted on March 31, 2016.
Discussion
[14] The issue is whether sufficient evidence supports the juvenile court’s
determination that C.K. was a CHINS. In reviewing a juvenile court’s
determination that a child is in need of services, we neither reweigh the
evidence nor judge the credibility of the witnesses. In re S.D., 2 N.E.3d 1283,
1286-1287 (Ind. 2014), reh’g denied. Instead, we consider only the evidence that
supports the juvenile court’s decision and reasonable inferences drawn
therefrom. Id. DCS is required to prove by a preponderance of the evidence
that a child is a CHINS. In re A.H., 913 N.E.2d 303, 305 (Ind. Ct. App. 2009).
When a court’s order contains specific findings of fact and conclusions of law,
we engage in a two-tiered review. Id. First, we determine whether the evidence
supports the findings. Id. Then, we determine whether the findings support the
judgment. Id. We reverse the juvenile court’s judgment only if it is clearly
erroneous. Id. A judgment is clearly erroneous if it is unsupported by the
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findings and conclusions. Id. When deciding whether the findings are clearly
erroneous, we consider only the evidence and reasonable inferences therefrom
that support the judgment. Id.[15] 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; 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.
[16] Ind. Code § 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:
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(A) the child is not receiving; and
(B) is unlikely to be provided or accepted without the
coercive intervention of the court.
[17] Finally, Ind. Code § 31-34-12-4 provides:
A rebuttable presumption is raised that the child is a child in need
of services because of an act or omission of the child’s parent,
guardian, or custodian if the state introduces competent evidence
of probative value that:
(1) the child has been injured;
(2) at the time the child was injured, the parent, guardian, or
custodian:
(A) had the care, custody, or control of the child; or
(B) had legal responsibility for the care, custody, or control
of the child;
(3) the injury would not ordinarily be sustained except for the act
or omission of a parent, guardian, or custodian; and
(4) there is a reasonable probability that the injury was not
accidental.
The CHINS statute, however, does not require that a court wait until a tragedy
occurs to intervene. In re A.H., 913 N.E.2d at 306. Rather, a child is a CHINS
when he or she is endangered by parental action or inaction. Id. The purpose
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of a CHINS adjudication is not to punish the parents, but to protect the child.
In re A.I., 825 N.E.2d 798, 805 (Ind. Ct. App. 2005), trans. denied.
[18] Parents challenge Findings 10, 18-23, 25-32, 34-45, 47-48, 50-60, and 62-66 and
Conclusions 1 and 3-9 of the Order. Parents also assert that the juvenile court
erroneously applied the rebuttable presumption statute. DCS maintains that the
evidence supports the findings, that the conclusions support the judgment, and
that the Parents’ challenges to the findings and conclusions are a request to
reweigh evidence. It argues that the juvenile court properly applied the
rebuttable presumption statute, Parents did not rebut the presumption, their
argument “misapprehend[s] the statute,” and that the juvenile court was
entitled to weigh the evidence with respect to application of the rebuttable
presumption statute. Appellee’s Brief at 29. In reply, Parents assert that DCS
has waived its arguments on appeal, and that its failure to address their
arguments leads to the conclusion that the standard of review should be prima
facie error.
[19] Parents challenge the following Findings and Conclusions of the Order:
FINDINGS OF FACT:
*****
10. When Mother handed [C.K.] to Ms. Mann, [C.K.] had his
eyes open and appeared to be fully awake but Ms. Mann noted
he also appeared sleepy and did not show a lot of expression.
[C.K.] was responsive to Ms. Mann’s voice by looking at her, but
he did not move or reach for her as normal and made no noise.
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[C.K.] made no movements of his arms or legs. After Mother
left, Ms. Mann sat down with [C.K.] on the floor holding [C.K.]
in her arms. Although awake, [C.K.] continued to appear sleepy,
his eyes closing then opening, so she put him in a baby swing to
sleep. [C.K.] was placed in the swing about 15 minutes after
Mother left the daycare. It was not uncommon for [C.K.] take
such morning naps.
*****
18. [C.K.] also underwent numerous diagnostic tests ruling out,
other than trauma, any indication of an underlying medical
reason, condition or cause of [C.K.’s] injuries of subdural
hematomas and retinal bleeding.
19. The force causing [C.K.’s] injuries would be significant
acceleration or deceleration or rotation of the head and would be
from either something impacting or striking the head, the head
striking something, or the head being shaken with significant
back and forth movement. According to Dr. Hicks, the type of
force needed to cause this type of injury was much more than the
force involved in bouncing a child on ones [sic] knee or the
typical baby swing. Dr. Fulkerson concurred with the finding
that the subdural hematomas were caused by some type of
abnormal motion and that said motion would have to be more
than a rocking motion in a swing.
20. The types of events that cause these injuries involve a
significant amount of force which would be noticed by a
reasonable caregiver.
21. According to Dr. Hicks, the injury to [C.K.] was either due
to non-accidental trauma, an accident without disclosure (one in
which the caregiver was aware of the accident but failed to report
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the accident), an accident due to neglect, or an accident due to
lack of supervision.
22. All four possibilities that Dr. Hicks presented as the possible
cause of the injury to [C.K.] would only arise due to an act or
omission of a caregiver. Nondisclosure of an accidental injury
would fall under an omission of a caregiver as the expectation of
a reasonable caregiver. In this circumstance, a reasonable
caregiver would seek out medical care for [C.K.]. With [C.K.]
being four months of age, and being of limited mobility, there is a
reasonable probability that the injuries to [C.K.] were non-
accidental in this case.
23. Nothing unusual or abnormal happened at the daycare on
August 19, 2015 that would have caused [C.K.’s] injuries.
Nothing said by Ms. Mann or other daycare staff to Det.
McIntyre gave him concern in his criminal investigation that any
of them were the perpetrators of [C.K.’s] injuries.
*****
25. The exact time when [C.K.’s] injuries occurred cannot be
precisely pinpointed. However, based on Dr. Hick’s [sic]
experience he states a relative time frame for the injuries can be
determined. Infants who have these types of injuries will develop
symptoms very rapidly after the traumatic event and often
symptoms are immediate. If not immediate, symptoms develop
very quickly. These symptoms include a change in mental status
demonstrated by a depreciation in their level of alertness, ability
to make eye contact, and their response to stimuli. They may
develop irritability, sleepiness, lethargy, even coma.
26. The recognition of these symptoms from the onset of the
trauma depends upon the severity of the injury. The symptoms
can be more subtle and more difficult to recognize if the injury is
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mild or moderate in degree. The significance of a moderate
degree of severity is that the symptoms of such an injury may not
be as immediately apparent as when an injury is more
pronounced.
27. There is a spectrum to determine the severity of such
injuries. [C.K.’s] subdural hematomas were on the moderate
degree in the severity spectrum based on the testimony of both
Dr. Hicks and Dr. Fulkerson. In expanding on the classification
of moderate, Dr. Fulkerson described [C.K.’s] subdural
hematomas were not severe enough for immediate surgery but
not minor pools of blood either.
28. The emergency responders who examined [C.K.] at the
daycare also classified his head injury as moderate, placing it as a
10 on the Glasgow Coma Scale which falls into the severity
category of a moderate head injury.
29. While the change in breathing occurred approximately an
hour after [C.K.] was left at the daycare there is evidence strongly
suggesting other symptoms were, or had already been,
demonstrated by [C.K.] when [C.K.] was exchanged from
Mother to Ms. Mann. Dr. Hicks identified the typical symptoms
for this type of head injury could include, alteration in mental
status; sleepiness, lethargy or coma; irritability; difficulty feeding;
vomiting; seizures or convulsions; or difficulty in moving arms
and legs normally. Not all of the symptoms will necessarily
occur immediately and those that do occur immediately may not
be easily recognized as a symptom. Symptoms may be subtle or
more difficult to recognize in moderate injuries, as in [C.K.’s]
case, and symptoms may come on more gradually and develop
into more severe symptoms later.
30. There is evidence that at some point after the onset of
symptoms [C.K.] vomited and may have, within a few days after
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the injury, suffered a seizure. While these would be indicative
that the symptoms were increasing in severity, they do not
indicate that the head injury itself rose from the moderate
category, as was identified by both Dr. Fulkerson and Dr. Hicks,
to the severe category. As such, they are of little probative value
in determining how severe or evident the symptoms would be at
the time of the traumatic event itself.
31. According to Dr. Hicks, two possible symptoms could be
that a child appears sleepy and exhibits poor feeding, both of
which were present in this case at the time [C.K.] was dropped
off at daycare by Mother. Additionally, [C.K.] did not show
much expression as [C.K.] was delivered by Mother to Ms.
Mann. Although [C.K.] was responsive to Ms. Mann’s voice by
looking at her, he did not move or reach for her as normal and
made no noise. Moreover, [C.K.] made no movements of his
arms or legs. [C.K.] then continued to appear sleepy, his eyes
closing then opening, while being held by Ms. Mann.
32. Further, the fact that the hour long feeding was noted as
significant by Mother on the day the injury to [C.K.] was
discovered, along with Mother’s own testimony that [C.K.] may
not have been actually feeding the entire time, the Court finds
that the hour long feeding on August 19, 2015 was more likely a
result of [C.K.] having trouble feeding which the court finds to be
a symptom of poor feeding.
*****
34. The Court finds Ms. Mann’s testimony in its entirety to be
credible and consistent with previous statements she had given to
Det. Trent McIntyre of the Carmel Police Department. Ms.
Mann appeared to be forthright in her testimony including her
acknowledgment that she allowed [C.K.] to continue sleeping in
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the swing, contrary to the daycare’s policy, rather than placing
[C.K.] in a crib after falling asleep.
35. The court finds and that the greater weight of the evidence is
that [C.K.] was injured prior to being left with Ms. Mann the
morning of August 19, 2015 and Ms. Mann is not responsible for
the injuries suffered by [C.K.].
36. The greater weight of the evidence is that [C.K.’s] injuries
occurred while in the care of Mother.
37. Scans of [C.K.’s] subdural hematomas portrayed multiple
densities with both acute (recent) bleeding and chronic (old)
bleeding suggesting more than one event and different time
frames for the occurrences causing the hematomas. The fact that
a child of four months age suffers from one subdural hematoma
is a risk factor for non-accidental trauma warranting a panoply of
protocols, assessments and evaluations by the Riley child
protection team. The fact that [C.K.’s] scans showed more than
one subdural hematoma, suggesting more than once occasion of
injury, heightens the level of concern for repetitive trauma to
[C.K.].
38. Dr. Sarah Hill, [C.K.’s] pediatrician, testified that one of the
symptoms of a child suffering a head injury would be inadequate
feeding. When questioned by counsel for parents, Dr. Hill
testified that she would not expect a child who had suffered a
brain injury to feed for an hour. However, Mother
acknowledged that [C.K.] may have stopped and restarted
feeding at times throughout the hour. Mother further stated that
[C.K.] can typically get everything he needs as far as
nourishment within fifteen minutes of feeding. The Court finds
that there is a difference between a child actually feeding for an
hour and for a child taking an hour to feed. The first implies
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continued feeding, while the second suggests a child having
trouble feeding.
39. On the morning of August 19, 2015 Mother advised Ms.
Mann that [C.K.] had taken an hour to eat that morning, which
was twice as long as he usually took to feed. Under the
circumstances presented, the court finds Mother was reporting an
unusual event and difficulty with feeding, and as such, is a
symptom of trauma to [C.K.].
40. Mother was alone with [C.K.] on the morning of August 19,
2015. On, August 18, 2015, the day prior to the incident, Mother
nursed [C.K.] and Father put [C.K.] to bed between 7:00 p.m.
and 8:00 p.m. Mother then went to bed about 8:45 p.m., later
expressing to Detective McIntyre that she was very tired and had
little sleep the night before on August 17, 2015. [C.K.] awoke at
1:00 a.m. and again at 4:00 a.m. [in] the early morning hours of
August 19, 2015 with Mother getting up to take care of and nurse
[C.K.]. Each feeding occasion took about 15 minutes before
laying [C.K.] back down to sleep. On August 19, 2015 [C.K.]
then awoke again at about 5:45 a.m. at which time Father
changed [C.K.] and left [C.K.] with Mother again to nurse.
[C.K.] was awake, responsive[,] even smiling at Father at the
time. Father left for work about 6:45 a.m. leaving [C.K.] in
Mother’s care. Mother then delivered [C.K.] to daycare at 7:53
a.m.
41. While one symptom alone may not be enough to indicate
that the injury to [C.K.] occurred prior to his being brought to the
daycare that morning. The Court finds by a preponderance of
the evidence that the cumulativeness of these symptoms, both
before and at the time [C.K.] was brought to daycare,
demonstrates that [C.K.] was more likely than not to have
suffered the injury prior to his arrival at the daycare and was
already in distress at the time of his arrival at the daycare.
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42. Mother has also given inconsistent statements as to the lack
of sleep for both her and [C.K.] around August 19, 2015. Mother
reported that [C.K.] was a pretty good sleeper, easy to take care
of and not fussy. She also testified that she had plenty of sleep
the night of August 18, 2015. Yet on August 19, 2015, she told
Det. McIntyre that she did not get much sleep on August 17,
2015 that she had experienced recent problems with [C.K.’s]
sleeping patterns. [C.K.] had been sleeping through the night,
but was recently getting up 3 or 4 times a night. Mother
described it as being a “nightmare” during this time. Mother told
the detective that she had gotten up at least twice that night
(August 18 through August 19, 2015) to feed [C.K.] which she
described as normal feedings. Mother then stated that the next
thing she knew Father awakened her to give her [C.K.] to feed in
the morning when Father left for work. Mother tried to have
[C.K.] lay with her so she could go back to sleep before work.
Mother told the detective that pretty soon she realized that that
was not going to happen and it would be another day of no sleep.
Mother said [C.K.] was crying when she first got him that
morning. Mother also talked to the detective about being
stressed at work.
43. Mother further told the detective that [C.K.] had fed
normally that morning, which is inconsistent with what Mother
told Ms. Mann earlier when Mother left [C.K.] at the daycare.
44. When asked, Mother provided little detail to Detective
McIntyre as to the morning events transpiring on August 19,
2015 prior to her delivering [C.K.] to daycare.
45. Details as simple as where Mother placed [C.K.] on the
morning of August 19, 2015 changed over time. On August 19,
2015, the day she was first interviewed by Det. McIntyre, Mother
said that after feeding [C.K.], she placed [C.K.] in his swing.
Days afterwards, while talking with her attorney, she recalled
that she had left [C.K.] on the bed. The Court finds it is much
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more likely that the details of an event are better recalled close to
the timing of the event then it would be several days later.
Moreover, placing [C.K.] in a swing would be inconsistent with
the suggestions that [C.K.] may have sustained his injuries as a
result of being placed in a swing at daycare, a suggestion made by
[Parents] during the course of the proceeding.
*****
47. The Court finds that the multiple instances of conflict,
alteration, and/or omission by Mother in her testimony and
previous statements to others discredit her overall testimony.
48. No one has come forward with details of actual events that
caused the injuries to [C.K.]. [C.K.] suffered no accidents that
would have caused the injuries.
*****
50. The court finds that the presumption of I.C. 31-34-12-4 has
been raised by the state in this case by competent evidence of
probative value that [C.K.] has suffered, as a result of non-
accidental trauma, two subdural hematoma’s [sic] on the brain
and retinal bleeding while in the care of [C.K.’s] parent and that
the injuries would not ordinarily be sustained except for the act
or omission of the parent.
51. Evidence offered by way of video recording to suggest [C.K.]
was asymptomatic at the time [C.K.] was delivered to daycare is
not persuasive. The Court, having viewed the surveillance video
as [C.K.] entered into the daycare on August 19, 2015, notes that
[C.K.’s] eyes were open. Albeit, there was no observable
movement of [C.K.’s] head, arms or legs to indicate any level of
alertness. The Court also takes into consideration the testimony
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of Dr. Hicks that simply because a child’s eyes are open does not
necessarily mean that [C.K.] is alert. According to Dr. Hicks,
when an individual sustains a brain injury, the eyes may remain
open, but he may not be able to comprehend things.
52. Mother’s interactions with and care for [C.K.] at the hospital
after the injuries were sustained, as reflected in pastoral care
notes, the psychological assessment, the social work report, and
the release of information to DCS and the Carmel Police
Department are not persuasive that Mother is not responsible for
[C.K.’s] injuries. [Parents] point to observations within the
medical records of Mother’s interaction with [C.K.] at the
hospital after the injury occurred as indicative as to whether or
not Mother caused the injury to [C.K.]. The fact that a parent is
attentive to a Child’s needs after an injury, in and of itself, does
not negate the possibility that the parent is responsible for the
injury. In this same regard, the court notes that there is evidence
of Mother being observed in the hospital laughing with a friend
and/or acquaintance while [C.K.] is being treated for a traumatic
brain injury. This demonstrates there may be no correlation
between [C.K.’s] injury and the Mother’s emotions exhibited
afterward.
53. [Parents] present evidence that [C.K.] had fallen from a
stroller on July 23, 2015 to suggest a cause of [C.K.’s] injuries
observed on August 19, 2015. The court finds there is no nexus
between this earlier fall and the later injuries based upon the
testimony of Dr. Hicks. The court rules out this fall as a cause of
[C.K.’s] injuries discovered on August 19, 2015.
54. Dr. Daniel Fulkerson, the neurosurgeon who evaluated
[C.K.] on August 19, 2015 and thereafter, believes there is some
indication that [C.K.] may have had a predisposition to bleeding
on the brain. He posited that [C.K.] had some enlarged extra-
axial cerebrospinal fluid spaces (BEFI) that, by theory, may have
predisposed [C.K.] to bleeding on the brain due to enlarged
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spacing between the brain and skull. But, such a predisposition
for bleeding by such a condition cannot be scientifically proven
and such bleeding even with such a condition, according to Dr.
Fulkerson, would still be the result of a traumatic event.
Moreover, Dr. Hicks determined that the pattern of findings
which [C.K.] presented would not be the same as expected with
BEFI. The neuroradiologist, with whom Dr. Hicks consulted
and with whom he reviewed [C.K.]’s scans, did not feel there
was definite evidence for enlargement or widening between
[C.K.’s] brain and skull to justify this position by Dr. Fulkerson.
Notwithstanding, a BEFI condition would not account for the
retinal hemorrhages according to Dr. Fulkerson. Retinal
hemorrhages in infants and young children caused by trauma are
unusual with accidental injuries and are more concerning for
non-accidental injury. The court finds that Dr. Fulkerson’s
opinion [C.K.] may have the BEFI condition does not outweigh
the preponderance of the evidence presented by the state or rebut
the presumption raised by the state.
56. [Parents] hired a psychologist, Dr. Robin Kohli, to complete
a psychological evaluation which was admitted into evidence as
Defendant’s Exhibit W. In the evaluation, Dr. Kohli opines
Mother “does not meet the research based evidence that is
correlated with individuals who perpetrate non-accidental
injuries against their infants” and “testing results did not suggest
risk to reoffend.” The Court finds that the psychological
evaluation was effectively discredited by DCS and should be
relegated little probative value in Mother’s favor. On the
contrary, the evaluation provides evidence of probative value that
Mother suffers from stress increasing the likelihood that she is the
perpetrator of [C.K.’s] injuries and fails to rebut the presumption
raised by the state.
a. Mother reports to Dr. Kohli that she has had, over a sustained
time, numerous bouts of anxiety brought about by various
stressors accompanied by lack of sleep. Stressful circumstances
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and lack of sleep have been presented accompanying the
occurrence of [C.K.’s] injuries. Mother was previously
prescribed medication for anxiety, has stopped taking the
medication, but still exhibits symptoms of anxiety.
b. Mother failed to advise Dr. Kohli that she was experiencing
difficulty with [C.K.’s] sleep patterns. She described [C.K.] as
easy to care for and did not describe the circumstances leading up
to [C.K.’s] injuries as a “nightmare” as she described to Det.
McIntyre. Mother failed to inform Dr. Kohli that [C.K.] had not
been sleeping well around the time of the injury, a fact which Dr.
Kohli admitted may have made a difference in her assessment.
c. Dr. Kohli relied only on information reported to her by
Mother. She did not review any documentation by DCS or
others.
d. Dr. Kohli acknowledged during her testimony that the test
results are subjective.
e. By her own account, Dr. Kohli noted in the assessment that
Mother’s “overly concerned response style may have limited the
validity of the testing, as it was later observed that she presented
with a defensive style on several of the tests. While none of the
measures were invalidated by this response style, her excessive
caution limited the utility of several of the tests.”
f. Dr. Kohli noted within the psychological assessment that
Mother’s responses to the Rohrshach Inkblot Test “suggested
that she is currently under a fair amount of stress, which may
impact her ability to cope with everyday stressors and events.
She also tends to internalize her feelings, avoiding overt
emotional expression.” Dr. Kohli testified that when a person
internalizes their feelings, the person can have problems coping
with those feelings.
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g. As part of the psychological assessment, Dr. Kohli evaluated
Mother in relation to Shaken Baby Syndrome by comparing
Mother to several risk factors. Dr. Kohli acknowledged in her
testimony that the risk factors she listed as definitive were in fact
only suggestive in the research articles she relied upon in making
her evaluation. She also acknowledged that her research articles
noted research on such risk factors was woefully inadequate.
h. Dr. Kohli further acknowledged that the research articles on
which she relied indicated that infant shaking is much more
likely to result from a moment of extreme stress and frustration,
and takes the form of an unreasoned and impulsive act. In most
cases, the shaking occurred by the perpetrator when they were
alone caring for the child and where there were no witnesses and
little or no evidence of ongoing abuse.
i. Dr. Kohli opined that Mother met none of the known risk
factors which would place her at risk for physically abusing
[C.K.] through non-accidental infant trauma, despite previously
listing findings of stress and depression in the assessment, which
were two of the risk factors she listed.
j. A third risk factor identified by Dr. Kohli, was when an infant
has difficult temperament, is colicky or fussy, cries excessively, or
[is] difficult to soothe. As noted previously, Mother chose not to
disclose to Dr. Kohli that [C.K.] had not been sleeping well at the
time of the injury and that it had been a “nightmare” as she
disclosed to Det. McIntyre. To the contrary, Mother told Dr.
Kohli that [C.K.] sleeps well and that he was an easy baby. Dr.
Kohli acknowledged that if [C.K.] had been sleeping well, but
then wasn’t, that would possibly be important.
k. Dr. Kohli testified that she could not definitively exclude
Mother as the perpetrator based on her assessment.
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57. Mother points to her ability to handle stress in her
occupation as an emergency room physician as proof that she, in
a moment of extreme stress, would not harm [C.K.]. The court
notes that during her evaluation, Dr. Kohli observed Mother
“appeared to process information slowly and carefully, resulting
in slower responding on the objective personality tests than
would otherwise be expected given her high level of intelligence.”
Dr. Kohli further states her impression that Mother’s overall
testing results “also indicated a tendency to be indecisive and rely
on others to make decisions.” The court finds that this behavior
and characteristic difficult for a person in Mother’s position
suggesting Mother’s ability to handle stressors at work may also
be difficult for her or overcome with much effort.
Notwithstanding, the Court finds Mother’s ability to handle
stress at work is not compelling as to whether she harmed [C.K.].
The court finds this evidence does not outweigh the evidence
presented by the state and dos not rebut the presumption raised
by the state.
58. Based on the evidence presented and inconsistencies in
Mother’s own statements, the Court finds by a preponderance of
the evidence that the injuries to [C.K.] happened while in
Mother’s care and [sic] were caused by an act or omission of
Mother. Mother was alone with [C.K.] the morning of August
19, 2015. Mother is the one person who has given inconsistent
accounts at various times and to various people.
59. The Court finds that the parents have not presented evidence
sufficient to refute the rebuttable presumption raised by the state.
60. [C.K.] is in need of services and the coercive intervention of
the court is necessary to achieve those services. A Child and
Family Team Meeting (CFTM) was held prior to September 1,
2015. At the CFTM [Parents] initially expressed a willingness to
participate in services provided by DCS. But, after DCS service
referrals were made for parenting assessment(s), home based
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services, and “first steps” for [C.K.], those services were
ultimately rejected by the parents’ counsel. Those services would
have provided an assessment of parenting techniques with
possible further recommendations, home based services including
parental assistance and childcare if needed, and evaluation of
[C.K.’s] development due to the injuries suffered. [Parents] have
not participated in any of the services which Ms. Lawson
referred. Case closure is not recommended by DCS at this time
due to the lack of provision and/or participation in these
services.
*****
62. Diane Crider, Guardian ad Litem, testified that she has no
safety concerns with Mother and [C.K.’s] safety. The court is not
persuaded by the GAL’s testimony under the circumstances. Ms.
Crider acknowledged that she was assigned to the case just prior
to November 2, 2015. Since that time she has only been to the
home three times, each time for one hour and has spent a total of
less than three hours observing Mother with [C.K.].
63. [C.K.] is at risk for additional injury if [C.K.] remains in the
environment in which the injury occurred. While [C.K.] appears
to be recovering from his injuries, any ongoing effects from the
injuries may not be evident for many years, including possible
development of seizures and possible delays in development that
may not be discovered until [C.K.] is older.
64. Mother admits that she has a history of anxiety including
panic attacks. Mother continues to suffer from anxiety due to life
stressors. As noted by Dr. Kohli, Mother was previously
prescribed medication for anxiety, has stopped taking the
medication, but still exhibits symptoms of anxiety.
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65. Without adequately addressing the risk factors displayed by
Mother, [C.K.’s] safety cannot be assured while in Mother’s care.
66. Each enumerated paragraph above individually and
cumulatively supports the found fact that [C.K.] is a Child in
Need of Services.
*****
CONCLUSIONS OF LAW:
1. This Court has jurisdiction over the parties and subject matter
pursuant to Indiana Code 31-30-1-1(2) and Indiana Code 31-30-
2-1.
*****
3. At the time [C.K.] was injured [Parents] had the care, custody
or control of [C.K.]; or had the legal responsibility for the care,
custody, or control of [C.K.].
4. The injury would not ordinarily be sustained except for the act
or omission of a parent, guardian or custodian.
5. There is a reasonable probability that the injury was not
accidental.
6. Pursuant to IC 31-34-12-4 there is a rebuttable presumption
that [C.K.] is a child in need of services because of an act or
omission of [C.K.’s] parent, guardian or custodian. That
presumption has not been rebutted by the evidence presented.
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7. [C.K.] is a child in need of services as defined in IC 31-34-1-1
in that his physical or mental condition is seriously impaired or
seriously endangered as a result of the inability, refusal or neglect
of his parent, guardian or custodian to provide him with
necessary food, clothing, shelter, medical care, education or
supervision.
8. [C.K.] is a child in need of services as defined IC 31-34-1-2 in
that [C.K.’s] physical or mental health was seriously endangered
due to injury by the act or omission of [C.K.’s] parent, guardian
or custodian.
9. [C.K.] needs care, treatment or rehabilitation through
providing services for [Parents] for the benefit and safety of
[C.K.] and/or for [C.K.] that [C.K.] is not currently receiving
and is unlikely to be provided or accepted without the coercive
intervention of the court. These services are necessary to ensure
that [C.K.] will not be further harmed.
Appellants’ Appendix at 7-17.
[20] The juvenile court based its CHINS determination on evidence that in August
of 2015, C.K. suffered injuries while in Mother’s care, specifically, subdural
hematomas and retinal hemorrhaging. Parents do not dispute that C.K.
suffered these injuries which are consistent with a traumatic injury. The
juvenile court held a three-day fact-finding hearing and was in the best position
to evaluate the evidence that was presented. 1
1
Parents challenge findings related to sleepiness and lethargy as symptoms of a traumatic head injury. We
note that Dr. Hicks testified that differentiating between sleepiness and lethargy “can be difficult to judge”
based on the “significance or severity,” id. at 185, of the injury, but the court heard Dr. Hicks specifically
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[21] As to whether C.K. was showing symptoms of a head injury when he arrived at
Goddard, Mother was alone with him for a little over an hour after Father left
for work and prior to dropping him off at Goddard. Upon his arrival at
Goddard Mann testified that C.K. “didn’t really show a lot of expression or
anything so,” he “wasn’t really moving a lot,” he “was awake after [she] took
him” but that he “looked a little sleepier,” and that he was not cooing or
making noises. Transcript at 217-218. Dr. Hicks testified that symptoms of a
head injury include:
[A] change or alteration in the mental status so that the infant is
not normal with respect to their level of alertness, ability to make
eye contact, to respond, for example, by smiling if they’re at an
age where they’re doing that. They may develop irritability, they
may develop sleepiness or lethargy or even coma. They may
have difficulty fee[d]ing, they may have vomiting. There might
be seizures, convulsions. There may be difficulties or abnormal,
abnormalities in the abilities to move the arms and legs normally.
Id. at 114-115. Dr. Hicks characterized C.K.’s injuries “as moderate in degree
because of his symptoms that he developed and the findings on his head
imaging,” and that symptoms in a moderate injury “may be more subtle or
more, a little more difficult to or challenging to recognize.” Id. at 115. The
juvenile court also heard Dr. Hicks testify that symptoms “can be immediately
severe, they can come on more gradually and then develop into severe distress
testify that “sleepiness or lethargy” occur as symptoms of a traumatic head injury. Id. at 114. Aided by the
expert medical testimony, the court was best positioned to weigh the evidence, judge the credibility of the
witnesses, and determine whether C.K. was showing symptoms of a traumatic head injury.
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later.” Id. at 203. Dr. Fulkerson testified that the acute blood on C.K.’s CT
scan suggested that the trauma causing his injuries “happened within hours to
days, maybe up to a week, but probably within a day or so.” Id. at 158.
Detective McIntyre testified that Mother did not provide “any real interaction
that she talked about other than just sitting him down while she got ready for
work” in the time period prior to C.K.’s arrival at Goddard, and he testified
that “newer parents will talk in a lot more detail about their interactions with
babies.” Id. at 388. Detective McIntyre also testified that he “didn’t have
concerns” regarding the sequence of events at Goddard based on the
information he received from the Goddard employees during his investigation.
Id. at 430. The record supports the juvenile court’s findings as to whether C.K.
was demonstrating symptoms of a head injury on the morning of August 19,
2015 and is supported by the evidence. Parents’ arguments are a request that
we reweigh the evidence, which we cannot do.
[22] As to the possible causes and medical impact of C.K.’s injuries, Doctor Hicks
testified that “retinal hemorrhages that are due to, that are caused by trauma,
particularly in infants and young children, are unusual with accidental head
injuries. They’re more concerning for a non-accidental injury . . . .” Id. at 107.
Dr. Hicks also testified that C.K.’s injuries “were suspicious for non-accidental
trauma” but acknowledged that other possibilities included “an accidental event
that had not yet been disclosed or an accidental event associated with a lapse of
supervision, or an accidental event associated with neglect.” Id. at 111. He
explained that if the cause of the injuries was an accident “it would require a
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pretty forceful trauma to the head, some sort of significant impact to the head or
the head impacting something.” Id.
[23] Dr. Fulkerson, who treated C.K. at Riley, explained that a subdural hematoma
“is a severe event,” that it was possible C.K. suffered a seizure, and that a
symptom for a seizure in a four-month old infant is unresponsiveness. Id. at
147. Dr. Fulkerson also explained that C.K. appeared to have benign extra-
axial fluid, and that, even with that condition, repetitive motion in a swing that
goes side to side or up and down would not likely cause a re-bleed of an existing
subdural hematoma. Dr. Fulkerson also explained that the MRI showed that
C.K. suffered subdural hematomas of different densities which would “suggest
changes in timeframe” and that the injuries were “moderate” but “worse than
just a little tiny skoosh of blood.” Id. at 161. He added that the CT scan
showed findings of both acute and chronic blood, that “[w]hen we see findings
that would suggest there is multiple densities, in other words, suggesting
multiple times, that is another thing that we think is a risk factor for non-
accidental trauma,” id. at 162, and that multiple densities of the subdural fluid
on the MRI and the CT scan caused him to “worry about multiple events”
which may suggest “there is something repetitive going on and also again
something that trips our concern for the child.” Id. at 165-166. With respect to
the relationship between benign-extra axial fluid and the presence of retinal
hemorrhaging, Dr. Fulkerson stated that “[j]ust BEFI in itself will not cause
retinal hemorrhages” and that the presence retinal hemorrhaging raises the
concern that it is caused by trauma. Id. at 173. The medical testimony related
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to the severity and possible causes of C.K.’s injuries is reflected in Findings 18-
22, 25-32, 37, 38, 51, and 53-55, and Parents’ arguments are a request to
reweigh the evidence, which we cannot do.
[24] With respect to Parents’ argument that the juvenile court incorrectly applied the
rebuttable presumption statute, we note that the juvenile court had before it
sufficient evidence to establish that C.K. suffered injuries, that while he was in
Mother’s care he was showing symptoms of a head injury upon his arrival at
Goddard, that his injuries are of a type not ordinarily sustained except for an
act or omission of a parent, and that the injuries were not accidental. Parents’
argument requires us to reweigh the evidence the juvenile court had before it,
and we cannot say that the court erred in applying the rebuttable presumption
statute or that Parents presented sufficient evidence to rebut the presumption.
See In re C.B., 865 N.E.2d 1068, 1073 (Ind. Ct. App. 2007) (holding that
“[w]hile it is not certain whether Mother inflicted these injuries upon C.B.” the
evidence presented raised the presumption under Ind. Code § 31-34-12-4 that
C.B. was a CHINS), trans. denied.
[25] With respect to Parents’ challenges to C.K.’s continued safety and Mother’s
mental health, the court heard the testimony of C.K.’s GAL, who was assigned
to the case in November 2015, and, despite her testimony that she did not have
safety concerns with Mother being alone with C.K., concluded that the GAL
had not spent sufficient time around the family to determine the safety of the
home environment and chose not to give her testimony significant weight. The
court also heard Dr. Kohli’s testimony and reviewed her report, which noted
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Mother’s defensive response style as well as her issues related to general
anxiety. We cannot say that the juvenile court abused its discretion in failing to
afford the same weight to the testimony of the GAL and to the testimony and
report of Dr. Kohli as Parents urge this Court to do.
Conclusion
[26] Based upon the foregoing, the juvenile court had before it sufficient evidence
upon which it based its findings and conclusions. We conclude that the court
properly applied Ind. Code § 31-34-12-4, and that its determination that C.K.
was a CHINS under Ind. Code §§ 31-34-1-1 and -2 is supported by sufficient
evidence. 2
[27] For the foregoing reasons, we affirm the juvenile court’s determination.
[28] Affirmed.
Robb, J., and Mathias, J., concur.
2
To the extent Parents argue that the standard of review should be prima facie error because DCS has waived
its arguments by failing to respond to their arguments, we find no merit in Parents’ contention.
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