In the Matter of: A v. & E v. (Children Alleged to be in Need of Services) and A.P. (Mother) A.P. (Mother) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION FILED
Apr 11 2018, 8:28 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark K. Leeman Curtis T. Hill, Jr.
Leeman Law Office Attorney General of Indiana
Logansport, Indiana
David E. Corey
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of: A.V. & E.V. April 11, 2018
(Children Alleged to be in Need Court of Appeals Case No.
of Services) and A.P. (Mother); 25A04-1710-JC-2366
A.P. (Mother), Appeal from the Fulton Circuit
Court
Appellant-Respondent,
The Honorable Arthur Christopher
v. Lee, Judge
Trial Court Cause No.
The Indiana Department of 25C01-1705-JC-93
25C01-1705-JC-94
Child Services,
Appellee-Petitioner

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 25A04-1710-JC-2366 | April 11, 2018 Page 1 of 16
[1] A.P. (“Mother”) appeals the adjudication of her children, A.V. and E.V.

(collectively, “Children”) as Children in Need of Services (“CHINS”). She

presents multiple issues for our review, which we consolidate and restate as:

1. Whether the Department of Child Services (“DCS”) presented
sufficient evidence to support the trial court’s findings regarding
E.V.’s burn injury; and

2. Whether the unchallenged findings supported the trial court’s
conclusion Children were CHINS.

[2] We affirm.

Facts and Procedural History
[3] Mother and J.V. (“Father”) 1 are the parents of A.V. and E.V., born June 8,

2011, and July 24, 2015, respectively. At the time of these events, Children

lived with Mother and her boyfriend, R.G. (“Boyfriend”). On May 5, 2017,

DCS received a report that E.V. had been admitted to the hospital with second

and third degree burns on his head and neck. Upon examination, doctors

discovered E.V. also had a torn frenulum. 2 DCS investigated and discovered

E.V. had sustained the burns on May 2, 2017, but Mother did not take him to

the hospital until three days later.

1
Father does not participate in this appeal.
2
The frenulum “is a piece of skin underneath the upper lip.” (Tr. Vol. II at 16.)

Court of Appeals of Indiana | Memorandum Decision 25A04-1710-JC-2366 | April 11, 2018 Page 2 of 16
[4] When asked how the burns occurred, Mother told the Family Case Manager

(“FCM”) that she worked most of the day on May 2, 2017, and did not see E.V.

after she arrived home at a late hour. On May 3, 2017, while Mother was on

her way to work, Boyfriend called her and said she “was going to be mad at

him.” (Tr. Vol. II at 148.) Boyfriend told Mother that during the previous

day’s bath, “[E.V.] was playing in the tub, reached for a toy, and he got

burned.” (Id.) Boyfriend told Mother “it was just a few red marks . . . it will go

away in a couple days.” (Id.)

[5] Mother called maternal grandmother (“Grandmother”), who lived nearby, and

asked her to check on E.V. Grandmother went to Mother’s house, where

Boyfriend and E.V. were watching television in the living room. Grandmother

noticed E.V.’s burns were more severe than Boyfriend reported. Grandmother

took E.V. to her house, gave him an antiseptic bath, let E.V. air dry, applied

Silvadene 3 cream to his burns, and wrapped them. Grandmother also gave

E.V. Tylenol.

[6] Mother left work shortly thereafter and told Boyfriend to leave her house.

Mother arrived at Grandmother’s house and observed E.V.’s burn looked like

“road rash.” (Id. at 153.) Mother indicated she did not take E.V. to the

emergency room because she respected the advice of Grandmother, who

worked as “qualified medication aid,” (id. at 185), and had training in CPR and

3
Dr. Thompson testified the difference between Silvadene and Eucerin lotion is, “Silvadene cream has an
antibiotic in it. Eucerin is just -- is Vaseline -- similar to Vaseline.” (Tr. Vol. II at 61.)

Court of Appeals of Indiana | Memorandum Decision 25A04-1710-JC-2366 | April 11, 2018 Page 3 of 16
 first aid. On May 4, 2017, Mother went to work and left Children in

Grandmother’s care. On Friday, May 5, 2017, Mother took E.V. to his local

pediatrician. The pediatrician referred E.V. to Woodlawn Hospital for

treatment.

[7] At Woodlawn, doctors treated E.V.’s burns and also observed his torn

frenulum. In addition, E.V. underwent a skeletal survey, which is “a series of

plain radiograph x-rays done on children less than two who you suspect have

been abused.” (Id. at 19.) The skeletal survey revealed a partially healed spiral

fracture of E.V.’s right humerus. Mother told doctors she did not know how

E.V.’s arm was injured or how he tore his frenulum.

[8] Based on the severity of E.V.’s burn injuries and the subsequently-discovered

additional injuries, E.V. was then transferred to Riley Hospital for Children in

Indianapolis for consultation with Pediatric Evaluation and Diagnostic Services

(“PEDS”), which provides “[DCS] with 24/7 access to a child abuse

pediatrician when they were evaluating potential cases of child

maltreatment[.]” (Id. at 12.) Dr. Shannon Thompson, who examined E.V.,

stated it was mandatory for “any child less than three who had a burn or a

fracture” to be referred to PEDS. (Id. at 13.)

[9] Dr. Thompson testified the nurse practitioner who initially examined E.V. at

Riley observed, “pink tinged skin on the forehead extending to the hairline, and

in [sic] the back of the neck extending into the hairline and down between the

shoulders.” (Id. at 23.) Based on those observations and her own examination,

Court of Appeals of Indiana | Memorandum Decision 25A04-1710-JC-2366 | April 11, 2018 Page 4 of 16
 Dr. Thompson determined E.V. had second degree burns, also known as

“partial thickness” and “deep partial thickness” burns. (Id. at 19.) She also

indicated there was a small area that was a third degree, or “full-thickness”

burn. (Id.) The burns covered approximately nine percent of E.V.’s body,

mostly in the head and neck area. Dr. Thompson also watched a video of A.V.

explaining how the contraption that caused E.V.’s burns worked and then

testified:

What [Mother] described was that she was told that E.V. was
being given a bath, and he was reaching for a toy and in doing so
his head got under the flow of water. We already had clarified --
took a video reenactment from A.V. about how that water was
essentially jimmied up.

So the water was not coming from the actual bath faucet because
apparently there was a child safety apparatus of some sort, but
the water coming from the sink was measured at 131 degrees
relatively quickly. There was a big plastic -- the top of a big
plastic (indiscernible) put underneath the faucet and kind of
angled at the bathtub. So our assumption was that if he was in
the bathtub, somehow he got his hand [sic] underneath that hot
water.

(Id. at 21-2.)

[10] On May 8, 2017, DCS filed petitions alleging Children were CHINS. On May

11, 2017, E.V. was released from Riley after treatment for his burns and the

scheduling of follow up appointments with Riley’s burn specialists and

orthopedic services. Children returned home with Mother. The trial court held

an initial hearing on the petitions on May 11, 2017. Shortly before the hearing,

Court of Appeals of Indiana | Memorandum Decision 25A04-1710-JC-2366 | April 11, 2018 Page 5 of 16
 DCS learned of an earlier incident involving E.V. wherein Mother took E.V. to

the emergency room on January 25, 2017, for a high fever. During that visit,

Mother sent Father a picture of E.V., who had bruises on his face. Mother told

Father the bruises happened when E.V. fell on Boyfriend’s exercise equipment.

The FCM testified she was concerned after learning of the additional injury. At

the initial hearing on May 11, 2017, Children were placed in Father’s care,

where they have remained throughout these proceedings.

[11] On June 8, 2017, the State charged Mother with Level 6 felony neglect of a

dependent based on the burn incident. The State issued a no-contact order

between Mother and E.V., which was later dismissed. On August 24, 2017, the

trial court held a fact-finding hearing. On August 24, 2017, the trial court

adjudicated Children as CHINS. On September 7, 2017, the trial court held a

dispositional hearing and entered a dispositional order on September 12, 2017,

ordering Mother and Father to participate in services.

Discussion and Decision
[12] A CHINS proceeding is civil in nature, so DCS 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). Indiana Code section 31-34-1-1 states:

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

Court of Appeals of Indiana | Memorandum Decision 25A04-1710-JC-2366 | April 11, 2018 Page 6 of 16
 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.

A CHINS adjudication “focuses on the condition of the child,” and not the

culpability of the parent. In re N.E., 919 N.E.2d at 105. The purpose of finding

a child to be a CHINS is to provide proper services for the benefit of the child,

not to punish the parent. Id. at 106.

[13] When a juvenile court enters findings of fact and conclusions of law in a

CHINS decision, we apply a two-tiered review. Parmeter v. Cass Cty. DCS, 878

N.E.2d 444, 450 (Ind. Ct. App. 2007), reh’g denied. We first consider whether

the evidence supports the findings and then whether the findings support the

judgment. Id. We may not set aside the findings or judgment unless they are

clearly erroneous. Id. Findings are clearly erroneous when the record contains

no facts to support them either directly or by inference, and a judgment is

clearly erroneous if it relies on an incorrect legal standard. Id. We give due

regard to the juvenile court’s ability to assess witness credibility and we do not

reweigh the evidence; we instead consider the evidence most favorable to the

judgment with all reasonable inferences drawn in favor of the judgment. Id.

We defer substantially to findings of fact, but not to conclusions of law. Id.

Court of Appeals of Indiana | Memorandum Decision 25A04-1710-JC-2366 | April 11, 2018 Page 7 of 16
 Challenged Findings

[14] Mother challenges the trial court’s finding that states in relevant part:

[E.V.] received significant burns and did not receive treatment or
evaluation from a medical [sic] for a period of three days after the
accident. . . .

[E.V.’s] health was placed in jeopardy based on the Mother’s
failure to seek professional medical treatment in a timely fashion.
The Court is concerned the Mother does not appreciate this
error.

(App. Vol. II at 171.)

[15] Mother argues the first half of that finding is not supported by the evidence

because Grandmother treated E.V.’s burns the day after they occurred.

Grandmother testified she “was a licensed healthcare provider, certified in first

aid and CPR, and employed as a caregiver to children with serious and chronic

diseases and developmental issues.” (Br. of Appellant at 17.) Grandmother

testified she gave E.V. a bath with “antiseptic soap” (Tr. Vol. II at 198), applied

“Silvadene creme after [E.V.] air dried,” (id.), wrapped the burns, and gave

E.V. Tylenol.

[16] Mother also contends, as to the second half of that finding, that her delay in

seeking treatment from a doctor or the emergency room did not support finding

she placed E.V. in jeopardy, and there is “no evidence in the record even

suggesting that E.V.’s recovery would have been improved had he been taken to

the emergency room, much less evidence suggesting that E.V. was actually

Court of Appeals of Indiana | Memorandum Decision 25A04-1710-JC-2366 | April 11, 2018 Page 8 of 16
 harmed by Mother’s decision.” (Br. of Appellant at 17.) Finally, Mother

asserts, “Mother did not make any error so there was no error for her to

‘appreciate.’” (Id. at 17.)

[17] DCS presented the testimony of Dr. Thompson, who treated E.V. at Riley

Hospital. Dr. Thompson testified the severity of E.V.’s burns required

“immediate medical care for pain control, fluid, request to (indiscernible),

monitoring of infection and treatment of the actual injury to promote healing.”

(Tr. Vol. II at 59.) Additionally, while Dr. Thompson agreed Grandmother’s

treatment of the burn at home was “helpful[,]” (id. at 62), she also stated she

believed medical neglect occurred based on “[f]ailing to seek medical care that I

think a reasonable caregiver would have thought was appropriate of [sic] his

significant burn.” (Id. at 49.) DCS presented evidence to support the trial

court’s finding regarding Mother’s actions regarding the care of E.V.’s burns.

Mother’s arguments are invitations for us to reweigh evidence, which we

cannot do. See Parmeter, 878 N.E.2d at 450 (appellate court cannot reweigh

evidence or judge the credibility of witnesses).

Unchallenged Findings and Conclusions
[18] Mother does not challenge any other of the trial court’s findings, and thus they

stand as proven. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992)

(“Because Madlem does not challenge the findings of the trial court, they must

be accepted as correct.”). Instead, she argues those findings do not support the

trial court’s conclusion Children are CHINS. To prove Children are CHINS,

Court of Appeals of Indiana | Memorandum Decision 25A04-1710-JC-2366 | April 11, 2018 Page 9 of 16
 DCS had to present evidence Children’s physical or mental conditions were

seriously endangered as a result of Mother’s inability, refusal, or neglect in

providing medical care and that Children need care they are not receiving and

are unlikely to receive without the coercive intervention of the court. See Ind.

Code § 31-34-1-1. It is possible for a child to not be adjudicated a CHINS, even

if that child’s well-being is seriously endangered as result of a parent’s inability,

refusal, or neglect, if DCS failed to present evidence that coercive intervention

of the court is needed. In re S.D., 2 N.E.3d 1283, 1288 (Ind. 2014), reh’g denied.

Whether E.V. is a CHINS

[19] The trial court adjudicated E.V. a CHINS, finding and concluding:

[E.V.] received significant burns and did not receive treatment or
evaluation from a medical [sic] for a period of three days after the
accident. In addition, it was subsequently discovered the
children [sic] had an unevaluated spiral fracture and an
unevaluated torn frenulum.

In making this CHINS finding, the Court relies heavily on the
testimony of Dr. Shannon Thompson.

[E.V.’s] health was placed in jeopardy based on the Mother’s
failure to seek professional medical treatment in a timely fashion.
The Court is concerned the Mother does not appreciate this
error. As such, services with coercive court oversight are
necessary to ensure the safety of the children.

Court of Appeals of Indiana | Memorandum Decision 25A04-1710-JC-2366 | April 11, 2018 Page 10 of 16
 (App. Vol. II at 171.) Mother argues the trial court’s conclusion is erroneous

because it is based “solely on conditions that no longer exist.” (Appellant’s Br.

at 18.)

[20] “[A]n adjudication that a child is dependent and neglected may not be based

solely on conditions which existed in the distant past, but exist no longer.” In re

C.S., 863 N.E.2d 413, 418 (Ind. Ct. App. 2007) (quoting Matter of D.T., 547

N.E.2d 278, 284 (Ind. Ct. App. 1989), reh’g denied, trans. denied), trans. denied,

abrogated on unrelated grounds by In re N.E., 919 N.E.2d 102, 106 (Ind. 2010).

Mother argues the trial court erred when it adjudicated E.V. a CHINS because

she had removed Boyfriend from her home, there was no evidence any of

E.V.’s injuries occurred in her presence, and she had set the bathtub

temperature on low so E.V. would not be burned again.

[21] DCS does not dispute that Mother required Boyfriend to leave her house and he

has not returned. However, DCS presented evidence Mother did not know

how E.V. sustained the spiral fracture to his arm or how he tore his frenulum.

Dr. Thompson testified she believed E.V. was a victim of medical neglect based

on Mother’s delay in seeking treatment for E.V.’s burns, and she also testified

she believed there was evidence E.V. had been the victim of physical abuse

based on the fact he “presented with a healing fracture of the arm with no

story.” (Tr. Vol. II at 49.) Finally, Mother did not present evidence the

rerouting of hot water from the sink to the bathtub that resulted in E.V.’s burns

had been fixed. Mother’s arguments are invitations for us to reweigh evidence,

which we cannot do. See Parmeter, 878 N.E.2d at 450 (appellate court cannot

Court of Appeals of Indiana | Memorandum Decision 25A04-1710-JC-2366 | April 11, 2018 Page 11 of 16
 reweigh evidence or judge the credibility of witnesses). We conclude the trial

court’s conclusion that E.V. was seriously endangered because of Mother’s

neglect was supported by the findings. See In re C.B., 865 N.E.2d 1068, 1073

(Ind. Ct. App. 2007) (findings supported conclusion child’s well-being was

endangered by mother’s delay in seeking medical treatment for multiple injuries

attributable to abuse that child sustained while in mother’s care and custody),

trans. denied.

[22] Mother also argues “there is no evidence that Mother was not likely to care for

his [sic] children without coercive intervention of the Court.” (Br. of Appellant

at 19.) She contends “[t]his case comes down to a doctor in Indianapolis

thinking Mother should have gone to the emergency room rather than schedule

an appointment with the child’s pediatrician. The doctor’s decision to second-

guess Mother’s care does not establish a CHINS.” (Id.)

[23] “Not every endangered child is a child in need of services, permitting the State’s

parens patriae intrusion into the ordinarily private sphere of the family.” In re

S.D., 2 N.E.3d at 1287. Here, FCM Rainey testified Mother took E.V. “to the

doctor’s appointments that were made at Riley and any further appointments

that were made through Woodlawn Hospital or any of their providers after

being released from the hospital[.]” (Tr. Vol. II at 107.) However, FCM

Samuel testified Mother had not completed the parenting assessment used to

determine if it was safe for Children to return to her care. Additionally, he

testified:

Court of Appeals of Indiana | Memorandum Decision 25A04-1710-JC-2366 | April 11, 2018 Page 12 of 16
 Besides participating in the visitation and starting the parenting
assessments, Mom’s attitude with it is still denial of, you know,
wrongdoing or that this was an incident of abuse or neglect, not
wanting to take accountability for those things, and if that issue is
not being recognized then it’s difficult to address that and say
there’s not going to be safety problems when they go back home.

(Id. at 132.) Mother’s argument is an invitation for us to reweigh the evidence,

which we cannot do. See Parmeter, 878 N.E.2d at 450 (appellate court cannot

reweigh evidence or judge the credibility of witnesses). We conclude the trial

court’s findings support its conclusion that coercive intervention of the court is

necessary to ensure E.V. receives necessary care and treatment. Contra Matter of

E.K., 83 N.E.3d 1256, 1262 (Ind. Ct. App. 2017) (reversing CHINS

adjudication because DCS did not prove coercive intervention of the court was

necessary when parents had made great strides in addressing the issues that

resulted in CHINS investigation, retained custody of their children, and were

actively participating in treatment), trans. denied.

Whether A.V. is a CHINS

[24] Mother asserts six-year-old A.V. is not a CHINS because

A.V. never received an injury and there was no evidence she was
even left alone with [Boyfriend]. Moreover, A.V.’s older age also
makes it less likely that her health was ever placed in substantial
danger in this case. Older kids can verbalize pain and concerns
about their health that a younger child cannot.

Court of Appeals of Indiana | Memorandum Decision 25A04-1710-JC-2366 | April 11, 2018 Page 13 of 16
 (Br. of Appellant at 20.) While the trial court did not make findings 4 regarding

any incidents involving A.V., “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.” K.B. v. Indiana Dept. of Child

Services, 24 N.E.3d 997, 1003 (Ind. Ct. App. 2015).

[25] DCS presented evidence A.V. told FCM Rainey that she was afraid of

Boyfriend and he sat on her one time as punishment, but A.V. had not told

Mother. Regarding A.V., Dr. Thompson testified:

[DCS]: Despite the absence of injuries beyond the scratch to
the back of the leg, would you have concerns for [A.V.’s] safety
in the same home where E.V. sustained these injuries?

[Thompson]:Yes.

[DCS]: Why is that?

[Thompson]:Because it is very clear in literature when one child
is a victim of maltreatment, the other child -- children are at high-
risk. In fact, in this particular case, [FCM] Rainey provided me
with information of when she spoke with A.V. who expressed --
had a fear of her caretaker in that home and an incident in which
she was sat upon.

4
The trial court’s order was minimally sufficient at best. It did not include many findings specific to this case
and was rife with grammatical and typographical errors. These inadequacies hindered our review.

Court of Appeals of Indiana | Memorandum Decision 25A04-1710-JC-2366 | April 11, 2018 Page 14 of 16
 So clearly there’s maltreatment. There was clearly maltreatment
occurring in the home that she was witnessing. So that, plus the
fact that E.V. was -- had medical neglect as well as physical
abuse, in my opinion, and yeah, she’s at risk in the same
environment.

[DCS]: Have any studies been done to show whether there’s
a higher probability of injury to siblings in the same home as a
victim of abuse or neglect?

[Thompson]:Yes, there’s a number of them. I don’t happen to
know them off the top of my head, but there’s at least several
studies on children who had injury, a home where there’s
physical abuse, as well as other siblings having injury or being
found to have injury when they’re evaluated as an index -- as a
sibling of an index child who has been abused in the home.

(Tr. Vol. II at 50-1.)

[26] Regarding whether the court’s coercive intervention was necessary, we note the

same reasons intervention was necessary for E.V. apply here: Mother did not

complete the required parenting assessments to ensure Children were safe in her

care, and Mother’s general attitude of denial of wrongdoing. Mother’s

arguments are invitations for us to reweigh the evidence, which we cannot do.

See Parmeter, 878 N.E.2d at 450 (appellate court cannot reweigh evidence or

judge the credibility of witnesses). Based thereon, we conclude DCS presented

evidence to support the trial court’s adjudication of A.V. as a CHINS. Contra

Matter of E.K., 83 N.E.3d at 1262 (reversing CHINS adjudication because DCS

did not prove coercive intervention of the court was necessary when parents

had made great strides in addressing the issues that resulted in CHINS
Court of Appeals of Indiana | Memorandum Decision 25A04-1710-JC-2366 | April 11, 2018 Page 15 of 16
 investigation, retained custody of their children, and were actively participating

in treatment).

Conclusion
[27] DCS presented sufficient evidence to support the trial court’s findings regarding

Children. Those findings supported the trial court’s conclusions Children were

CHINS. We accordingly affirm.

[28] Affirmed.

Riley, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 25A04-1710-JC-2366 | April 11, 2018 Page 16 of 16