In the Matter of: R.G. (Child) and M.M. (Mother) and M.G. (Father) v. Indiana Department of Child Services

FILED
Aug 06 2019, 8:34 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Heather M. Schuh-Ogle Curtis T. Hill, Jr.
Columbus, Indiana Attorney General of Indiana

Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of: August 6, 2019

R.G. (Child) Court of Appeals Case No.
19A-JC-598
and
Appeal from the Bartholomew
M.M. (Mother) and M.G. Circuit Court
(Father), The Honorable Kelly S. Benjamin,
Appellants-Respondents, Judge
The Honorable Heather M. Mollo,
v. Magistrate
Trial Court Cause No.
Indiana Department of Child 03C01-1809-JC-5312
Services,
Appellee-Petitioner

Altice, Judge.

Case Summary

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[1] M.M. (Mother) and M.G. (Father) (collectively, Parents) appeal the trial court’s

order adjudicating R.G. (Child) to be a Child in Need of Services (CHINS).

Parents present three issues for our review, which we restate as:

1. Did the trial court err in permitting a witness for the
Department of Child Services (DCS) to testify telephonically at
the fact-finding hearing?

2. Is the evidence sufficient to support the court’s order
adjudicating Child a CHINS?

3. Did the trial court abuse its discretion in ordering Parents to
participate in services?

[2] We affirm.

Facts & Procedural History

[3] Child was born to Parents on September 15, 2018. Mother has three other

children, S.M. (born June 30, 2011), L.M. (born September 27, 2012), and

A.M. (born December 19, 2015), for whom she is the custodial parent. Father

has two other children, M.M.G. (born April 15, 2008) and W.G. (born January

14, 2012), for whom he is the custodial parent.

[4] DCS first became involved with Parents on August 13, 2018 (prior to Child’s

birth), upon receiving a report alleging “inappropriate discipline, home

conditions, lack of food, no running water or working utilities, possible

domestic violence in the home, as well as head lice for the children.” Transcript

Vol. 2 at 131. Edisa Mrkaljevic, a DCS assessment worker, interviewed L.M.

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 and S.M. at their elementary school and then attempted to contact Parents by

visiting the home. A relative was at the home but did not allow Mrkaljevic to

enter.

[5] Mrkaljevic eventually contacted Mother and arranged to meet her and the

children at a nearby park. Mrkaljevic spoke with Mother about the allegations.

With regard to discipline, Mother indicated that she used “time outs, taking

things away, spanking and occasionally using a belt.” Id. Mother also

acknowledged ongoing issues with head lice. As to the conditions of the house,

Mother told Mrkaljevic that she could not give her permission to see the inside

of the home because she did not own the home, but she assured Mrkaljevic that

they had working utilities, appropriate sleeping arrangements, and sufficient

food. Mrkaljevic also contacted Father, who gave her permission to speak with

M.M.G. and W.G. but indicated that his mother owned the home and would

not allow access.

[6] Mrkaljevic went back to the house on August 30, 2018, and Mother allowed her

access to a camper that the family sometimes used. Mrkaljevic noted that the

camper did not have appropriate bedding, there were no working utilities, and

she was concerned about the amount of clutter. When Mrkaljevic walked in

the camper, she almost fell through a hole in the floor. Having seen the

conditions of the camper, DCS filed a motion to compel to gain access into the

home. The court held a hearing on the motion on September 17, 2018, two

days after Child was born. At the conclusion of the hearing, the court ordered

Parents and Father’s mother to permit DCS access to the inside of the home.

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[7] When Mrkaljevic visited the home on September 19, 2018, she noted that the

home had working utilities and sufficient food. She also observed laundry

stacked up in the living room, missing ceiling tiles, ceiling tiles that had water

damage and were caving in, walls in one bedroom appeared to have mold on

them, puppy pads in the kitchen were soaked with urine, dirty floors, Parents’

bedroom was “in huge disarray,” and their bed was covered with pill bottles,

clothes hangers, blankets, a supportive infant pillow, plastic bags, a stereo, and

other miscellaneous items. Id. at 135. Mother indicated that Child was

sleeping in that bed with her and Father. There was no other sleeping

arrangement for Child, who was only four days old. Mrkaljevic discussed her

concerns about Child’s sleeping arrangement, and also spoke with Parents

about cleaning up the home. She did not observe any bruises on Child, who

was wearing only a diaper. Mrkaljevic returned later that day with a pack and

play portable crib for Child to sleep in.

[8] Dr. Todd Baxter, a pediatrician, examined Child in the hospital approximately

four hours after his birth. Dr. Baxter was not made aware of any difficulties or

complications with Child’s birth that would have caused injury to Child.

During his examination of Child, Dr. Baxter noted only a genital abnormality

that needed to be addressed by a specialist. Dr. Baxter saw Child one more

time before Mother and Child were released from the hospital.

[9] Dr. Baxter saw Child at his office on September 20 for a routine, follow-up

visit. During this visit Dr. Baxter observed what appeared to be a bruise, about

a centimeter in size, on Child’s right cheek. He also noted a “vague

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 discoloration over [Child’s] lower rib cage” that was not present when he

examined Child at the hospital. Id. at 58. Dr. Baxter could not discern whether

the discolored area was “an evolving bruise or something potentially vascular in

the skin.” Id. Of greatest concern, however, was the injury on Child’s cheek.

[10] Dr. Baxter discussed the bruise with Mother, but his concerns were not

alleviated because Mother did not provide a plausible explanation as to how

Child, then five days old, sustained a bruise on his cheek. Mother initially

stated that she believed the mark was dirt and then suggested that Child could

have been injured “by his older brother who was described as being kind of

rowdy and throwing things in the house.” 1 Id. Mother also questioned whether

Child may have bumped against a crib. Dr. Baxter testified that a bruise on a

baby is a concern “because they don’t bruise just naturally through day to day

contact.” Id. at 59. Particularly when there is a sign of an unexplained injury

around the head and neck, Dr. Baxter noted that such “can be a signal that it

was not through an accidental injury” or, in other words, “indicative of

physical abuse.” Id. at 59, 63. Given his concerns, Dr. Baxter recommended x-

rays, a head CT, and blood work (due to Father’s family history of hemophilia).

The results of the tests came back normal. 2 Nonetheless, because of the bruise,

1
Mother was referring to A.M., who was two years old at the time.
2
There was a “slight elevation in the PTT,” which was part of the coagulation studies, so Dr. Baxter
consulted with a hematologist who was not concerned with the elevated test result in a newborn. Transcript
Vol. II. at 60. Also, the x-ray was reviewed by a radiologist who did not have specialized training in reading
x-rays of children.

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 a report was submitted to DCS as well as the Child Protection Team at Riley

Hospital for Children.

[11] After the report was reviewed by the Child Protection Team, additional

concerns about Child’s well-being emerged and DCS was again notified.

Mrkaljevic discussed the report with Parents, but they minimized DCS’s

concerns, stating, “it’s just a little bruise” and “every kid gets bruised.” Id. at

149. On September 24, 2018, DCS requested emergency custody 3 of Child and

all of his half-siblings because of Parents’ inability to explain the injuries to

Child, concerns about living conditions and recurrent lice, and educational

neglect (for the school-aged children). The court granted the motion.

[12] Mrkaljevic then tried to locate the family by driving to their home and

contacting the non-custodial parents. She also contacted the local elementary

school and learned that Parents informed the school the family was moving to

Kentucky. Mrkaljevic then contacted two school corporations in Kentucky as

well as the sheriff’s department. She was unable to locate the family.

According to Mother, the family (except for one of Mother’s children) moved

to Kentucky on September 21, 2018, with plans to stay with a relative until they

could find a place of their own. Shortly after moving to Kentucky, Father

obtained employment and Parents found a house of their own.

3
A probable cause affidavit submitted with the emergency request sets out additional injuries sustained by
Child that were identified by members of the Child Protection Team.

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[13] Eventually, on October 17, 2018, Mrkaljevic successfully contacted Father via

telephone, but he refused to tell her where they were. Shortly thereafter, the

Kentucky DCS located Parents and detained Child and his half-siblings

pursuant to the emergency custody order issued by the court in Indiana. The

children were returned to Indiana, and Child, then a month old, was placed

with maternal grandmother, where he remains. The other children were sent to

different placements.

[14] On October 18, 2018, Child had another x-ray. Dr. Megan Marine, a pediatric

radiologist with Riley Hospital, reviewed the x-ray. She was also made aware

of Child’s previous x-ray and reviewed those scans on November 29, 2018. Dr.

Marine determined that Child’s x-rays from September 20, 2018 showed “a

bucket handle appearance at the end of the left tibia bone, consistent with a

fracture that is called a classic metaphyseal lesion,” which was a different

diagnosis than provided by the radiologist who initially reviewed the x-ray.

Transcript Vol. II at 75. Dr. Marine believed that the injury occurred within five

to seven days prior to the September 20 scan, which timeframe included Child’s

birth. Dr. Marine testified, however, that such an injury is not typically seen as

a result of birth trauma unless perhaps the Child was born breech, which Child

was not. Dr. Marine thus found Child’s injury to be concerning for physical

abuse. She explained that the type of fracture Child suffered would have

resulted from a jerk or tug on the leg or some sort of force resulting from

shaking. Dr. Marine acknowledged that her interpretation of the September 20

x-ray was different than the radiologist who initially read the x-ray as normal

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 but explained that it was common for a pediatric radiologist to have a different

opinion given the extra training they receive. According to Dr. Marine, the

October 18 x-ray showed that the tibia fracture had healed and that there was

no permanent injury.

[15] After the children were removed, Parents were permitted supervised visitation.

One visit was ended early because some of the children were running up and

down the halls and the visitation facilitator became frightened by Parents’

behavior. Specifically, Father got upset and raised his voice after the facilitator

told them that if one child had to go to the restroom, they all had to go together.

The facilitator’s requirement in this regard was based on statements by Parents

and/or one of the children that they were going to run. During this visit,

Mother was also “[v]ery intimidating, very threatening.” Id. at 16. Parents had

two additional visits (November 14 and 17, 2018) supervised by Mrkaljevic.

According to Mrkaljevic, Child remained in his car seat for the entire first visit

and during the majority of the second. Mrkaljevic remained concerned about

the children being returned to Parents’ care.

[16] On October 19, 2018, DCS filed its petition alleging Child and his half-siblings

to be CHINS. For Child, DCS alleged that he was a CHINS under Ind. Code §

31-34-1-1 (child seriously endangered by Parents’ inability to supply him with

necessary care and supervision) and I.C. § 31-34-1-2 (child seriously endangered

due to injury by an act or omission of Parents). DCS also alleged that Child

was presumed to be a CHINS under I.C. § 31-34-12-4 because he was injured

while in Parents’ care, the injury was not one that would ordinarily be sustained

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 except for an act or omission of Parents, and there is a reasonable probability it

was not accidental.

[17] On December 3, 2018, DCS filed a motion requesting that the court permit Dr.

Marine to testify telephonically at the upcoming factfinding hearing. In support

of its motion, DCS asserted that it had just learned of Dr. Marine as a witness

the previous week and that she was unavailable to testify in person due to her

hospital responsibilities. The court granted DCS’s motion on December 5,

2018. The following day, Mother filed an objection to DCS’s motion for

telephonic testimony, arguing that, pursuant to Ind. Admin. Rule 14, it was

untimely and that DCS failed to show good cause.

[18] The court held a factfinding hearing on the CHINS petition on December 7, 10,

and 18, 2018. At the start of the hearing on December 7, Mother reaffirmed her

objection to Dr. Marine’s telephonic testimony, but the court again overruled

the objection. Mother reasserted her objection a third time, and Father joined

in the objection, prior to Dr. Marine’s telephonic testimony. The trial court,

however, overruled the objection and permitted Dr. Marine to testify

telephonically. On January 11, 2019, the court entered its order adjudicating

Child a CHINS under I.C. §§ 31-34-1-1 and -2. The court also found that the

presumption under I.C. § 31-34-12-4 applied. 4

4
The court found insufficient evidence to adjudicate Child’s half-siblings to be CHINS because at the time of
the fact-finding hearing, there was insufficient evidence about the home conditions and educational neglect

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[19] The court held a dispositional hearing on February 7, 2019. DCS Family Case

Manager (FCM) Dustin Voelker recommended that Parents participate in

homebased case management to address home conditions, parenting skills,

coping skills, communication within the household, and budgeting. He also

recommended that Parents engage in individual therapy to address their

parenting techniques and anger management issues. FCM Voelker testified that

if a service provider found Parents to have addressed and reached these goals,

then the provider could request that the services be closed out. On March 13,

2019, the court entered its dispositional decree ordering Parents to participate in

services, including homebased case management, individual therapy, and

visitation. Parents now appeal. Additional facts will be provided as necessary.

Discussion & Decision

1. Telephonic Testimony

[20] Parents argue that the court erred in permitting Dr. Marine to testify

telephonically during the CHINS factfinding hearing. Admin. R. 14(B)

provides:

[A] trial court may use telephone or audiovisual communications
subject to:

since Parents had moved to Kentucky and there had been no assessment of their current living conditions or
current review of school records.

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 (1) the written consent of all the parties, entered on the
Chronological Case Summary; or

(2) upon a trial court’s finding of good cause, upon its own
motion or upon the motion of a party. The following factors shall
be considered in determining “good cause”:

(a) Whether, after due diligence, the party has been unable
to procure the physical presence of the witness;

(b) Whether effective cross-examination of the witness is
possible, considering the availability of documents and
exhibits to counsel and the witness;

(c) The complexity of the proceedings and the importance
of the offered testimony in relation to the convenience to
the party and the proposed witness;

(d) The importance of presenting the testimony of the
witness in open court, where the fact finder may observe
the demeanor of the witness and impress upon the witness
the duty to testify truthfully;

(e) Whether undue surprise or unfair prejudice would
result; and

(f) Any other factors a trial court may determine to be
relevant in an individual case.

(3) A party or a trial court if it is acting on its own motion must
give notice of the motion to use telephone or audiovisual
telecommunication as follows:

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 (a) Any motion for testimony to be presented by telephone
or audiovisual telecommunication shall be served not less
than thirty (30) days before the time specified for hearing
of such testimony;

(b) Opposition to a motion for testimony to be presented
by telephone or audiovisual telecommunication shall be
made by written objection within seven (7) days after
service;

(c) A trial court may hold an expedited hearing no later
than ten (10) days before the scheduled hearing of such
testimony to determine if good cause has been shown to
present testimony by telephone or audiovisual
telecommunication;

(d) A trial court shall make written findings of fact and
conclusions of law within its order on the motion for
testimony to be presented by telephone or audiovisual
telecommunication; and

(e) For cause found, a trial court may alter the time
deadlines set forth in paragraphs (a) through (c) upon
motion made prior to the expiration of the time for the
required action.

(Emphases supplied).

[21] DCS does not dispute that its motion was filed less than thirty days before the

hearing and that the trial court did not enter written findings of fact and

conclusions of law in its order granting DCS’s request to present Dr. Marine’s

testimony via telephone. Clearly, the court did not comply with the clear

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 dictates of Admin. R. 14. We therefore conclude that the trial court erred in

permitting Dr. Marine to testify telephonically. As set out below, however,

DCS presented other evidence of probative value to support the CHINS

determination such that the court’s error in this regard is harmless. See Ind.

Appellate Rule 66 (providing that we shall not reverse on appeal if an error’s

“probable impact, in light of all the evidence in the case, is sufficiently minor so

as not to affect the substantial rights of the parties”).

2. Sufficiency

[22] Parents argue that the evidence does not support the determination that Child is

a CHINS. “[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). Our Supreme Court has noted that “a separate analysis as to each parent

is not required” in making a CHINS determination because a CHINS

adjudication reflects the status of a child without establishing the culpability of

a particular parent. Id. Put differently, a CHINS adjudication is not a

determination of parental fault but rather is simply a determination that a child

is in need of services and is unlikely to receive those services without the court’s

intervention. Id. at 105.

[23] “Because a CHINS proceeding is a civil action, 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). In reviewing the

sufficiency of the evidence supporting a CHINS determination, we consider

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 only the evidence most favorable to the judgment and the reasonable inferences

flowing therefrom. In re J.L., 919 N.E.2d 561, 563 (Ind. Ct. App. 2009).

[24] Where, as here, a trial court enters findings of fact and conclusions of law in

support of its CHINS determination, we apply a two-tiered standard of review.

Parmeter v. Cass Cnty. Dep’t of Child Servs., 878 N.E.2d 444, 450 (Ind. Ct. App.

2007). First, we consider whether the evidence supports the findings, and

second, whether the findings support the judgment. Id. We will 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. While we defer to the trial court’s findings of fact,

we do not do so as to its conclusions of law. Id. Additionally, we will not

reweigh the evidence; rather, we consider the evidence favorable to the

judgment and draw all reasonable inferences in favor of the judgment. Id.

[25] Parents first challenge several of the court’s findings of fact as being clearly

erroneous. We agree with Parents that the court’s findings 4, 5, and 11 are

unsupported by the evidence. In those findings, the court stated that “Dr. Todd

Baxter was the presiding doctor at birth,” that “Dr. Baxter did not have

difficulties with mother’s delivery that he believed could have caused injury to

the child,” and that “[a]s noted in paragraph 5 above, Dr. Baxter experienced

no difficulties in mother’s birth of the child.” Appellant’s App. Vol. 2 at 90-91.

The record is clear that Dr. Baxter was not the presiding doctor at birth, but

rather, was Child’s pediatrician, who examined Child for the first time

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 approximately four hours after his birth. In any event, Dr. Baxter did testify

that Child was born vaginally and that he was not made aware of any

difficulties or complications during Child’s birth. Parents’ remaining challenges

to the court’s findings are simply requests to reweigh the evidence, which we

will not do.

[26] Parents also argue that DCS failed to prove by a preponderance of the evidence

that Child is a CHINS under I.C. § 31-34-1-1 and I.C. § 31-34-1-2. They also

challenge the court’s determination that the rebuttable presumption under I.C. §

31-34-12-4 applied.

[27] We need not address Parents’ arguments with regard to I.C. §§ 31-34-1-1 and -2

because we conclude that the court properly determined that the rebuttable

presumption set out in I.C. § 31-34-12-4 applies in the instant case and that

Parents failed to rebut the presumption. I.C. § 31-34-12-4 provides that there is

a rebuttable presumption that a child is a CHINS

because of an act or omission of the child’s parent, guardian, or
custodian if the state introduces competent evidence of probative
value that:

(1) the child has been injured;

(2) at the time the child was injured, the parent, guardian, or
custodian:

(A) had the care, custody, or control of the child; or

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 (B) had legal responsibility for the care, custody, or control
of the child;

(3) the injury would not ordinarily be sustained except for the act
or omission of a parent, guardian, or custodian; and

(4) there is a reasonable probability that the injury was not
accidental.

In other words, “[i]n cases where a child has injuries that suggest neglect or

abuse, it shifts the burden to the party most likely to have knowledge of the

cause of the injuries—the parent, guardian, or custodian—to produce evidence

rebutting the presumption that the child is a CHINS.” Ind. Dep’t of Child Servs.

v. J.D., 77 N.E.3d 801, 807 (Ind. Ct. App. 2017), trans. denied.

[28] On September 20, 2018, Mother took Child, who was just five days old, to see

Dr. Baxter for his first doctor’s appointment. Dr. Baxter noted that Child had a

bruise on his cheek and discoloration around his ribcage. Dr. Baxter had

examined Child shortly after his birth and did not note any injuries or bruises

associated with Child’s birth or other abnormalities other than a genital

abnormality. Mother herself admitted that Child did not have a bruise on his

face the day before the office visit with Dr. Baxter and that a photograph taken

on September 19 showed that Child did not have a bruise on his cheek or

discoloration around his ribcage. Mrkaljevic also saw Child the day before and

did not observe a bruise on his face. Child was in Parents’ sole care and

custody between DCS’s visit on September 19 and the doctor visit the following

day.

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[29] Dr. Baxter testified that a bruise on a baby is concerning “because they don’t

just bruise naturally through day to day contact. And particularly when it’s the

head and neck region, that can be a signal that it was not through an accidental

injury.” Transcript Vol. II at 59. At the appointment, Mother was not able to

provide a plausible explanation for Child’s injury. Dr. Baxter ordered an x-ray,

blood work, and other tests to exclude medical reasons as a possible

explanation. He testified that if an injury “can’t be explained through a very

tangible event” or other medical cause, then such can be indicative of physical

abuse. Id. at 64. Dr. Baxter reported his concerns to DCS.

[30] Through Dr. Baxter’s testimony, DCS introduced evidence of probative value

that Child suffered injuries while in the sole care and custody of Parents,

Parents were unable to provide an explanation for the injuries, the injuries were

not of the type that would ordinarily be sustained but for an act or omission of

Parents, and there is a reasonable probability that the injuries were non-

accidental. Given this evidence alone, the court’s conclusion that the statutory

presumption applied is supported by the evidence. Therefore, the court’s

CHINS determination with respect to Child is supported by sufficient evidence.

3. Dispositional Decree

[31] Parents argue that the court abused its discretion in ordering them to participate

in services as part of the dispositional decree. Specifically, Parents argue that

the ordered services are not tailored to reunifying the family and are not related

to the reasons for Child’s removal.

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[32] “Although the juvenile court has broad discretion in determining what

programs and services in which a parent is required to participate, the

requirements must relate to some behavior or circumstances that was revealed

by the evidence.” In re K.D., 962 N.E.2d 1249, 1258 (Ind. 2012) (quoting In re

A.C. v. Marion Cty. Dep’t of Child Servs., 905 N.E.2d 456, 464-65 (Ind. Ct. App.

2009)). Indeed, “forcing unnecessary requirements upon parents whose

children have been adjudicated as CHINS could set them up for failure with the

end result being not only a failure to achieve the goal of reunification, but

potentially, the termination of parental rights.” A.C., 905 N.E.2d at 464-65.

[33] Here, FCM Dustin Voelker recommended that Parents participate in

homebased case management, individual therapy, and visitation. He explained

that through these services, Parents could address home conditions, parenting

skills, coping skills, communication within the household, and budgeting. He

also testified that individual therapy will benefit Mother and Father by

addressing any anger management issues. The court followed FCM Voelker’s

recommendation and ordered that Parents participate in homebased case

management, individual therapy, and visitation.

[34] Clearly the ordered services are aimed at addressing the concerns of physical

abuse—especially in a case where a newborn is found to have sustained

unexplained injuries. That DCS had yet to identify specific service providers at

the time of the dispositional hearing due to the fact that Parents now reside in

Kentucky does not render the trial court’s order that Parents participate in

services an abuse of discretion. In this regard, we note that FCM Voelker

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 testified that he was “looking at the possibility of transferring the case to

Kentucky.” Transcript Vol. II at 219. The trial court did not err, or abuse its

discretion, in ordering Parents to participate in the above-mentioned

reunification services.

[35] Judgment affirmed.

Brown, J. and Tavitas, J., concur.

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