MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 29 2016, 8:46 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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Julia Blackwell Gelinas Gregory F. Zoeller
Thomas W. Farlow Attorney General of Indiana
Jenai M. Brackett
Frost Brown Todd LLC Robert J. Henke
Indianapolis, Indiana Deputy Attorney General
James D. Boyer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of L.S. (Minor September 29, 2016
Child), a Child in Need of Court of Appeals Case No.
Services, 49A05-1603-JC-491
Appeal from the Marion Superior
D.S., Court
Appellant-Respondent, The Honorable Marilyn A.
Moores, Judge
v.
Trial Court Cause No.
Indiana Department of Child 49D09-1505-JC-1608
Services,
Appellee-Petitioner.
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Najam, Judge.
Statement of the Case
[1] D.S. (“Father”) appeals the juvenile court’s order finding his daughter L.S.
(“Child”) to be a child in need of services (“CHINS”). Father presents two
issues for our review, which we consolidate and restate as whether the evidence
is sufficient to support the CHINS adjudication.
[2] We affirm.
Facts and Procedural History
[3] Father and P.S. (“Mother”) married in November 2007, and Child was born in
June 2008. On April 28, 2015, the Indiana Department of Child Services
(“DCS”) received a report that, on April 26, Father had “punched [Mother] in
the face” while Mother was holding Child and had attempted to prevent
Mother from calling police. Resp’t Ex. A. Father was arrested for, among
other things, domestic battery and battery in the presence of a child, and
Mother obtained a No Contact Order against Father.1 Accordingly, Father
moved out of the family home.
[4] On May 13, DCS filed a petition alleging that Child was a CHINS. During a
factfinding hearing held over the course of three days in August and September,
1
Initially, that order prohibited Father from contact with both Mother and Child, but Father was
subsequently granted supervised visitation with Child.
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Father and Mother testified that they were not living together and planned to
dissolve the marriage. Child was living with Mother and had frequent
supervised visitation with Father. By all accounts, Child was happy, thriving,
and doing very well in school. And, while Child had not been diagnosed with
any particular psychological disorder, Mother testified that, in her opinion,
Child was suffering from anxiety. Accordingly, Child was seeing a therapist on
a regular basis. At the conclusion of that hearing, the juvenile court issued the
following findings and conclusions in support of its determination that Child
was a CHINS:
3. On or about April 25, 2015[,] and April 26, 2015, Mother and
[Child] returned to the marital residence located at 4460 Sylvan
Road, Indianapolis, Indiana, shortly after midnight. They were
returning from a birthday party, which Father had attended
separately and from which he had left earlier.
4. [Child] had fallen asleep in the car on the way home, and
Mother was attempting to carry her into the home in her arms.
Unable to knock on the locked door, Mother kicked it and waited
for Father to open the door. When Father did not come to the
door, she kicked the door more loudly.
5. Father had fallen asleep and was upset that Mother and
[Child] were returning so late.
6. He finally opened the door, yelled, “What the fuck?” and
struck Mother on the side of her head, knocking off her hat, with
[Child] still in her arms.
7. [Child] was awake at this point and observed her Father hit
her mother.
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8. Mother then carried [Child] to her room and put her on her
bed.
9. Mother then returned to where Father was and they argued.
10. Mother took Father’s cell phone and he physically attempted
to take it from her. She dialed 911 to seek assistance from law
enforcement and Father tried to prevent her from doing so.
11. Father was unable to prevent Mother’s call to IMPD and
officers responded to their home.
12. Mother’s wrist was visibly bruised by Father’s actions.
13. Father was arrested for Interfering with Reporting of a Crime,
Domestic Battery, Battery Resulting in Bodily Injury, and Battery
in the Presence of a Child and was charged with same under
cause number 49G16-1504-F6-014416, which charges remained
pending at the time of fact-finding.
14. Initially, the criminal court issued a No Contact Order
preventing Father from having contact with Mother and [Child];
however, this was later modified to permit Father to have
supervised parenting with [Child].
15. This incident of domestic violence between Mother and
Father in [sic] was not the first to occur in the presence of
[Child]. Previously, Father had thrown a plastic garbage can lid
at Mother which struck her in head. In another incident Father
threw water on Mother and [Child].
16. Because of a domestic violence incident in 2012, where
Father injured Mother, Mother’s L4 and L5 discs were damaged
and she had to undergo 2 years of treatment.
17. Father was also verbally abusive to Mother, calling her “fat”
and “ugly.”
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18. In March, 2015, Father kicked Mother in the back, causing
her pain.
19. [Child] stated that it makes her mad when her parents argue
and physically fight.
20. She has clearly been affected by the violence she has seen
between her parents. She reported that it [sic] her father didn’t
know who she and her mother were when he struck her mother
in the head that night in April, 2015. The Court finds that this is
young [Child]’s way of trying to reconcile in her mind seeing her
father whom she loves, hitting her mother who she also loves.
21. [Child] demonstrates anxiety symptoms such as picking at
her nails and saying her stomach hurts.
22. [Child] demonstrates protective, mothering behavior toward
her mother. In the presence of FCM Licorish-Holly, [Child] told
her mother “we’re not doing this right now” when her mother
started to cry and then wiped away her tear.
23. Father seems to believe that [Child]’s current anxiety can be
explained by her parents’ separation and that because he and his
family surround [Child] with love and support, attend to her
every need, that she has been unaffected by the violence she has
seen her father visit upon her mother on multiple occasions.
24. As found in In Re: The Termination of the Parent-Child
Relationship of E.M. and El.M., 4 N.E.3d 636, 644 (Ind. 2014),
“Father’s violence towards (sic) Mother had also [‘]abused[’]
E.M. and El.M. . . .[”] “[M]any people assume that very young
children are not affected at all” by violence between their parents,
“erroneously believing that they are too young to know or
remember what has happened.” Joy D. Osofsky, The Effects of
Exposure to Violence on Young Children, 50 Am. Psychologist 782,
783 (1995). But “even in the earliest phases of infant and toddler
development, clear associations have been found between
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exposure to violence and post-traumatic symptoms and
disorders.” Id. Indeed, “[t]he developing brain is most
vulnerable to the impact of traumatic experiences” before age
one—and during the first three years, those experiences actually
change the organization of the brain’s neural pathways. Abigail
Sterne et al., Domestic Violence and Children: A Handbook for
Schools and Early Years Settings, 19 (2010) (citations omitted);
Allan N. Schore, The Effects of Early Relational Trauma on Right
Brain Development Affect Regulation, and Infant Mental Health, 22
Infant Mental Health J. 201, 209-10 (2001).
25. Again, as found in In Re: The Termination of the Parent-Child
Relationship of E.M. and El.M, supra, “[a] lack of beatings therefore
does not equate to a lack of abuse, nor does the children’s tender
age equate to a lack of harm. Infants as young as fifteen months
exhibit behavioral disturbances from spousal violence. Charles
H. Zeanah, et al, Disorganized Attachment Associated with Partner
Violence: a Research Note, 20 Infant Mental Health J. 77, 82-83
(1999).” And for later infants and toddlers like El.M. and E.M.,
the symptoms are “very similar to post-traumatic stress disorder
in adults.” Joy D. Osofsky, The Impact of Violence on Children, 9
Domestic Violence & Children 33, 36 (1999) (citing Osofsky et
al., The Effects of Trauma on Young Children: A Case of Two-Year-Old
Twins, 76 Int’l J. Psychoanalysis 595 (1995)). But “[y]ounger
children generally do not have the ability to express their feelings
verbally”—so their “observable reactions . . . may not tally with
their emotional reactions,” and “[i]t may take some time before
children are able to show any reaction at all” despite being
affected. Sterne et al., supra, at 20.” 3 N.E.3d at 644-5.
26. [Child]’s physical and mental condition is seriously impaired
and endangered as a result of the inability, refusal or neglect of
her parents to provide her with necessary shelter and supervision,
as provided in Ind. Code §31-34-1-1.
27. Prior to the domestic violence incident in April, 2015, Father
claimed that while under a doctor’s care, [he] had become
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dependent on opiate prescription pain medication. However, he
had also taken some of Mother’s opiate prescription pain
medications. He continued his abuse of these medications until
immediately after his arrest for the domestic violence which
precipitated the instant action.
28. Mother had observed Father slurring his speech while
abusing Vicodin.
29. Father in the months immediately preceding April, 2015 paid
little attention to [Child], preferring to isolate himself from them
and stay in his room or the garage most of the time.
30. Maternal grandmother Judy Stewart noted that both parents
had been struggling with substance abuse and marital problems
for some time, but the family did not intervene or approach
them.
31. Following his arrest, Father’s family did intervene with
regard to his substance abuse and he entered Valle Vista Hospital
for drug dependence treatment. After a week at Valle Vista,
Father left. He then entered Fairbanks Hospital for seven (7) or
(8) days of continued in-patient treatment. Following his
discharge from Fairbanks, Father said he was recommended to
complete 18 weeks of intensive outpatient drug treatment, which
he stated he did. However, he offered no documentation thereof.
He has had no positive drug screens.
32. Father claimed his treatment at Fairbanks included conflict
resolution, anger management and triggers for substance abuse,
although he offered no documentation to support these
assertions.
33. Both parents smoked marijuana on occasion prior to Father’s
arrest in April, 2015.
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34. Father was previously arrested for and convicted of
possession of marijuana in Hamilton County. He was placed on
probation and had to undergo substance abuse classes, but
continued to smoke marijuana.
35. Father has been in [Child]’s presence while under the
influence of the opiate pain medications he was abusing, as well
as when he was under the influence of marijuana.
36. Caregivers who are under the influence of illegal substances
or in the grips of drug dependence do not provide a child with the
requisite level of supervision, nor do they provide a child with an
appropriate home environment.
37. [Child]’s physical and mental condition is seriously impaired
and endangered as a result of the inability, refusal or neglect of
her parents to provide her with necessary shelter and supervision,
as provided in Ind. Code §31-34-1-1.
38. It is clear that the coercive intervention of the court is
necessary, in that Father does not believe that his violence
toward Mother has affected [Child].
39. It is further clear that the coercive intervention of the court is
necessary because it was not until he was arrested for domestic
violence charges and forced from his home by a No Contact
Order that he sought help for his opiate drug dependence.
Appellant’s App. at 114-16. This appeal ensued.
Discussion and Decision
[5] Father contends that the evidence is insufficient to support the trial court’s
determination that Child is a CHINS. Our supreme court has explained the
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nature of a CHINS proceeding and appellate review of a CHINS determination
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.
S.S. v. Ind. Dep’t of Child Servs. (In re K.D.), 962 N.E.2d 1249, 1253-54 (Ind. 2012)
(footnote omitted).
[6] Here, the juvenile court issued findings and conclusions sua sponte. Therefore,
as to the issues covered by the findings, we apply the two-tiered standard of
whether the evidence supports the findings, and whether the findings support
the judgment. J.B. v. Ind. Dep’t of Child Servs. (In re S.D.), 2 N.E.3d 1283, 1287
(Ind. 2014). But we review the remaining issues under the general judgment
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standard, under which a judgment will be affirmed if it can be sustained on any
legal theory supported by the evidence. Id.
[7] DCS alleged that Child was a CHINS pursuant to Indiana Code Section 31-34-
1-1, which provides as follows:
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 at
1287.
[8] Here, Father contends that the evidence is insufficient to prove either that: (1)
Child’s mental condition is seriously impaired or seriously endangered as a
result of the inability, refusal, or neglect of the parents to supply Child with
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necessary food, clothing, shelter, medical care, education, or supervision; or (2)
Child needs care, treatment, or rehabilitation that is unlikely to be provided or
accepted without the coercive intervention of the court. We cannot agree.
[9] In N.L. v. Indiana Department of Child Services (In re N.E.), 919 N.E.2d 102, 106
(Ind. 2010), our supreme court upheld a CHINS determination where the
evidence showed that the “Mother [had] failed to protect N.E. and her siblings
from ongoing domestic violence between herself and the alleged father of her
youngest child and . . . there had been several incidents of domestic violence
against Mother in the presence of her children.” Here, Father does not dispute
the trial court’s findings regarding the episodes of domestic violence against
Mother in Child’s presence. And Mother testified that Child is “definitely
safer” since the CHINS proceedings began. Tr. at 61. Mother testified that
Child is benefitting from therapy, but that there is still “a lot of progress to
make.” Id. at 62. Mother stated that her family “would benefit from DCS
being involved” because the proceedings have helped Mother
realize that what [she] was going through was abuse and needs to
stop and that [she] cannot be [in] a situation like that any, ever
[sic] again and [she] feel[s] like for [Child] . . . this cannot be
swept under the rug. [Child] has seen and heard things, we just
can’t just [sic] ignore. [Child] needs someone professional to talk
to.
Id. at 63. In other words, Mother testified that both she and Child were victims
of domestic violence and expressed her desire that Child be adjudicated a
CHINS.
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[10] Again, the juvenile court found that Child: “has clearly been affected by the
violence she has seen between her parents”; “demonstrates anxiety symptoms
such as picking at her nails and saying her stomach hurts”; and “demonstrates
protective, mothering behavior toward her mother.” Appellant’s App. at 115.
Accordingly, the juvenile court concluded that Child’s physical and mental
condition is seriously impaired and endangered as a result of the inability,
refusal, or neglect of her parents to provide her with necessary shelter and
supervision. Further, the juvenile court concluded that coercive intervention of
the court is necessary because “Father does not believe that his violence toward
Mother has affected [Child]” and because “it was not until he was arrested for
domestic violence charges and forced from his home by a No Contact Order
that he sought help for his opiate drug dependence.” Id. at 116.
[11] DCS presented evidence that Child was exposed to domestic violence and, as
the juvenile court found, likely suffered as a result of that exposure. Mother
testified that she is concerned about Child’s anxiety, and, moreover, Mother
expressed her desire that Child remain a CHINS in order to continue with
services. We hold that the evidence is sufficient to support the juvenile court’s
adjudication of Child as a CHINS.
[12] Affirmed.
Vaidik, C.J., and Baker, J., concur.
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