In the Matter of R.F. (a Child in Need of Services) Z.F. (Father) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 29 2018, 6:52 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Karen E. Wrenbeck Curtis T. Hill, Jr.
Monroe County Public Defender’s Office Attorney General of Indiana
Bloomington, Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of R.F. (a Child in November 29, 2018
Need of Services) Court of Appeals Case No.
18A-JC-1394
Appeal from the Monroe Circuit
Z.F. (Father), Court
Appellant-Respondent, The Honorable Stephen R. Galvin,
Judge
v.
Trial Court Cause No.
53C07-1710-JC-822
The Indiana Department of
Child Services,
Appellee-Petitioner.

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-1394 | November 29, 2018 Page 1 of 16
 Case Summary
[1] Following fact-finding and dispositional hearings and orders, Z.F. (“Father”)

appeals1 the trial court’s order adjudicating his child, R.F. (“Child”), to be a

Child in Need of Services (“CHINS”). He raises one issue on appeal: whether

there was sufficient evidence to support the determination that Child is a

CHINS.

[2] We affirm.

Facts and Procedural History
[3] Father and Mother are the parents of Child, who was born on April 20, 2016.

From a previous marriage to R.B., Mother also has another child, O.B., born

March 8, 2013. Mother and R.B. had a history of committing domestic

violence in front of O.B. and entered into an Informal Adjustment Agreement

(“IAA”) with the Indiana Department of Child Services (“IDCS”) to address

domestic violence issues in 2013. However, the IAA was ultimately closed

after Mother and R.B. consistently failed to participate in services.

[4] After Child was born, she, Mother, Father, and O.B. began living together. In

January 2017, IDCS received, assessed, and substantiated a report against

Mother and Father for engaging in domestic violence in the presence of Child

1
J.S. (“Mother”) does not participate in this appeal.

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 and O.B. In March of 2017, Father and Mother entered into an IAA under

which Mother was to receive services and Father was ordered to “immediately

report to the Family Case Manager any attempts by [Mother] to have access to

or communicate with [Father].”2 Ex. 4 at 90. Child resided with Father, and

Father obtained a protective order that forbade Mother to come into contact

with Father. Father obtained sole custody of Child in July 2017.

[5] Despite the protective order, in the summer of 2017, Father allowed Mother to

move back into the home with Father and Child. On October 24, 2017, Mother

and Father again engaged in domestic violence in the presence of Child. On

October 25, 2017, IDCS filed a petition3 alleging Child and O.B. were CHINS.

Specifically, the CHINS petition asserted that Mother and Father engaged in

domestic violence in the presence of Child and O.B.,4 thus placing the children

in danger, and that Father “was observed by DCS to be impaired as he was

irate, violent, and smelled of alcohol[, and h]e made homicidal and suicidal

threats in the presence of [Child].” Verified Petition Alleging Children to be

Children in Need of Services, Cause No. 53C07-1710-JC-822.

2
Thus, Father is incorrect when he asserts that the IAA did not order him “to do anything.” Appellant’s Br.
at 15.
3
Neither party to this proceeding provided in the record a copy of the CHINS petition. However, we were
able to access that document through the court’s electronic case management system, and we take judicial
notice of that document pursuant to Indiana Rule of Evidence 201(a). See, e.g., Horton v. State, 51 N.E.3d
1154, 1161-62 (Ind. 2016).
4
The CHINS petition related to both Child and O.B. However, the CHINS finding as to O.B. is not at issue
in this case.

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[6] The court conducted a fact-finding hearing on February 7, February 21, and

March 19, 2018, at which IDCS introduced as Exhibit 8 the mental health and

substance use evaluation of Father conducted by Cornerstone in January 2018.

In that evaluation, Father denied ever engaging in domestic violence and said

Mother was the only one who engaged in such violence. Father also stated

“that he has never been violent in his entire life,” and he denied any history of

intending to hurt others. Exhibit 8 at 125-27.

[7] On April 17, 2018, the trial court issued Findings of Fact and Conclusions of

Law which stated in relevant part:

Findings of Fact

***

5. In June, 2016, [Child] was two months old. [Mother] and
[Father] engaged in an altercation when [Father] came home
intoxicated. [Mother] was holding [Child]. [Father] grabbed
[Mother] so violently that her head bumped into [Child]’s.
[Mother] almost dropped [Child]. Fortunately, the child was
unhurt. [Mother] did not report this incident to law enforcement.

6. In October or November, 2016, [Mother] became upset
with [Father]. [Father] had stolen [Mother]’s money to buy
drugs. [Father] attacked [Mother]. [Mother] smashed [Father]’s
guitar on the concrete.

7. On January 25, 2017, [Mother] threatened [Father] with a
knife, punched him, and tried to strangle him. [Father] had a
black eye. [O.B.] witnessed this altercation.

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 8. [Mother] was charged with Domestic Battery in the
Presence of a Child less than l6 years old. The case is still
pending. [Mother] admits that [O.B.] witnessed an altercation
between herself and [Father]. However, she characterizes her
actions as self-defense. She admits that there is a history of
physical violence between the two. She believes [Father] is an
alcoholic.

9. [Father] obtained an Order of Protection against [Mother]
on February 14, 2017. The Order prohibits [Mother] from
having contact with [Father].

10. On April 26, 2017, [Mother] violated the Protective Order
by going to [Father]’s home in an attempt to take [Child].
[Father] called the police. [Mother] was arrested for Invasion of
Privacy.

11. As a result of the altercation in the presence of [O.B.],
[Mother] and [Father] entered into an Informal Adjustment
Agreement with the DCS. The Informal Adjustment was
approved by the Court on May 23, 2017.

12. On July l3, 2017, [Father] was granted sole legal and
physical custody of [Child]. The Court noted that [Father] was
providing [Child] with a safe and stable environment. [Mother]’s
inability to control her anger was characterized as “troubling and
not conducive to appropriate parenting.”

13. Despite the Protective Order and Custody Order, [Father]
allowed [Mother] to return to his home. He allowed her to live
in the home off and on prior to October 24, 2017. Predictably,
another altercation occurred on October 24, 2017. During the
altercation, [Mother] grabbed [Father] by the neck and scratched
him. He was bleeding from the elbow when Sheriff’s Deputies
arrived. When discussing the incident with DCS caseworker

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 Dennis Martin, [Father] began yelling. He threatened suicide.
He also threatened a Family Case Manager. [Child] was in the
room at the time.

14. [Father] became very aggressive. He was screaming and
incoherent. [Father] was detained by the Deputies and taken to
Bloomington Hospital. He was admitted on a 72 hour hold for
psychiatric evaluation. He was very belligerent to the ambulance
staff. He smelled of alcohol.

15. [Mother] denied staying with [Father]. She stated that
[Father] was drunk and assaulted her. She stated that [Father]
dragged her into the home where [Child] was present. [Child]
was hitting [Father] in an attempt to get him to stop. During the
altercation, [Mother] inadvertently kicked [Child] in the head.
[Mother] had damage to her lip. [O.B.] was in the car when
[Father] dragged her into the home. [Mother] stated that [O.B.]’s
face was cut when [Father] broke a window in her vehicle.
[Mother] had injuries to her arm and face.

16. The investigating officer made no arrests because he could
not determine who was at fault. He did note that [O.B.] was
visibly distraught and had glass in his hair. Based on his
observations, the officer felt the children were in danger because
of the actions of the parents.

l7. [Father] suffers from clinical depression. He attempted
suicide in May, 2016.

l8. [Father] completed a psychological evaluation in January,
2018, at Centerstone, the local mental health center. He was
diagnosed with Major Depressive Disorder and Alcohol Use
Disorder, Moderate. Intensive outpatient treatment (IOP) and
individual therapy were recommended. A psychiatric assessment
might be appropriate once he is engaged in individual therapy.

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 The evaluator noted that he might be a good candidate for the
SoberLink program.

***

21. [Father] recently pled guilty to Operating while
Intoxicated, a Level 6 Felony.

22. [Mother] participated in individual therapy in 2017 and
2018. The therapy did not prevent her from engaging in acts of
domestic violence in the presence of her children.

Conclusions of Law

1. Mother has engaged in a pattern of domestic violence in
the presence of her children. Treatment and intervention by the
DCS has not been effective. This pattern includes the following:

***

i. Although [Father] knew that he and [Mother] had a
history of domestic violence in the presence of the
children, he allowed [Mother] to move back into his
home. Predictably, on October 24, 2017, another
incident of domestic violence occurred. During the
altercation, [Mother] grabbed [Father] by the neck
and scratched him. He was bleeding from the
elbow. [Mother] had injuries to her arm and face.
[Mother] stated that [Father] dragged her into his
home while Child was present. Child was hitting
[Father] in an attempt to get him to stop. [O.B.]
was covered in glass when the car window was
smashed during the altercation. [O.B.] was visibly
distraught and had glass in his hair. The officers at

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 the scene felt the children were in danger because of
the parents’ actions.

***

3. [Child] is only two years old. When two months old, her
mother bumped her head and almost dropped her during an
altercation with [Father]. In October, [Child] was hitting
[Father] in an attempt to stop the altercation between [Father]
and [Mother]. [Mother] accidentally kicked [Child] in the head
during the altercation.

4. These children are being raised in an atmosphere where
domestic violence is a regular occurrence. It is only a matter of
time before they are injured. During the incidents of domestic
violence, the parents utterly fail to offer appropriate care and
supervision for their children. They are intent on engaging in
their fights and are oblivious to the impact on the children.
Clearly, the physical and mental condition of the children is
seriously impaired or seriously endangered as a result of the
refusal and neglect of the parents to supply the children with
necessary supervision.

5. [Mother] has engaged in ongoing individual therapy over
the past year. This therapy has been wholly unproductive. She
continues to engage in acts of domestic violence. She takes no
responsibility for her actions. She has signed two Informal
Adjustment Agreements with DCS. She failed to comply with
the first Informal Adjustment Agreement and failed to benefit
from services offered during the second.

6. [Father] and [Mother] have a history of domestic violence
in the presence of the children. Despite that history, [Father]
allowed [Mother] to return to his home. This precipitated a new
incident of domestic violence in the presence of the children.

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 [Father] cannot be trusted to enforce the terms of the protective
order or the custody order. He cannot ensure that the children
will not be exposed to more domestic violence between himself
and [Mother].

***

8. In light of the parents’ lengthy histories of domestic
violence in front of the children, and their failure to benefit from
services offered by DCS, it is unlikely that they will voluntarily
participate in services designed to prevent future domestic
violence without the coercive intervention of the Court.

9. The Department of Child Services has proven, by a
preponderance of the evidence, that [O.B.] and [Child] are
Children in Need of Services.

App. at 8-13.

[8] On May 3, 2018, IDCS filed a Pre-Dispositional Report and addendum

recommending services for both parents, including Father’s participation in a

domestic violence prevention program. The trial court conducted a

dispositional hearing on May 14, 2018, at which Father testified that IDCS had

requested that he engage in domestic violence prevention services, but that his

therapist believed he could address domestic violence through individual

therapy alone. Family case manager (“FCM”) Lindsey McDonald testified that

IDCS recommended domestic battery services for both parents, but that IDCS

intended to work with a local domestic violence service provider and Father’s

therapist to “get a therapeutic opinion” regarding which domestic violence

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 services were appropriate for Father. FCM McDonald stated that IDCS would

abide by that therapeutic opinion. Id.

[9] On May 14, 2018, the trial court issued a Dispositional and Review Order in

which it found that Child needs “a safe and stable home, free from domestic

violence and neglect,” and ordered Child to remain in placement with the

paternal grandparents pending further proceedings. App. at 14. This appeal

ensued.

Discussion and Decision
Standard of Review
[10] The juvenile court adjudicated Child to be a CHINS pursuant to Indiana Code

Section 31-34-1-1, which provides:

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

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 (B) is unlikely to be provided or accepted without the coercive
intervention of the court.

[11] In reviewing a CHINS determination, we do not reweigh evidence or assess

witness credibility but consider only the evidence in favor of the juvenile court’s

judgment, along with any reasonable inferences arising therefrom. J.M. v. Ind.

Dep’t of Child Serv. (In re N.C.), 72 N.E.3d 519, 523 (Ind. Ct. App. 2017). When

the trial court enters findings of fact and conclusions of law sua sponte, we apply

a two-tiered standard of review to the issues covered by the findings: we

consider, first, whether the evidence supports the findings and, second, whether

the findings support the judgment. Ind. Trial Rule 52(A); In re S.D., 2 N.E.3d

1283, 1287 (Ind. 2014).

[12] However, “we review the remaining issues under the general judgment

standard, under which a judgment will be affirmed if it can be sustained on any

legal theory supported by the evidence.” In re S.D., 2 N.E.3d at 1287.

(quotation marks and citation omitted). Under the general judgment standard

of review, the reviewing court “may look both to other findings and beyond the

findings to the evidence of record to determine if the result is against the facts

and circumstances before the court.” C.B. v. B.W., 985 N.E.2d 340, 344 (Ind.

Ct. App. 2013), trans. denied. In deference to the trial court’s proximity to the

issues, an appellate court will “disturb the judgment only where there is no

evidence supporting the findings or the findings fail to support the judgment.”

In re Guardianship of B.H., 770 N.E.2d 283, 287-288 (Ind. 2002) (quotations and

citations omitted).

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 Sufficiency of Evidence that Child is a CHINS
[13] A CHINS adjudication under Indiana Code Section 31-34-1-1 requires 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. That final element “guards against unwarranted State

interference in family life, reserving that intrusion for families where parents

lack the ability to provide for their children, not merely where they encounter

difficulty in meeting a child’s needs.” Id. (quotation marks and citation

omitted).

[14] Courts should consider the family’s condition not only at the time the CHINS

case was filed, but also when the case is heard at the fact-finding hearing. Gr.J.

v. Ind. Dep’t of Child Serv. (In re D.J.), 68 N.E.3d 574, 580 (Ind. 2017); see also,

E.B. v. Ind. Dep’t of Child Serv. (In re Des.B.), 2 N.E.3d 828, 836 (Ind. Ct. App.

2014) (quotation marks and citation omitted) (“A CHINS adjudication may not

be based solely on conditions that no longer exist, but the court should consider

the family’s situation at the time the case is heard by the court.”). IDCS has the

burden of proving by a preponderance of the evidence that the child is a

CHINS. See, e.g., J.J. v. Ind. Dep’t of Child Serv. (In re K.S.), 78 N.E.3d 740, 744

(Ind. Ct. App. 2017). IDCS may not simply rely upon allegations; rather, it

must gather the facts and the evidence to support its CHINS petition. D.B. v.

Ind. Dep’t of Child Serv. (In re D.B.), 43 N.E.3d 599, 606 (Ind. Ct. App. 2015).

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[15] Here, the trial court based its CHINS determination on the parents’ repeated

episodes of domestic violence in the presence of Child.5 And there was

abundant evidence in the record that Father’s and Mother’s violent fights in the

presence of Child endangered her both physically and emotionally. When

Child was only two months old, Father grabbed Mother so hard that her head

struck Child and she almost dropped Child. And right before the CHINS

petition was filed, the parents’ violent fighting caused Mother to accidentally

kick Child and Child to hit Father in an attempt to make him stop fighting.

Moreover, there was evidence that neither Father nor Mother had any

compunction about physically assaulting each other in the presence of Child’s

half-sibling, O.B. O.B. witnessed repeated instances of domestic violence,

causing him to be afraid. In the most recent instance, a car window was

shattered due to the parents’ physical altercation, and it caused glass to fall

down onto O.B. while he was sitting in the car. All of that evidence supports

the trial court’s findings that Father and Mother engaged in repeated instances

of domestic violence in the presence of Child and her half-sibling and, in doing

so, seriously endangered Child.6

5
Although the CHINS petition referenced Father’s alcohol use and mental health in addition to the
domestic violence, the trial court only based its CHINS decision on the domestic violence in the presence of
Child. App. at 12-13, Conclusions 4-8. Therefore, we do not address issues of substance use or mental
health.
6
Furthermore, we note that the “CHINS statute does not require the juvenile court and the DCS to wait
until a child is physically or emotionally harmed to intervene.” M.W.B. v. Ind. Dep’t of Child Serv. (In re K.B.),
24 N.E.3d 997, 1003-04 (Ind. Ct. App. 2015). Rather, IDCS must only show that the parents’ actions
seriously endanger the child. I.C. § 31-34-1-1.

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[16] And those findings support the trial court’s conclusion that “[d]uring the

incidents of domestic violence, the parents utterly fail to offer appropriate care

and supervision of their children.” App. at 12. Instead, the parents’ repeated

acts of violence against each other put the children’s physical and emotional

safety at great risk. The findings also support the trial court’s conclusion that

the domestic violence in the presence of the children was unlikely to end

without the coercive intervention of the court. Father knew that he and Mother

had a history of committing violence against each other in the presence of

Child, yet he allowed Mother to return to his home even when a protective

order was in place, leading to more violence in Child’s presence. The trial court

did not err in concluding that “[Father] cannot be trusted to enforce the terms of

the protective order or the custody order[,]” nor can he “ensure that the

children will not be exposed to more domestic violence between himself and

[Mother].” Id. at 13.

[17] Father contends that IDCS failed to establish that the condition of domestic

violence had not been remedied at the time of the fact-finding hearing. We

disagree. Even “a single incident of domestic violence in a child’s presence

may support a CHINS finding, and it need not necessarily be repetitive.” M.P.

v. Ind. Dep’t of Child Serv. (Matter of D.P.), 72 N.E.3d 976, 984 (Ind. Ct. App.

2017). But here there was evidence of a pattern of domestic violence in the

presence of Child and her half-sibling. Such a pattern may support a CHINS

finding, even if there have been no further reports of domestic violence at the

time of the fact-finding hearing. M.W.B. v. Ind. Dep’t of Child Serv. (In re K.B.),

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 24 N.E.3d 997, 1003-04 (Ind. Ct. App. 2015) (noting that, although there were

no further reported cases of violence when the trial court issued its CHINS

finding, that “by no means proves that … the domestic violence problems had

been solved”). Here, while Father does have a protective order in place, the

evidence established that he has shown a willingness in the past to ignore the

requirements of such an order and to ignore the Informal Adjustment

requirement that he immediately inform IDCS if Mother attempted to contact

him. Father has also exhibited an unwillingness to take responsibility for his

part in the domestic violence, insisting at the Cornerstone evaluation that he

had “never been violent in his entire life.” Ex. 8 at 125. Further, at the time of

the fact-finding hearing, Father had not yet attended domestic violence

prevention services. Thus, it is reasonable to infer that the fact that no further

domestic violence had taken place in front of the children at the time of the

CHINS hearing was only due to the fact that the children had been removed

from Mother’s and Father’s care.

Conclusion
[18] The evidence supported the finding that Child was a CHINS. Specifically, the

evidence of the parents’ pattern of engaging in domestic violence in the

presence of Child (and her half-sibling), leading to physical and/or emotional

injury to Child, and Father’s unwillingness to enforce a protective order against

Mother, supported the conclusions that Father’s actions endangered Child and

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 that her need for supervision and care were not being met and were unlikely to

be met in the future without the coercive intervention of the court.

[19] Affirmed.

Mathias, J., and Bradford, J., concur.

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