In the Matter of D.T.T., A Child Alleged to be in Need of Services, M.T. v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 13 2017, 9:32 am

regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven Knecht Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana

Robert J. Henke
Deputy Attorney General

James D. Boyer
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of D.T.T. January 13, 2017
A Child Alleged to be in Need of Court of Appeals Case No.
79A02-1605-JC-1147
Services
Appeal from the Tippecanoe
Superior Court
M.T., The Honorable Faith A. Graham,
Appellant-Respondent, Judge
The Honorable Tricia L.
v. Thompson, Magistrate
Trial Court Cause No.
Indiana Department of Child 79D03-1601-JC-27
Services,
Appellee-Petitioner.

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 Altice, Judge.

Case Summary

[1] D.T.T. (Child) was adjudicated a Child in Need of Services (CHINS) by the

Tippecanoe Superior Court. M.T. (Father) appeals, arguing that the

Department of Child Services (DCS) did not present sufficient evidence to

support the trial court’s determination.

[2] We affirm.

Facts & Procedural History

[3] Child was born on May 5, 2007, to A.C. (Mother)1 and Father. In December

2015, Mother and Father were separated and Father had custody of Child. On

December 13, 2015, police responded to Father’s home because of an alleged

domestic dispute between Father and Mother. Child was present in the home

when the altercation occurred. Officer Jason Huber of the Tippecanoe County

Sheriff’s Department was the second officer to arrive and spoke with Mother,

who was at the end of the driveway. Officer Huber noted that Mother was

“[e]xtremely upset” and crying and that she had redness, swelling, and

abrasions around her neck. Transcript at 7. Mother told Officer Huber that

Father had shoved her head and neck into a car door. While Mother was

talking to Officer Huber, Child came around the side of the house and ran to

1
Mother does not participate in this appeal.

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 Mother. Officer Huber described Child as being “panicked and fearful.” Id. at

8. Father was ultimately arrested for domestic battery and Mother was

transported to the hospital by ambulance given her complaint of severe head

pain. On December 22, 2015, Mother sought and obtained a protective order in

which both she and Child were identified as protected persons. Mother sought

to have the protective order amended on January 19, 2016, in order for Father

to have access to Child.

[4] On January 22, 2016, DCS intervened upon learning that Mother and Child

were living in Father’s home in violation of the protective order. Child was

placed with his paternal uncle in Hamilton County. DCS filed a CHINS

petition on January 25, 2016. In the CHINS petition, DCS alleged that

“parents have a history of domestic violence” and noted that they were

involved in a previous CHINS action that was closed in October 2015.

Appellant’s Appendix Vol. II at 12. DCS further noted the December 2015

domestic violence incident and subsequent protective order, which Father and

Mother violated. At an initial hearing held on February 2, 2016, Mother and

Father both denied the allegations in the CHINS petition.

[5] A fact-finding hearing on the CHINS petition was held on March 4 and April 8,

2016. At both hearings, Father requested that Child be returned to his custody,

but the court denied both requests. On April 25, 2016, the trial court

determined Child to be a CHINS. A CHINS dispositional order and parental

participation decree were issued on April 28, 2016. Father filed his notice of

appeal on May 19, 2016. Additional facts will be provided as necessary.

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 Discussion & Decision

[6] Father argues that the court’s CHINS determination is not supported by the

evidence. When determining whether sufficient evidence exists in support of a

CHINS determination, we consider only the evidence most favorable to the

judgment and the reasonable inferences therefrom. In re S.D., 2 N.E.3d 1283,

1287 (Ind. 2014). This court will not reweigh the evidence or reassess the

credibility of the witnesses. Id. at 1286. When a juvenile court’s order contains

specific findings of fact and conclusions thereon, we engage in a two-tiered

review. In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014) (citing In re T.S., 906

N.E.2d 801, 804 (Ind. 2009)). First, we determine whether the evidence

supports the findings, and then, we determine whether the findings support the

judgment. Id. Findings are clearly erroneous when there are no facts or

inferences drawn therefrom that support them. Id. A judgment is clearly

erroneous if the findings do not support the juvenile court’s conclusions or the

conclusions do not support the resulting judgment. Id.

[7] CHINS proceedings are civil actions, and therefore, “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). On review, we

neither reweigh the evidence nor judge the credibility of the witnesses. Id. 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.

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[8] To meet its burden of establishing CHINS status, DCS must prove that the

child is under eighteen 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.

Ind. Code § 31-34-1-1. Although the acts or omissions of one or both parents

can cause a condition that creates the need for court intervention, the CHINS

designation focuses on the condition of the child rather than on an act or

omission of the parents. In re N.E., 919 N.E.2d at 105. “[T]he purpose of a

CHINS adjudication is to protect children, not punish parents.” N.L. v. Ind.

Dep’t of Child Servs, 919 N.E.2d 102, 106 (Ind. 2010).

[9] In its order finding Child to be a CHINS, the court made the following findings:

2. [Child] was previously found to be a Child in Need of Services
(CHINS) on January 8, 2015.

3. In that case, the Court found that parents have an extensive
history of domestic violence with both parents becoming violent
at times while [Child] was present. [Child] was able to recount
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 details of incidents to the DCS investigator which Mother
admitted were true.

4. Prior to that CHINS case, parents had separated but
continued to have tumultuous interactions with each other.
Despite the history of violence between them, Mother discussed
reuniting with Father during the investigation.

5. The Court also found that Mother had been testing positive
for marijuana and had issues with abusing her prescription pain
medications.

***

7. The first CHINS case ended with [Child] in Father’s custody
and Mother having supervised parenting time.

8. On December 13, 2015, officers were called to Father’s
residence in Tippecanoe County. Mother was present and
Lieutenant Jason Huber of the Tippecanoe County Sheriff’s
Department interviewed her. Mother was extremely emotional
and crying. Mother complained of severe head pain and Lt.
Huber observed injury to Mother’s neck. Mother requested an
ambulance. Mother told Lt. Huber that Father strangled her and
shut her neck in the car door.

9. Lt. Huber observed [Child] run from the side of the house to
Mother. [Child] was visibly upset.

10. Father was arrested and Mother was transported to the
hospital. [Child] stayed with a family friend.

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 11. DCS Investigator Kuhn interviewed Mother several days
later and Mother said that Father picked her up and threw her
out and slammed her head in the car door.

12. Mother obtained a protective order against Father on
December 21, 2015. Mother’s petition for protective order
indicates that Father attempted to strangle her and smashed her
head in the car door. Mother stated that [Child] witnessed
Father throw Mother out the door. Mother claimed that Father
has battered her since [Child] was born.

13. [Child] was removed from parents’ care on January 22, 2016
when DCS was informed that Mother and [Child] were living
with Father.

14. Mother later changed her story about what happened to DCS
investigator Kuhn. Mother also requested that the protective
order be dismissed. Mother testified that she wanted the
protective order dismissed because Father was no threat to her.

15. Mother had been obtaining prescription pills from her doctor
since the end of the first CHINS case. Mother admitted she takes
more pills than prescribed then gets pills from someone else after
she runs out of her prescription. Mother admitted that she has
been struggling with her pain pill addiction since she was thirteen
years old.

16. On the second day of the fact finding hearing, Mother
appeared in custody. Mother had been arrested in Tippecanoe
County for a misdemeanor offense and was also being held for a
White County case for Driving While Suspended. Mother is on
probation for battery of Father’s female friend.

17. [Child] is less than eighteen (18) years of age.

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 18. [Child’s] physical or mental condition is seriously impaired
or seriously endangered as a result of the inability, refusal or
neglect of his parents to supply him with necessary food,
clothing, shelter, medical care, education, or supervision. [Child]
has been repeatedly exposed to domestic violence and a pattern
of volatility in parents’ relationship. Additionally, Mother
continues to struggle with substance abuse addiction.

19. [Child] needs care or treatment that he is not receiving.

20. Parents are unlikely to provide the necessary care and
treatment for [Child] without the coercive intervention of the
court. Neither parent seems to understand the significant
negative impact that their ongoing volatile relationship has on
[Child].

21. Parents received services in the first CHINS case to address
domestic violence and substance abuse issues. Those same issues
are still present in this family and services continue to be needed.
Parents have not sought services on their own.

[10] Appellant’s Appendix Vol. II at 63-64. Father does not challenge the court’s

factual findings. Rather, Father argues that those findings do not support the

court’s conclusion that Child’s condition was seriously impaired or endangered

or that Child was deprived of any of the necessities required by I.C. § 31-34-1-1.

Specifically, Father asserts that exposure to domestic violence is not sufficient

to support a CHINS determination.

[11] In support of his argument, Father disagrees with prior holdings that exposure

to domestic violence can support a CHINS finding. See N.E., 919 N.E.2d at

106; K.B. v. Ind. Dep’t of Child Servs., 24 N.E.3d 997, 1003 (Ind. Ct. App. 2015).

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 Father asserts that the CHINS statute should be strictly construed against the

State and notes that the statute does not set forth domestic violence as a ground

upon which to base a CHINS determination. However, as noted by the court

in K.B., “the CHINS statute does not require the juvenile court and DCS to

wait until a child is physically or emotionally harmed to intervene; rather, a

child may be determined to be a CHINS if his or her physical or mental

condition is endangered.” 24 N.E.3d at 1003 (citing In re R.P., 949 N.E.2d 395,

401 (Ind. Ct. App. 2011)).

[12] Here, as in K.B., Child was of an age at which he was old enough to

comprehend the violence between Mother and Father. An officer who

responded to the December 2015 domestic disturbance call noted that Child

came running from the side of the house to Mother and that Child appeared

“panicked and fearful.” Transcript at 8. Child reported to a DCS worker that

the December 2015 incident was not the first time he had witnessed a physical

altercation between Mother and Father and that it “scares” him when Mother

and Father fight. Appellant’s Appendix Vol. II at 16. Moreover, it was reported

to DCS that Child was physically injured when he was “scratched on the neck”

during the December 2015 incident. Id. at 14.

[13] Further, DCS had closed a prior CHINS proceeding, which was based in part

on domestic violence in Child’s presence, only two months prior to the

December 2015 incidence between Mother and Father. Although Mother

initially sought a protective order in the weeks leading up to this case, she

ignored the protective order within a matter of weeks when she began living

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 with Father again. Our review of the record leads us to conclude that the

evidence supports the court’s findings, and the findings support the court’s

CHINS determination.

[14] Judgment affirmed.

[15] Riley, J. and Crone, J., concur.

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