Pursuant to Ind.Appellate Rule 65(D),                                        Aug 22 2013, 6:01 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any 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:

AMY KAROZOS                                       ROBERT J. HENKE
Greenwood, Indiana                                Indiana Department of Child Services
                                                  Indianapolis, Indiana

                                                  PATRICK M. RHODES
                                                  Indiana Department of Child Services
                                                  Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

IN THE MATTER OF D.S.,                )
CHILD IN NEED OF SERVICES,            )
                                      )
R.J.,                                 )
                                      )
      Appellant-Respondent,           )
                                      )
             vs.                      )                     No. 49A02-1301-JC-26
                                      )
INDIANA DEPARTMENT OF CHILD SERVICES, )
                                      )
      Appellee-Petitioner.            )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Marilyn A. Moores, Judge
                        The Honorable Danielle Gaughan, Magistrate
                             Cause No. 49D09-1209-JC-35418


                                        August 22, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge
                                     STATEMENT OF THE CASE

          R.J. (“Father”) appeals the juvenile court’s adjudication of his child, D.S., as a

child in need of services (“CHINS”).1 Father presents a single issue for our review,

namely, whether the court’s adjudication of D.S. as a CHINS is clearly erroneous. We

affirm.

                              FACTS AND PROCEDURAL HISTORY

          On July 24, 2012, Officer Jonathon Schultz of the Indianapolis Metropolitan

Police Department (“IMPD”) responded to a report of domestic violence at a residence in

the 2800 block of North Denny Street. When he arrived on the scene, he observed D.S.’s

mother, A.S. (“Mother”), with bruising on her face, a bloody mouth, and several missing

teeth. Officer Schultz further observed blood around the kitchen table and chair. Mother

told Officer Schultz that Father, her ex-boyfriend, had attacked her and that, following

the attack, she had lost consciousness.

          When Officer Schultz approached Father, he denied attacking Mother. Officer

Schultz noticed that Father smelled of alcohol and had bloodshot eyes. Officer Schultz

informed Father that he was under arrest, and Father responded by becoming “verbally

combative . . . , using racial slurs and making threats.” Transcript at 19.

          Thereafter, Mother recanted the statements she had made to Officer Schultz,

insisting instead that she had intervened in a fight between Father and Mother’s mother

and she was unsure who had struck her. Mother also insisted that she was drunk at the




          1
              Mother A.S. does not participate in this appeal.
                                                         2
time and could not remember what had happened. As such, the State did not pursue

criminal charges against Father.

       Nonetheless, the Department of Child Services (“DCS”) investigated the report of

domestic violence. Family case manager Derek O’Brien (“FCM O’Brien”) interviewed

Mother, who had moved in with Father, and she informed him that, at the time of the July

24 incident, D.S. “was in the home.” Id. at 33. FCM O’Brien was concerned that

Mother’s revised explanation of the incident “minimized the domestic violence,” which

concerned him because, “[w]hen a parent minimizes domestic violence[,] they [sic] tend

to stay with the offending parent more often . . . and that creates a situation where they

[sic] keep the children in that same environment allowing them to witness domestic

violence.” Id.

       On September 10, the DCS filed its petition alleging D.S. to be a CHINS. In

particular, the petition alleged that Mother and Father

       have failed to provide the child with a safe and appropriate living
       environment free from domestic violence. [Mother and Father] have an
       extensive history of domestic violence, and they were recently involved in a
       physical altercation in the child’s presence. The family previously came to
       the attention of the DCS for a prior incident of domestic violence [in 2008],
       and services were offered to the parents through an Informal Adjustment
       Agreement (IA). Despite previous services offered, the parents continue to
       demonstrate an inability to provide the child with a safe, appropriate home.

Appellant’s App. at 20.

       Following the filing of the CHINS petition, the DCS offered Father numerous

support services. However, he refused all services. Among other rationales, Father

stated that he did not need domestic violence classes. Father also did not avail himself of

scheduled visits with D.S.
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       Following an evidentiary hearing, on October 30, 2012, the court entered its order

in which it adjudicated D.S. as a CHINS. After describing the above-stated facts, the

court found as follows:

             By his own admission, [Father’s] criminal history consists of
       incidents where [Mother] called the police on him alleging domestic
       violence.

             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[s] to supply the child with a safe and appropriate home
       environment free from domestic violence and substance abuse. A domestic
       dispute occurred on July [24], 2012[,] that necessitated police involvement.
       At that time [Mother] told police that [Father] had struck her. She later
       recanted and stated that she was intoxicated and did not recall what
       happened; she just knew somebody hit her. Clearly, the method of conflict
       resolution in the home was inappropriate and involved both [Father] and
       [Mother]. . . .

              The family and the child need care or treatment that they are not
       likely to be provided without the coercive intervention of the court. Both
       parents could benefit from services that would address the domestic
       violence in their relationship . . . .

Id. at 57. The court subsequently entered a disposition order instructing Father, among

other things, to participate in DCS-recommended services. This appeal ensued.

                            DISCUSSION AND DECISION

       Father appeals the juvenile court’s adjudication of D.S. as a CHINS. Indiana Code

Section 31-34-1-1 provides that a child is a child in need of services if, before the child

becomes eighteen years of age: (1) the child’s physical or mental condition is seriously

impaired or seriously endangered as a result of the inability, refusal, or neglect of the

child’s parent, guardian, or custodian to supply the child with necessary food, clothing,

shelter, medical care, education, or supervision; and (2) the child needs care, treatment, or

                                             4
rehabilitation that: (A) the child is not receiving; and (B) is unlikely to be provided or

accepted without the coercive intervention of the court. The DCS has the burden of

proving by a preponderance of the evidence that a child is a CHINS. Ind. Code § 31-34-

12-3; Davis v. Marion Cnty. Dep’t of Child Servs. (In re M.W.), 869 N.E.2d 1267, 1270

(Ind. Ct. App. 2007). When reviewing the sufficiency of the evidence to support a

CHINS adjudication, we consider only the evidence favorable to the judgment and the

reasonable inferences raised by that evidence. In re M.W., 869 N.E.2d at 1270. This

court will not reweigh evidence or judge witnesses’ credibility. Id.

       Moreover, the trial court entered findings of fact and conclusions thereon pursuant

to Indiana Trial Rule 52(A). We may not set aside the findings or judgment unless they

are clearly erroneous. Ind. Trial R. 52(A); Menard, Inc. v. Dage–MTI, Inc., 726 N.E.2d

1206, 1210 (Ind. 2000). In our review, we first consider whether the evidence supports

the factual findings. Menard, 726 N.E.2d at 1210. Second, we consider whether the

findings support the judgment. Id. “Findings are clearly erroneous only when the record

contains no facts to support them either directly or by inference.” Quillen v. Quillen, 671

N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous if it relies on an incorrect

legal standard. Menard, 726 N.E.2d at 1210. We give due regard to the trial court’s

ability to assess the credibility of witnesses. T.R. 52(A). While we defer substantially to

findings of fact, we do not do so to conclusions of law. Menard, 726 N.E.2d at 1210.

We do not reweigh the evidence; rather we consider the evidence most favorable to the

judgment with all reasonable inferences drawn in favor of the judgment. Yoon v. Yoon,

711 N.E.2d 1265, 1268 (Ind. 1999).


                                             5
       On appeal, Father asserts that the DCS did not prove that the child’s physical or

mental condition was seriously endangered.          In support of this contention, Father

maintains that D.S. was not present during the altercation on July 24, that Mother and

Father were no longer in a relationship, and that there was no evidence that D.S. was in

need of care or treatment that he was not otherwise receiving. But each of Father’s

allegations amounts to a request for this court to reweigh the evidence, which we will not

do.

       The facts presented to and relied on by the juvenile court support the court’s

adjudication of D.S. as a CHINS. Specifically, based on the DCS’ evidence, the court

found that: Mother had informed Officer Schultz that Father had attacked her and caused

her injuries; Officer Schultz had observed blood around the kitchen table and chair;

Father was intoxicated and verbally abusive when confronted by Officer Schultz; D.S.

was in the home at the time of the July 24 incident; Mother had later recanted her

explanation of the incident; and Mother and Father were living together at the time the

family case manager interviewed her. The DCS also demonstrated that Mother and

Father had minimized their history of domestic violence and that parents who minimize

their domestic violence increase the risk of having a child observe domestic violence.

These facts thoroughly demonstrate, as the juvenile court found, that “[t]he 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[s] to supply the child with a safe and

appropriate home environment,” and that “[t]he family and the child need care or




                                              6
treatment that they are not likely to be provided without the coercive intervention of the

court.” Appellant’s App. at 57. Thus, we affirm the court’s adjudication.

      Affirmed.

MATHIAS, J., and BROWN, J., concur.




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