MEMORANDUM DECISION
Dec 28 2015, 8:53 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT J.G. ATTORNEYS FOR APPELLEE
Valerie K. Boots Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Robert J. Henke
ATTORNEY FOR APPELLANT K.M. Abigail R. Recker
Deputy Attorneys General
Steven J. Halbert Indianapolis, Indiana
Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: J.D. and J.G., December 28, 2015
Children in Need of Services, Court of Appeals Case No.
49A02-1505-JC-441
J.G. (Father) and K.M.
Appeal from the Marion Superior
(Mother), Court
Appellants-Respondents, The Honorable Marilyn A. Moores,
Judge
v. The Honorable Rosanne T. Ang,
Magistrate
Indiana Department of Child Cause Nos. 49D09-1412-JC-3230,
Services, 49D09-1412-JC-3231
Appellee-Petitioner,
and
Child Advocates, Inc.,
Appellee (Guardian ad Litem).
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Bradford, Judge.
Case Summary
[1] In December of 2014, Appellants-Respondents K.M. (“Mother”) and J.G.
(“Father”) (collectively, “Parents”) had lived together for approximately one
year with their three-month-old daughter J.G. and Mother’s three-year-old son
J.D. (collectively, “the Children”). On December 19, 2014, Mother woke up
J.D. to find him with bruising on his face and a bloody nose. Later that day,
J.D. was taken to a hospital, which resulted in the involvement of Appellee-
Petitioner the Indiana Department of Child Services (“DCS”) and the removal
of J.D. from Parents’ care.
[2] DCS filed petitions to have each of the Children found to be a child in need of
services (“CHINS”). After DCS became involved with Parents, it also became
increasingly concerned for J.G.’s welfare. Mother had failed to take J.G. to
scheduled medical appointments, J.G.’s immunizations were not current, and
she had a flat spot on her head, a possible indicator of abuse. Moreover, in
January of 2015, when J.G.’s pediatrician told Mother to immediately take J.G.
to an emergency room due to low oxygen saturation, there is no record that
Mother did so. In February of 2015, J.G. was removed from Parents’ care.
[3] Following a fact-finding hearing, the juvenile court found both Children to be
CHINS, and ultimately ordered that their relative placements be continued and
that Parents participate in services. Father argues that the juvenile court abused
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its discretion in finding J.G. to be a CHINS, and Mother argues the juvenile
court abused its discretion in finding both Children to be CHINS. Because we
conclude that the juvenile court did not abuse its discretion, we affirm.
Facts and Procedural History
[4] In December of 2014, Parents had lived together for approximately one year
with their three-month-old daughter J.G. and Mother’s three-year-old son J.D.
C.D., J.D.’s father, resides in southern Indiana.1 Mother used drugs when
pregnant with both J.G. and J.D. Records indicate that Mother tested positive
for opiates and marijuana while five months pregnant with J.G.
I. J.D.
[5] On December 19, 2014, Mother woke up J.D. and noticed that he had multiple
bruises on his face and a bloody nose. Mother took J.D. to his maternal
grandmother’s. Later that day, Mother contacted C.D. and told him she
thought J.D. had hurt himself hitting his head against the wall while sleeping.
C.D. collected J.D. from J.D.’s maternal grandmother’s home and noticed that
J.D. had “some massive bruises on his face” and “a little bit of dried-up blood
in his nose.” Tr. p. 71. C.D. took J.D. to St. Francis Hospital to have him
evaluated; shortly thereafter, DCS was contacted. Mother and Father reported
to DCS that J.D. had behavioral issues and had, at times, hit his head on the
1
C.D. was involved in the proceedings below as a respondent, but does not participate in this appeal.
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wall while he slept. Father reported that he was not certain how J.D. received
his bruises. J.D. was removed from Parents’ care and placed with C.D.
[6] J.D. has several behavioral issues, including kicking, hitting, and punching;
difficulty following directions; temper tantrums; and acting out for attention. In
August of 2014, J.D. began Head Start. Jacqueline Hiler, one of J.D.’s
teachers, described him as “low functioning[.]” Tr. p. 145. According to Hiler,
J.D. has verbal, motor, and fine motor skills delays. J.D.’s last day at Head
Start was December 18, 2014, and had been placed on a waiting list for Head
Start where he now resides with C.D.
[7] Mother testified that J.D. is “a kind of clumsy boy and likes to play around a
lot.” Tr. p. 62. Hiler, however, while acknowledging that J.D. “was a little
clumsy[,]” stated that they did not experience too much trouble from falling at
Head Start. Tr. p. 148. J.D.’s paternal grandmother testified that she had seen
“some” but “[n]ot a lot” of clumsiness in J.D. Tr. p. 90.
[8] C.D. indicated that he has had concerns regarding bruising on J.D. in the past.
In March of 2014, C.D. picked up J.D. and observed bruises on both sides of
his face, which Mother claimed J.D. had received when he ran into a doorway.
Hiler also indicated that J.D. once had a bruise on his forehead, which required
her to prepare a report. Mother testified that J.D. received the bruise from
tripping and falling in the bedroom.
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II. J.G.
[9] Case coordinator Stacey Rutledge of Centerpointe Community Based Services
became involved with Parents and was assigned to monitor their services. At
some point in December of 2014 or January of 2015, Rutledge became
concerned because Mother was not ensuring that J.G. attended all of her
medical appointments and had not maintained all of J.G.’s immunizations.
Rutledge also became concerned about flatness on the back of J.G.’s head, a
sign of neglect indicating that J.G. had been lying on her back too much.
While Mother agreed to spend more “tummy time” with J.G., she denied that
neglect was the cause of the flatness on J.G.’s head. Mother also indicated that
she missed medical appointments in October and November of 2014 because
they had not been scheduled correctly and one in December because of DCS
involvement. Tr. p. 112.
[10] The record indicates that on January 12, 2015, Mother took J.G. to her
pediatrician, who discovered that J.G. had low oxygen saturation and
instructed Mother to take J.G. to an emergency room immediately. There is no
indication that Mother ever took J.G. to an emergency room. 2
2
The January 12, 2015 incident is addressed in statements by counsel on the record, referring to medical
records obtained from J.G.’s pediatrician that were, for whatever reason, not placed into evidence. Neither
Mother nor Father, however, dispute on appeal that the pediatrician visit occurred or that there is no record
of Mother taking J.G. to an emergency room.
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[11] DCS and service providers learned that neither parent has a valid driver’s
license and became concerned about them driving with J.G. in the car. At
times, the Family Case Manager (“FCM”) would go to the home to find
nobody home and no car in the driveway, only to return later to find the car in
the driveway and Parents home.
[12] On February 4, 2015, DCS removed J.G. from Parents’ care, and she was
placed with her paternal grandmother. Rutledge did not recommend placing
J.G. back with Parents, and recommended that Parents needed sixty days of
clean drug screens and to be at least halfway done with parenting classes before
J.G. is placed back in their care.
III. Parents’ Compliance with Services
[13] Parents’ services have been coordinated with Rutledge, who meets with them
weekly and goes over their progress with them. When J.G. was still in the
home, Parents were assigned an FCM and parent mentor and were provided a
minimum of ten hours of in-home services. Since J.G.’s removal, Parents meet
only with a parent mentor. Rutledge recommended that Parents continue to
meet parent mentor and attend parenting classes in order to learn responsibility
and become more proactive parents.
[14] Mother has been having visitation with J.D. twice a week for up to two hours
each visit. Mother has not missed any visits and the facilitator Duane Wade
does not have any safety concerns. Wade indicated, however, that there have
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been times when J.D. needed to use the bathroom and that Mother was unable
to understand the gestures he made signaling his need to go.
IV. Children’s Current Placements
[15] Since December 19, 2014, J.D. has been placed with C.D. in southern Indiana.
Also residing in the home is C.D.’s mother, her husband, and her adopted
daughter. Since being placed with C.D., J.D. has suffered no more bruising or
marking to his face and has not been observed hitting his head while sleeping.
J.G. is placed with her paternal grandmother.
V. CHINS Proceedings
[16] On December 23, 2014, DCS filed a petition alleging the Children to be CHINS
after J.D. presented at St. Francis Hospital with injuries inconsistent with
Parents’ explanations. The same day, the juvenile court ordered J.D. placed
with C.D. J.G. remained in Parents’ care at that time.
[17] On February 4, 2015, DCS moved for the removal of J.G. from Parents’ care
due to their failure to provide proper medical care. The same day, the juvenile
court authorized J.G.’s removal and placement in relative care. On March 3,
2015, the juvenile court held a fact-finding hearing on the CHINS petition. On
April 13, 2015, the juvenile court found the Children to be CHINS. The
juvenile court’s order provided as follows:
This matter came before the Court on March 3, 2015 for
evidence on a Petition Alleging Child in Need of Services
(“CHINS”) petition filed on December 23, 2014. Petitioner,
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Indiana Department of Child Services (“DCS”) appeared by
counsel Aaron Milewski and Family Case Manager Jennifer
Troxail.
The guardian ad litem appeared by Jill English-Cheatam.
Respondent [Mother] appeared in person and by counsel, Mary
Margaret Montgomery. Respondent [Father] appeared in person
and by counsel, Kevin Kolbus. Respondent [C.D.] appeared in
person and by counsel, Andrew Arnett. Upon evidence
presented, the Court now finds the following by the
preponderance of the evidence:
1. [J.D.] is a minor child, date of birth February 21, 2011.
2. [J.G.] is a minor child, date of birth September 9, 2004.
3. [Mother] is [J.D.] and [J.G.]’s mother.
4. [C.D.] is the father of [J.D.].
5. [Father] is the father of [J.G.].
6. At the time of the filing of the petition, the children resided
with [Mother] and [Father] at 2630 Fox Harbour Lane in
Indianapolis, Indiana.
7. On December 19, 2014, [J.D.] was observed to have
bruising to the front of his forehead, the left side of his forehead
and his left eyelid. [J.D.] was also observed to have a bloody
nose.
8. [Mother] and [Father] each testified that they did not
witness [J.D.] sustain these injuries. However, [Mother] testified
that she believes [J.D.] inflicted the injuries upon himself by
striking his head against the wall while sleeping. [Father]
testified that he believes that [J.D.] either inflicted the injuries or
that he could have tripped or fallen on a toy.
9. This is not the first occasion where [J.D.] was observed to
have sustained an unexplained injury while in [Mother]’s care.
In February or March of 2014, [J.D.] was also observed to have
bruising to both sides of his face.
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10. [J.D.] has been placed with his father, [C.D.], since the
filing of this action. [C.D.] does not currently have custody of
[J.D.].
11. Subsequent to [J.D.]’s removal from [Mother] and
[Father]’s care, the service providers began having concerns
regarding [J.G.]’s placement in [Mother] and [Father]’s care.
These concerns included illicit substance use on the part of each
parent, concerns that the parents are driving with [J.G.] without
a valid driver’s license or car insurance and concerns that [J.G.]
was spending too much time lying on her back. The providers
working with the family would not be comfortable with [J.G.]
returning to [Mother] and [Father]’s care until these issues are
addressed.
12. The Department of Child Services also became concerned
for the parents’ ability to care for children due to their
determination that [J.D.] had not seen a doctor in one and a half
years and that [J.G.] had missed regular doctor appointments as
well.
13. [J.D.]’s physical or mental condition is seriously impaired
or seriously endangered due to an injury by the act or omission of
the child’s parent, guardian or custodian. On at least two
occasions, [J.D.] has sustained injury to both sides of his face
while in [Mother]’s care. The Court does not find [Mother]’s
explanation that [J.D.] inflicted the most recent injuries in his
sleep to be credible. Neither the daycare providers who worked
with [J.D.] prior to his removal from [Mother]’s care nor the
child’s current care providers have witnessed any behaviors from
[J.D.] which would support this scenario.
14. [J.D.’s] and [J.G.]’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. Until the
underlying issues regarding the origin of [J.D.]’s injuries can be
addressed, both children are endangered in the care of custody of
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[Mother] and [Father]. Additionally, the failure on the part of
[Mother] and [Father] to ensure that the children attend their
regularly scheduled medical appointments places each child in
danger due to their young age and the necessity to ensure that
they receive regular care. While no concerns exist regarding
[C.D.]’s care of [J.D.] at this time, his lack of custody renders
him unable to provide [J.D.] with care without further court
order.
15. [J.D.] and [J.G.] need care, treatment, or rehabilitation
that they are not receiving and are unlikely to be provided or
accepted without the coercive intervention of the court.
Therapeutic services are necessary to identify and ameliorate the
causes of [J.D.]’s injuries and [Mother] and [Father]’s inability to
ensure that the children receive regular care.
Therefore, the coercive intervention of the Court is needed to
ensure that the causes are therapeutically addressed prior to the
children being returned to [Mother] and [Father]’s care.
IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED that [J.D.] and [J.G.] are children in need of services
under Indiana Code 31-34-1-1 and 31-34-1-2.
Father’s App. pp. 130-31.
[18] On May 6, 2015, the juvenile court held a dispositional hearing, and entered a
Parental Participation Order, which provides as follows:
The Court, having considered the issue of Participation in a
treatment program and having conducted a hearing, now orders
that a Participation Decree should be entered.
IT IS THEREFORE ORDERED, that [Father] and [Mother are]
ordered to do the following:
HOME BASED THERAPY: [Father] and [Mother] will become
engage in a home-based therapy program referred by the [FCM]
and follow all recommendations.
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ADDITIONAL: [Father] and [Mother] will comply with the
parent mentor arranged through Centerpointe Systems of Care
Program and follow all recommendations of this provider.
Father’s App. p. 142.
[19] Father and Mother both appeal. Father’s argument, restated, is that DCS
presented insufficient evidence to sustain the juvenile court’s finding that J.G. is
a CHINS. Mother contends that DCS presented insufficient evidence to sustain
the juvenile court’s findings that J.D. and J.G. are CHINS.
Discussion and Decision
[20] With respect to CHINS determinations, the Indiana Supreme Court has held 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.E., 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 [juvenile] court’s decision and
reasonable inferences drawn therefrom. Id. We reverse only
upon a showing that the decision of the [juvenile] 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
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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 (Ind. 2012) (footnote omitted).
[21] Indiana Code section 31-34-1-1 provides that a child is a CHINS before the
child becomes eighteen years of age if:
(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.
[22] Indiana Code section 31-34-1-2 provides that a child is a CHINS before the
child becomes eighteen years of age if:
(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:
(A) the child is not receiving; and
(B) is unlikely to be provided or accepted without the coercive
intervention of the court.
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I. Father
A. J.G.
[23] Father argues that DCS failed to produce sufficient evidence to sustain a finding
that J.G. is a CHINS. Father argues, essentially, that DCS failed to prove the
theory he claims DCS argued below, namely, that J.G. was endangered due to
an injury resulting from an act or omission by Parents. See Ind. Code § 31-34-1-
2(1).
[24] Father’s argument ignores the fact that, despite what DCS argued below, the
juvenile court clearly found J.G. to be a CHINS based on the conditions listed
in Indiana Code section 31-34-1-1, namely that “[J.G.]’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.” Father’s App. p. 131.
[25] Moreover, we conclude that the juvenile court’s finding in this regard is amply
supported by the evidence. The juvenile court’s order indicates that it based
this finding on concerns about Parents’ possible drug use, Parents’ driving with
J.G. despite neither having a valid driver’s license, the flat spot on J.G.’s head,
and Parents’ failure to ensure attendance at scheduled medical appointments.
Also very compelling, although not specifically cited by the juvenile court, are
indications that J.G. was not taken to an emergency room after J.G.’s
pediatrician told Mother to do so immediately. DSC produced sufficient
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evidence that J.G. was endangered by Parents’ refusal or neglect to provide her
with necessary medical care.
[26] Father also argues that DCS produced insufficient evidence to establish that
J.G. was in need of care she was unlikely to receive without coercive
intervention of the juvenile court. Again, we disagree. DCS produced evidence
that J.G. had missed medical appointments, her immunizations were not
updated until after DCS became involved, and she had a flat spot on her head,
which is a sign of potential neglect. More significant were Parents’ actions (or,
rather, inaction) after J.D.’s removal in mid-December of 2014. Although
Mother agreed to spend more “tummy time” with J.G. after Rutledge’s
intervention, she resisted acknowledging that the flat spot on J.G.’s head was a
result of neglect, claiming that “the baby has her dad’s head.” Tr. p. 112.
Another and far-more-troubling indicator of Parents’ unwillingness to provide
J.G. with necessary medical care occurred on January 12, 2015. When J.G.’s
pediatrician diagnosed her with low oxygen saturation level, Mother was
instructed to immediately take J.G. to an emergency room, but there is no
record that she did so. So, even after J.D. had been removed from the Parents’
home and DCS became actively involved in their lives, the record indicates that
Parents still failed to provide J.G. with adequate medical care. Father has not
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established that the juvenile court abused its discretion in finding J.G. to be a
CHINS.3
II. Mother
[27] Mother challenges the juvenile court’s CHINS findings with respect to both
J.D. and J.G. Specifically, Mother argues that DCS failed to produce sufficient
evidence to sustain a finding that J.D.’s injuries were anything other than
accidental and that State intervention was required to provide either child with
necessary care.
A. J.D.
[28] The juvenile court found that “[J.D.]’s physical or mental condition is seriously
impaired or seriously endangered due to an injury by the act or omission of the
child’s parent, guardian or custodian” pursuant to Indiana Code section 31-34-
1-2. Although not specifically cited by the juvenile court, we conclude that
Indiana Code section 31-34-12-4 also applies in this case:
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:
3
Father also argues that the burden of proof was improperly shifted to Parents to prove that J.D.’s injuries
were not the result of neglect or abuse. This argument, however, is only advanced to challenge J.G.’s
removal, on the alleged basis that the juvenile court removed J.G. because of what had happened to J.D. As
mentioned in the body, however, the juvenile court clearly based its finding that J.G. is a CHINS on evidence
particular to her and not because of anything that happened to J.D. Because Father’s argument is based on a
false premise, we need not address it further.
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(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.
[29] The juvenile court based its CHINS determination on evidence that in March
and December of 2014, J.D. suffered injuries while in Mother’s care,
specifically, bruising to the face and, in December, also a bloody nose. Mother
points to testimony that J.D. lacked coordination and was given to aggressive
outbursts, as well as her own testimony that J.D. banged his head when asleep.
The juvenile court, however, was in the best position to evaluate the evidence
and specifically found Mother’s testimony regarding how J.D. was injured in
December of 2014 to be incredible. Moreover, Mother ignores other evidence,
such as testimony that J.D. has never been observed “flailing” in his sleep while
napping at Head Start, Tr. p. 151, and, since being placed with C.D., has
suffered no bruising or marking to his face and has not been observed to bang
his head while sleeping. The juvenile court was fully justified in finding J.D. to
be a CHINS due to the injuries he suffered while in Mother’s and Father’s care,
injuries that were not explained by evidence that the court found credible.
Mother’s argument in this regard is an invitation to reweigh the evidence,
which we will not do.
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B. J.G.
[30] Mother also argues that DCS produced insufficient evidence to support a
finding that J.G. is a CHINS. In the end, Mother’s arguments are essentially
the same as Father’s, i.e., that the juvenile court gave too much weight to
certain evidence supporting its CHINS determination and failed to credit
certain evidence that would undermine it. As we have already determined,
however, DCS produced ample evidence that Parents have failed to provide
J.G. with appropriate medical care that was unlikely to be provided without the
intervention of the State. Mother’s amounts to nothing more than an invitation
to reweigh the evidence, which we will not do.
The judgment of the juvenile court is affirmed.
Baker, J., and Pyle, J., concur.
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