In the Matter of K.C., C.M., Ki.C., & K.M., (Minor Children), and, A.C., (Mother) & R.L.M., (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 09 2016, 10:14 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Small Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana

Robert J. Henke
David E. Corey
Deputy’s Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of K.C., C.M., November 9, 2016
Ki.C., & K.M., Court of Appeals Case No.
60A05-1603-JC-488
(Minor Chidren), Appeal from the Owen Circuit
Court
and, The Honorable Kelsey B. Hanlon,
Judge
A.C., (Mother) & R.L.M., Trial Court Cause No.
(Father), 60C02-1511-JC-266
60C02-1511-JC-267
Appellants-Respondents, 60C02-1511-JC-268
60C02-1511-JC-269

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 v.

The Indiana Department of
Child Services,

Appellee-Petitioner.

Barnes, Judge.

Case Summary
[1] R.M. (“Father”) and A.C. (“Mother”) appeal the trial court’s adjudication that

their four children are children in need of services (“CHINS”). We affirm.

Issue
[2] The combined and restated issue before us is whether there is sufficient

evidence in the record to support the CHINS adjudication.

Facts
[3] Mother and Father are the parents of four children, who, in November 2015,

were between four months and six years old. In that month, the Owen County

office of the Department of Child Services (“DCS”) received a report that

Father was accused of killing an unidentified man. Additionally, DCS received

reports claiming that the children were neglected as a result of their parents’

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 drug use and domestic violence in the home.1 On November 24, 2015, DCS

caseworker Charlotte Church interviewed the parents at the maternal

grandmother’s home, where DCS had learned the parents were located with

their children at that time, although they were not living there.

[4] Church spoke with Mother, who told Church that she and Father had been in

an “altercation” that resulted in a mirror being broken in the home where they

lived with the children. Tr. p. 35. Mother did not provide Church with any

details as to this “altercation,” nor did Church notice that Mother had any

injuries. Father interrupted Church’s attempts to speak with Mother alone.

Father also appeared to Church to be “frustrated,” and his demeanor fluctuated

between calm and agitated. Id. Mother later insisted that no domestic violence

occurred in the home, and no domestic battery charges have been filed against

Father.

[5] Both parents refused Church’s offer at that time to take a drug screen but

admitted to taking Suboxone, which is used medically to treat opioid addiction.

Church noted that Mother had a prescription bottle for Suboxone from July

2015 and that Father had a current prescription for Suboxone. The parents did

not permit Church to observe the family home at that time. However, Church

1
DCS also apparently received information that one of the children had been the victim of sexual abuse.
This claim was not included in the CHINS petitions, nor was any evidence ever presented to support this
allegation.

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 did so on another occasion, and she had no concerns regarding cleanliness,

food, bedding, or anything else regarding the physical condition of the home.

[6] On November 25, 2015, DCS removed the four children from Mother and

Father’s care and filed identical CHINS petitions as to each of the children.

The children were placed in the care of the maternal grandmother. During the

approximately two months between the filing of the petitions and the holding of

fact-finding hearings, Mother and Father voluntarily and routinely submitted to

drug screens and never tested positive for any improper substances. Both

parents did often test positive for Suboxone, although not always. Also, after

the CHINS petition was filed and before the first fact-finding hearing, DCS

referred both parents to either Hamilton Center or Cummins for a mental

health evaluation and treatment. Father first sought treatment services from

Hamilton Center but they refused to provide services to him for reasons that are

not specified in the record. Father then went to Cummins, which told Father

that they could not meet his psychological needs. Father then sought and

received treatment from a facility called Centerstone, which provides substance

abuse and individual counseling. Father may have sustained a head injury at

some point in the past, and DCS believes he may need a neuro-psychological

examination. There is no evidence as to any particular mental illness from

which Father suffers.

[7] The trial court conducted fact-finding hearings on January 15 and 26, 2016.

Church testified that many people are frightened of Father’s temper. Maternal

grandmother did not like supervising visits because of her fear of Father, which

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 resulted in some visitations being missed and eventually changed to visitation at

the DCS office rather than maternal grandmother’s home. Otherwise,

however, Mother and Father consistently visited with the children.

[8] Evidence also was presented that, after the children’s removal, they were all

taken for a medical checkup. The two youngest children were not current on

their recommended vaccinations, but the older two were. A physician’s

assistant at the medical office expressed concern that none of the children were

regularly brought in for well-child examinations. However, all four children

were noted to be developmentally normal, and no physical ailments were

observed. One of the children needed dental care, which was arranged for by

maternal grandmother.2 The parents acknowledged at the time of the children’s

removal that this child likely needed dental care, due to what they described as

“bottle rot.” Tr. p. 37.

[9] Father’s criminal history was discussed at the hearing. Father has prior

convictions from between 2002 and 2009 for public intoxication, criminal

recklessness, resisting law enforcement, criminal mischief, possession of

methamphetamine, battery, and domestic battery. The domestic battery charge

was for Father’s battery of his mother with a baseball bat. In November 2015,

Father was charged with battery with a deadly weapon and operating a vehicle

2
During the fact-finding hearing, DCS attempted to introduce copies of the children’s medical records into
evidence. Mother’s and Father’s attorneys objected. The trial court stated it was taking the matter under
advisement, but it never subsequently stated its ruling on the matter. The records have not been included as
an exhibit in the record submitted to this court. In fact, no documentary exhibits are included in the record.

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 after being adjudged an habitual traffic violator. In December 2015, Father was

charged with theft and criminal trespass in one case, and another habitual

traffic violator charge in another case. However, law enforcement has not been

able to corroborate that Father killed anyone, and he has not been charged with

murder, although as of the time of the fact-finding hearing the matter was still

under investigation.

[10] Each parent had one prior substantiated case of neglect with DCS. In 2011,

Mother was found to have neglected one of the children because of physical

violence occurring in front of the child, related to a fight Mother had with her

sister. This substantiation resulted in an informal adjustment. In 2005, a case

of neglect was substantiated against Father with respect to a child not involved

in these proceedings and a woman other than Mother, for that child’s failure to

thrive. In addition to these substantiations, DCS investigated the family on at

least four other occasions between 2012 and 2015 but failed to substantiate

claims of neglect, most recently in July 2015. Church testified that these

failures to substantiate were not so much because the claims were not proven,

but because Mother and Father did not cooperate with DCS investigations.

[11] At the fact-finding hearing, DCS presented the testimony of Scott Mayhew.

Mayhew testified that he had purchased at least two guns from Father, the last

time being approximately a year earlier. Mayhew also described an altercation

sometime in October 2015 involving himself, Father, Mother, and multiple

other individuals, in which Father approached Mayhew with a club before

being disarmed by Mayhew’s son and Mother slapped Mayhew twice. The

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 children were not present during this altercation; it appears this altercation

formed the basis of Father’s pending battery charge. Mayhew also said that he

had witnessed Father yelling at and being verbally abusive to the children and

Mother, although he never witnessed any physical abuse.

[12] After Mayhew testified about the altercation, counsel for DCS asked him

whether he had ever observed Father engaged in any illegal conduct, and

Mayhew responded that he had witnessed Father sell drugs to a man named

Larry Farley. Counsel for Father immediately objected, joined by Mother’s

attorney, on the basis that they had no notice of any allegation that Father had

sold drugs, despite a discovery request asking DCS to reveal any allegations of

illegal conduct by Father and Mother. After discussion of the matter with

counsel in chambers, the trial court allowed DCS to again ask Mayhew about

purported drug dealing by Father. Father objected again, this time on the basis

that there was a lack of foundation for the claim that he had dealt drugs.

Mayhew testified that Farley had told him Father had sold heroin to him.

Father objected to this testimony as hearsay, and the trial court sustained the

objection. DCS then clarified with Mayhew that he observed two instances in

which Father purportedly sold heroin and that at least some of the children

were present on the first occasion but not the second.

[13] On February 1, 2016, the trial court entered orders finding that all four children

were CHINS, accompanied by the following findings:

1. Domestic violence has occurred in the home. During the
initial assessment Mother indicated concerns about the home

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 conditions to FCM Supervisor Charlotte Church. Respondent
Mother indicated that she did not want DCS to view the family
home because it was in disarray after an altercation with
[Father], during which he threw and broke items in the home.
Respondent Mother provided a different version of events at fact-
finding. The Court does not find Mother’s in-court testimony
relating to this event to be credible and believes that Respondent
Mother was being truthful at the time of the assessment.

2. During the assessment phase, FCMS Church attempted to
interview Respondent Mother about the allegations privately.
Respondent Father interrupted the same and the interview was
stopped.

3. Respondent Father has engaged in high risk criminal
conduct in the family home. DCS witness Scott Mayhew
observed Respondent Father sell narcotics from the home while
the Respondents’ older Children were present sometime in
October, 2015. Scott Mayhew also purchased a firearm from
Respondent Father, who is a convicted felon, in the family home.
Again, the witness indicated that the Children were present in the
home during the transaction. Respondent Mother was also
present at the home during both incidents.

4. Respondent Parents both report a history of substance
abuse. Both Parents appear to have taken substantial steps in
addressing the same. Respondent Father has passed all screens
administered by DCS after refusing the first screen offered.
Respondent Mother failed her first screen for suboxone after
refusing to take the first screen offered. Mother was candid about
what the screen results would be and had used suboxone left
from a previous, recent prescription.

5. Respondent Father has a history of violent conduct,
domestic violence and criminal convictions relating to the same.

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 Respondent Father is unlikely to seek or receive professional
treatment for the same without the coercive intervention of the
Court.

6. Respondent Mother has been unable to ensure the safety
of the Child[ren] in the home. Mother’s contradictory statements
regarding the cause of the disarray in the family home at the time
of initial assessment suggests an inability or unwillingness to
address the safety concern that domestic violence poses in the
home.

App. pp. 37-38. The trial court also specifically found that the children were

CHINS under Indiana Code Section 31-34-1-1 and that leaving the children in

Mother and Father’s care would be contrary to their welfare because “of an

inability, refusal or neglect to provide shelter, care, and/or supervision at the

present time . . . .” Id. at 38. The trial court entered dispositional orders on

February 23, 2016. Mother and Father now appeal.

Analysis
[14] Mother and Father’s overall assertion is that there is insufficient evidence to

sustain the finding that their children are CHINS. When reviewing the

sufficiency of the evidence for a trial court’s CHINS determination, “‘[w]e

neither reweigh the evidence nor judge the credibility of the witnesses.’” In re

S.D., 2 N.E.3d 1283, 1286 (Ind. 2014). (quoting In re K.D., 962 N.E.2d 1249,

1253 (Ind. 2012)). We must instead consider only that evidence supporting the

trial court’s decision and any reasonable inferences drawn therefrom. Id. at

1287.

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[15] The trial court here entered limited sua sponte findings and conclusions

supporting its CHINS finding, although such findings and conclusions are not

statutorily required. See id. “As to the issues covered by the findings, we apply

the two-tiered standard of whether the evidence supports the findings, and

whether the findings support the judgment.” Id. We review any remaining

issues not covered by the findings under the general judgment standard,

meaning we will affirm a judgment if it can be sustained on any legal theory

supported by the evidence. Id. Also, as a general rule appellate courts grant

latitude and deference to trial courts in family law matters. Steele-Giri v. Steele,

51 N.E.3d 119, 124 (Ind. 2016). This deference recognizes a trial court’s

unique ability to see the witnesses, observe their demeanor, and scrutinize their

testimony, as opposed to this court’s only being able to review a cold transcript

of the record. Id.

[16] Under Indiana Code Section 31-34-1-1,3 a child under eighteen years old is a

CHINS if:

(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

3
Indiana Code Section 31-34-1-2 alternatively provides that a child is a CHINS if his or her physical or
mental health is seriously endangered due to injury caused by the act or omission of the child’s parent or
guardian. DCS made no allegation and the trial court made no finding that the children were CHINS under
this statutory provision.

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 (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.

DCS bears the burden of proving by a preponderance of the evidence that a

child is a CHINS. In re S.A., 15 N.E.3d 602, 607 (Ind. Ct. App. 2014), trans.

denied.

[17] A CHINS proceeding focuses on the best interests of the children, not the “guilt

or innocence” of either parent. In re N.E., 919 N.E.2d 102, 106 (Ind. 2010).

The purposes of a CHINS case are to help families in crisis and to protect

children, not punish parents. S.D., 2 N.E.3d at 1285. Governmental intrusion

into a family’s life is reserved only for families who cannot meet a child’s needs

without coercion—“not merely those who have difficulty doing so.” Id. It is

not enough for DCS to prove that one or the other of a child’s parents suffers

from shortcomings; rather, there must be evidence that the parents are unlikely

to meet a child’s needs absent coercive court intervention. S.A., 15 N.E.3d at

611-12. And, evidence that a child is endangered is not by itself enough to

warrant a CHINS finding and the State’s parens patriae intrusion into family

life. S.D., 2 N.E.3d at 1287. On the other hand, a court need not wait until a

tragedy occurs before entering a CHINS finding. In re R.S., 987 N.E.2d 155,

158 (Ind. Ct. App. 2013).

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[18] We first address the trial court’s finding that Father “has engaged in high risk

criminal conduct in the family home.” App. p. 37. The trial court went on to

find that Father dealt “narcotics” in the home while the children were present.

Id. We agree with Mother and Father that there is no admissible evidence to

support such a finding. It was based solely upon Mayhew’s testimony, who

admitted he had no idea what heroin looked like and was told by a third

person—who did not testify at the fact-finding hearing—that it was heroin. The

trial court sustained Father’s hearsay objection to this testimony.

[19] DCS does not attempt to argue that Mayhew’s testimony on this point was

admissible; it claims solely that Mother and Father waived any claim of error

by failing to timely object. This argument is borderline disingenuous. When

Mayhew first mentioned Father’s purported sale of heroin, the attorneys for

both Mother and Father objected on the basis that they had no notice DCS

would attempt to claim that Father had dealt drugs. It is well-settled that DCS

must give parents notice of the allegations it intends to pursue in a CHINS case

so that the parents may prepare for and attempt to refute them. See In re Ju.L.,

952 N.E.2d 771, 778 (Ind. Ct. App. 2011). After an in-chambers discussion, the

trial court permitted DCS to continue questioning Mayhew about the purported

drug dealing by Father. Father again objected on the basis that DCS had not

established a foundation for such evidence. See Moon v. State, 560 N.E.2d 76, 76

(Ind. Ct. App. 1990) (noting that lay witnesses may testify to identity of

controlled substance based upon the witness’s personal experience). After

allowing DCS to ask Mayhew how he knew that Father was selling heroin, he

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 responded that Farley had told him it was heroin. Father objected to this

testimony, too, and the trial court sustained it. It was clearly proper to sustain

that objection, given that Mayhew was attempting to relate Farley’s

statement—that he bought heroin from Father—for the truth of the matter

asserted. See Ind. Evidence Rule 801(c). Mother and Father adequately

preserved their claim of error with respect to admission of evidence that Father

dealt heroin. Similarly, Mayhew’s objected-to testimony that someone had said

he or she was going to purchase morphine from Father also was hearsay.

Without that evidence, all that Mayhew legitimately testified to is that he saw

Father pass something hand-to-hand to another person. There is insufficient

evidence to support the finding that Father dealt narcotics.

[20] There is, by contrast, evidence that Mayhew bought two guns from Father.

Although Father has not been charged with a crime in connection with these

acts, he is a convicted felon, and federal law generally prohibits possession of

firearms by felons. See 18 U.S.C. § 922(g). The children apparently were

present in the home during at least one of these acts.

[21] Indeed, there is a significant pattern of Father having frequently engaged in

criminal activity over the years. He was facing a plethora of various charges at

the time of the CHINS filing and fact-finding hearing. Some of Father’s

criminal activities have been violent in nature, such as his battery of his mother

with a baseball bat and, more recently, the battery described by Mayhew for

which Father was currently facing charges. This corresponds more generally

with evidence that Father is, at the least, unpleasant and verbally abusive

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 toward many people, most importantly Mother and the children. Father’s

abusiveness was causing problems with visitation prior to the CHINS fact-

finding hearing.

[22] Mother has some of her own issues with violence and aggressiveness. The 2011

CHINS adjudication was related to a battery committed in front of one of the

children. Mayhew accused her of being involved in the October 2015

altercation and slapping him twice. A medical provider also testified to Mother

calling her office after the CHINS case was filed and being verbally abusive to

staff.

[23] This brings us to the trial court’s finding that domestic violence occurred in the

family home. Mother and Father dispute the support for this finding. It is true

that Church did not know any details about the “altercation” Mother

mentioned to her, aside from the fact that a mirror was broken during it. Tr. p.

35. However, in another display of Father’s controlling behavior, he prevented

Mother from discussing the incident in detail with Church. It was reasonable

for the trial court to infer that a violent incident of some kind occurred in the

family home. Also, the trial court was not required to accept Mother’s

alternative explanation at the fact-finding hearing for how the mirror was

broken. We have held that, “a child’s exposure to domestic violence can

support a CHINS finding.” K.B. v. Indiana Dep’t of Child Servs., 24 N.E.3d 997,

1003 (Ind. Ct. App. 2015). Furthermore, there have been multiple studies

indicating the harm that witnessing conflict between parents can have on very

young children, such as the children here, who are unable to effectively

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 communicate the effect that such conflict has on them. See In re E.M., 4 N.E.3d

636, 644 (Ind. 2014).

[24] The trial court also found that Father “is unlikely to seek or receive professional

treatment” to address his history of violent conduct. App. p. 38. We

acknowledge the undisputed evidence in the record that Father did make some

efforts to seek counseling at three different facilities after the CHINS filing and

before the fact-finding hearings. However, we still cannot say the trial court’s

finding on this point is clearly erroneous. Father’s criminal history extends

back over a decade, but, as of the fall of 2015, he still was engaging in

sometimes violent conduct. Thus, despite previous opportunities to address his

violent and aggressive temper, he evidently failed to benefit from those

opportunities. Additionally, the evidence indicates Father has very deep-seated

emotional or mental health issues that will not respond to ordinary treatment,

as two different facilities indicated that they would be unable to assist him.

This suggests that Father may require unusual and extensive assistance in

addressing his issues, including a neuro-psychological examination, and that

coercive intervention will be necessary to ensure that he follows through on that

assistance.

[25] In sum, there is sufficient evidence in the record to infer, in particular, that

Father’s violent temper and aggressiveness and current criminal charges,

coupled with his multiple prior convictions, pose a threat to the children’s well-

being that will not be addressed without coercive court intervention. Mother

and Father suggest that there is evidence the children are well cared-for, as

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 indicated by DCS’s lack of concern over the physical condition of the family

household and lack of evidence that they suffered from direct physical abuse or

were malnourished or anything of that nature. However, this is a request to

reweigh the evidence that we must reject. See In re Des.B., 2 N.E.3d 828, 838

(Ind. Ct. App. 2014) (affirming CHINS adjudication based on father’s violent

conduct despite argument that DCS failed to identify a specific danger caused

by parents to children’s physical or mental condition and despite evidence that

family home was adequate and there was no evidence children were

malnourished or unhealthy or directly abused). We also reiterate that the trial

court was not required to wait until some actual harm or tragedy occurred

before finding that the children were CHINS. See R.S., 987 N.E.2d at 158.

[26] Additionally, there was evidence in the record to indicate that Mother and

Father were slipping in their ability to care for the children. The younger two

children were not current on their vaccinations, and none of the children were

being taken to the pediatrician for regular well-checks. There was no evidence

as to Mother and Father having a legitimate reason for endangering their two

youngest children by not vaccinating them. One of the children needed

immediate dental care; Mother and Father were aware of this fact but had failed

to seek treatment.

[27] We acknowledge that Mother and Father have taken some steps to address the

multiple issues they face. Although both parents have a history of substance

abuse, it appears they both were making progress in treating that problem, as

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indicated by their prescriptions for Suboxone4 and their repeated negative drug

screens during the pendency of the CHINS case. 5 Indeed, the trial court’s

finding regarding Mother and Father’s drug use would not seem to support a

CHINS finding because they are addressing that issue without coercive court

intervention. Still, the parties’ drug use was but one part of a multitude of

problems they were facing, and it is reasonable to infer they may need coercive

government assistance in remedying all of them. Additionally, much of the

evidence in this case is directed towards Father’s behavior; there is some with

regard to Mother but not as much. However, a CHINS finding is based upon

the condition of the child and may be based solely upon the acts or omissions of

one parent. N.E., 919 N.E.2d at 105. Particularly in light of the deference we

grant to trial courts in cases such as this, we cannot say the trial court clearly

erred in finding the children here to be CHINS.

4
DCS seems to suggest Mother was illegally taking Suboxone without a prescription from her July 2015
bottle. However, a prescription is valid for one year in Indiana. See Ind. Code § 25-26-13-25(h). Also, if in
fact Mother was still taking pills from July 2015 in November 2015, that would seem to indicate she was
taking less of the drug than prescribed, which would not seem to be problematic so long as she was not
abusing other drugs, and there is no evidence that she was.
5
DCS attempts to direct this court to websites regarding the ability to falsity drug test results. There was no
evidence whatsoever presented at the fact-finding hearing on this matter, and we will not accept DCS’s
apparent invitation to judicially notice these websites and to improperly supplement the record in this
fashion. See Troyer v. Troyer, 987 N.E.2d 1130, 1138 n.3 (Ind. Ct. App. 2013) (reciting established principle
that judicial notice may not be used on appeal to fill evidentiary gaps in trial court record caused by party’s
failure to present evidence at trial).

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 Conclusion
[28] There is sufficient evidence in the record to support the conclusion that Mother

and Father’s children are CHINS. We affirm.

[29] Affirmed.

Riley, J., and Bailey, J., concur.

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