In the Matter of J.M. (Minor Child), Child in Need of Services, and, S.M. (Mother) and J.M. (Father) v. Indiana Department of Child Services (mem. dec.)
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 20 2016, 7:40 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 APPELLANTS ATTORNEYS FOR APPELLEE
Debra S. Andry Gregory F. Zoeller
Jennifer G. Schlegelmilch Attorney General of Indiana
Lawrence County Public Defender
Agency Robert J. Henke
Bedford, Indiana James D. Boyer
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of J.M. (Minor December 20, 2016
Child), Court of Appeals Case No.
47A01-1606-JC-1299
Child in Need of Services, Appeal from the Lawrence Circuit
Court
and, The Honorable Andrea K.
McCord, Judge
S.M. (Mother) and J.M. The Honorable John M. Plummer,
(Father), III, Referee
Trial Court Cause No.
Appellants-Respondents, 47C01-1601-JC-1
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v.
Indiana Department of Child
Services,
Appellee-Petitioner.
Barnes, Judge.
Case Summary
[1] S.M. (“Mother”) and Ja.M. (“Father”) (collectively, “Parents”) appeal the trial
court’s order finding their daughter, J.M., to be a child in need of services
(“CHINS”). We affirm.
Issues
[2] Parents raise two issues, which we restate as:
I. whether the trial court abused its discretion by
admitting evidence concerning the earlier
CHINS proceeding regarding Mother’s
daughter, J.B.; and
II. whether the evidence is sufficient to prove
J.M. is a CHINS.
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Facts
[3] On July 27, 2015, the Department of Child Services (“DCS”) removed nine-
year-old J.B. from the care of Parents due to physical abuse. Father is her step-
father.1 DCS filed a CHINS petition, which alleged:
[J.B.] suffered injuries to her eyes, which appeared to be
consistent with inflicted injuries. [Parents] were the only
caregivers present when the injury occurred. [J.B.] has had past
inflicted bruising and disclosed to her grandmother that [Father]
hit her. [Parents] both admitted to “popping” [J.B.] multiple
times on the head and that [Father] continued “popping” her
when [J.B.] got into a “fetal position.” [Father] also admitted to
making [J.B.] do “situps,” while holding her wrists and banging
her head off the ground.
State’s Ex. 1 p. 1. DCS referred Parents for home based services, but Parents
were not compliant. During October and November 2015, they left six
meetings early, and in December 2015, they failed to attend any meetings.
Father failed to attend supervised visits with J.B. on October 30, 2015, and
November 15, 2015, and Parents canceled their visit on November 20, 2015. A
fact-finding hearing was scheduled for January 8, 2016.
[4] On December 31, 2015, J.M. was born to Parents, and DCS immediately
removed her from Parents’ care. DCS filed a CHINS petition regarding J.M.
on January 4, 2016, and alleged that a CHINS petition had been filed regarding
1
J.B.’s biological father is deceased.
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J.B., that Parents had been non-compliant with services, and that the
environment in Parents’ home endangered J.M.’s physical and emotional well-
being.
[5] During a meeting on January 25, 2016, to discuss Parents’ participation in
services in J.B.’s CHINS action, Father became angry and beat his fist on the
table. Father said that he did not have anger issues, that he did not need
services, and that he would not participate in them unless ordered to do so.
During the meeting, Mother agreed with Father and was “vocal.” Tr. p. 55.
They were “both visibly upset.” Id.
[6] On February 10, 2016, the trial court entered an order finding that J.B. was a
CHINS. The trial court found:
[J.B.’s] health and safety was seriously endangered as the result
of physical abuse and neglect. The evidence reveals that [J.B.],
nine years old at the time of the fact finding hearing, has serious
emotional issues which [Parents] are not able to properly address
without the coercive intervention of the Court. [Parents] have
admitted to hitting [J.B.] in the face when she misbehaves.
[Father] admitted that he has smacked [J.B.] in the mouth
multiple times as she tried to protect her face with her arms and
as she got into the fetal position. [J.B.] has sustained significant
bruising that was likely caused by physical abuse. [Father] has
anger management problems that he needs to address with a
professional and which have not been sought prior to DCS and
court intervention. [J.B.] is behind in school because she has
never had a formal education. Only after [J.B.] was removed
from parental care by DCS did [J.B.] become enrolled in a formal
school setting.
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State’s Ex. 3 p. 5. After J.B.’s adjudication as a CHINS, Parents started to
participate more in their services.
[7] A fact-finding hearing regarding J.M.’s CHINS action was held on March 4,
2016. Parents objected to the admission of evidence regarding J.B.’s CHINS
action, but the trial court overruled the objection. The trial court granted
DCS’s CHINS petition regarding J.M. and found:
DCS has proved by a preponderance of the evidence that
pursuant to I.C. 31-34-1-1, [J.M.], born December 31, 2015, is a
child [in] need of services as alleged in the petition. [J.M.’s]
physical or mental condition is seriously impaired or seriously
endangered as a result of evidence supporting and surrounding
the parents’ prior and current involvement with DCS in the case
regarding [J.M.’s] half-sibling, [J.B.]. [J.B.] remains removed
from parental care as a result of the likelihood that she was
physically abused by Mother and [Father]. The acts and
omissions by [Parents] with regard to [J.M.’s] older sibling,
created a CHINS condition for [J.M.] (i.e. are detrimental to the
well-being of [J.M.]), which the Court has serious concerns that
such actions and conditions have not been fully remedied, and
will not be, in the absence of Court intervention.
If the Court is unable to ensure the safety of [J.M.’s] older half-
sibling while in parental care due to the likelihood of physical
abuse perpetrated against her by [Parents], then it would be
absurd for the Court to find that [J.M.], an infant, would be safe
from abuse in the home. The Court has the same safety concerns
for [J.M.] as it has in the active CHINS cases [sic] regarding
[J.B.]. The Court has additional concern for [J.M.] in that unlike
her older half-sibling, [J.M.] is non-verbal, incapable of
communicating inappropriate adult behavior.
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DCS has proved by a preponderance of the evidence that [J.M.]
needs care that is unlikely to be provided or accepted without the
coercive intervention of the Court. Although now participating
in services, Mother and Father have previously made statements
and have acted in ways which indicate that they believe the
services provided to them are unnecessary.
For these reasons, the Court finds that it is in the best interests of
[J.M.] that the Court adjudicate her a [CHINS].
Appellants’ App. Vol. II pp. 37-38. Parents now appeal.
Analysis
I. Admission of Evidence
[8] Parents argue that the trial court abused its discretion by admitting evidence of
J.B.’s CHINS action during J.M.’s CHINS fact-finding hearing. We review a
trial court’s admission or exclusion of evidence for an abuse of discretion. In re
Des.B., 2 N.E.3d 828, 834 (Ind. Ct. App. 2014). A trial court abuses its
discretion only if its decision is clearly against the logic and effect of the facts
and circumstances before the court. Id.
[9] Parents argue that the trial court should not have admitted evidence concerning
J.B.’s CHINS action. Specifically, Parents contend that the trial court should
not have admitted the CHINS petition, order on detention hearing, and order
on the fact-finding hearing in J.B.’s case. Parents argue that the evidence was
“extremely prejudicial” and only involved a single incident that “was neither
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close in time nor sufficient to establish character of the parents as to how
Mother or Father would treat a newborn.” Appellant’s Br. p. 18.
[10] Indiana Code Section 31-34-12-5 provides that such evidence is admissible in
CHINS actions:
Evidence that a prior or subsequent act or omission by a parent,
guardian, or custodian injured or neglected a child is admissible
in proceedings alleging that a child is a child in need of services
to show the following:
(1) Intent, guilty knowledge, the absence of mistake or accident,
identification, the existence of a common scheme or plan, or
other similar purposes.
(2) A likelihood that the act or omission of the parent, guardian,
or custodian is responsible for the child’s current injury or
condition.
Ind. Code § 31-34-12-5 (formerly Ind. Code § 31-6-7-13 (repealed by Pub. L.
No. 1-1997, § 157 (eff. July 1, 1997)). We have held that this statute allows
“evidence in CHINS proceedings of a parent’s prior acts or omissions toward
his children in conjunction with subsequent injuries sustained by another child
in the parent’s care.” Matter of J.L.V., Jr., 667 N.E.2d 186, 190 (Ind. Ct. App.
1996) (discussing the prior version of the statute). Further, “[t]he standards set
forth in [the CHINS statutes] contemplate that a parent’s past, present, and
future ability to provide sufficient care for his or her child forms the basis for a
CHINS adjudication and that the parent’s character is an integral part of
assessing that ability.” Id. Consequently, the evidence of J.B.’s CHINS action
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was admissible to show Parents’ character and ability to care for J.M. The trial
court properly admitted the evidence concerning J.B.’s CHINS action.
II. Sufficiency
[11] Parents next challenge the trial court’s finding that J.M. is a CHINS. “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 K.D., 962 N.E.2d 1249, 1253 (Ind. 2012) (quoting In re
N.E., 919 N.E.2d 102, 105 (Ind. 2010)). We neither reweigh the evidence nor
judge the credibility of the witnesses. Id. 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.
[12] “There are three elements DCS must prove for a juvenile court to adjudicate a
child a CHINS.” Id. DCS must first prove the child is under the age of
eighteen. Id. DCS must then prove that at least one of eleven different
statutory circumstances exists that would make the child a CHINS. Id. 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.” Id.
[13] Here, the trial court found J.M. to be a CHINS based on Indiana Code Section
31-34-1-1, which provides:
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A child is a child in need of services if before the child becomes
eighteen (18) years of age:
(1) the child’s physical or mental condition is seriously
impaired or seriously endangered as a result of the
inability, refusal, or neglect of the child’s parent, guardian,
or custodian to supply the child with necessary food,
clothing, shelter, medical care, education, or supervision;
and
(2) the child needs care, treatment, or rehabilitation that:
(A) the child is not receiving; and
(B) is unlikely to be provided or accepted without the
coercive intervention of the court.
[14] Parents argue that DCS failed to present evidence that their actions or inaction
seriously endangered J.M., that they were meeting J.M.’s needs before she was
removed, and that coercive intervention of the trial court in J.M.’s case was
unnecessary. According to Parents, they were appropriately caring for J.M.
after her birth, and the CHINS finding was based solely on the prior CHINS
finding regarding J.B.
[15] Parents’ argument that they were properly caring for J.M. is merely a request to
reweigh the evidence, which we cannot do. We have held that the trial court
properly admitted evidence of J.B.’s CHINS action, which was pending a fact-
finding hearing at the time of J.M.’s birth. J.B.’s CHINS action was based
primarily on Parents’ physical abuse of J.B. At the time of J.M.’s birth, Parents
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were refusing to participate in services, and it was evident that Father’s anger
issues persisted. Parents began participating in the services only after J.B. was
found to be a CHINS and parents were ordered to do so. At the time of J.M.’s
CHINS fact-finding hearing, Parents had only been participating in services for
a short time, and much more progress was necessary. Given the physical abuse
of J.B., Parents’ earlier lack of cooperation, and Father’s continuing anger
issues, the trial court properly found J.M. to be a CHINS.
Conclusion
[16] The trial court properly concluded that J.M. is a CHINS. We affirm.
[17] Affirmed.
Kirsch, J., and Robb, J., concur.
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