MEMORANDUM DECISION                                                  FILED
Pursuant to Ind. Appellate Rule 65(D), this                     May 24 2016, 9:01 am

Memorandum Decision shall not be regarded as                         CLERK
precedent or cited before any court except for the               Indiana Supreme Court
                                                                    Court of Appeals
purpose of establishing the defense of res judicata,                  and Tax Court

collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT S.D.                              ATTORNEYS FOR APPELLEE
Paula M. Sauer                                           Gregory F. Zoeller
Danville, Indiana                                        Attorney General of Indiana
ATTORNEY FOR APPELLANT KE.D.                             Robert J. Henke
                                                         James D. Boyer
Brian J. Johnson                                         Deputy Attorneys General
Danville, Indiana                                        Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of: K.D., a Child                          May 24, 2016
in Need of Services,                                     Court of Appeals Case No.
                                                         32A05-1510-JC-1724
S.D. (Mother) and Ke.D.
                                                         Appeal from the Hendricks Superior
(Father),                                                Court
Appellants-Respondents,                                  The Honorable Karen M. Love,
                                                         Judge
        v.
                                                         Cause No. 32D03-1505-JC-40

Indiana Department of Child
Services,
Appellee-Petitioner.




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016      Page 1 of 28
                                          Case Summary
[1]   S.D. (“Mother”) and Ke.D. (“Father”) (collectively, “the Parents”) appeal from

      the juvenile court’s adjudication that K.D. (“Child”) is a child in need of

      services (“CHINS”). Mother, Father, Child, and Child’s three older siblings—

      Ke’T.D., Ke’S.D., and H.D.—live together in Avon. In April of 2015, the

      Hendricks County Department of Child Services (“DCS”) received a report that

      Father had physically abused Child, then six years old, in the home Father and

      Mother shared with Child and their other three children (“the Home”).


[2]   DCS petitioned the juvenile court to adjudicate Child a CHINS. During the

      CHINS proceeding, Father admitted that he had hit Child twice in the head as

      punishment for missing his school bus but expressed no remorse and denied

      that he had done anything wrong. Mother also indicated that she believed

      Father had done nothing wrong. The juvenile court adjudicated Child a

      CHINS, ordered that Child remain placed with Parents, and issued

      participation orders for both Parents. Father and Mother both contend that

      there is insufficient evidence to sustain a finding that Child is a CHINS.

      Mother also contends that the juvenile court abused its discretion in ordering

      her to fulfill certain requirements. Because we conclude that the juvenile court

      did not abuse its discretion, we affirm.



                            Facts and Procedural History


      Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 2 of 28
[3]   On April 29, 2015, DCS became aware of a report that Child, born on August

      6, 2008, had a cut on his face and scratches, which Child claimed were caused

      by Father throwing him against a wall. Family Case Manager Veronica Fritsch

      (“FCM Fritsch”) interviewed Child at school and noticed that he also had a

      bump on the back of his head. FCM Fritsch, accompanied by a police officer,

      went to the Home. Father admitted that he had spanked Child on his “bottom”

      and indicated that the scratch on Child’s face could have been caused by his

      ring. Tr. p. 41. During the visit, Father was “[h]ostile” and “[h]e would puff

      up his chest [and] get very loud.” Tr. p. 42.


[4]   On April 30, 2015, Child was examined by a doctor and told the doctor that

      Father had hit him on the back of the head. FCM Fritsch also visited the Home

      and spoke with Mother that day. While Father was in the home, Mother did

      not provide much information, looked down frequently and “would not fully

      open up.” Tr. p. 44. Mother was more willing to talk when Father left, but was

      not very willing to speak about domestic violence.


[5]   On May 11, 2015, DCS filed a petition alleging Child to be a CHINS due to

      Father’s physical abuse. By the end of May of 2015, FCM Kristen Miller had

      taken over the case, and visited the Home with Guardian Ad Litem Suzanne

      Conger (“GAL Conger”) on June 12, 2015. Father answered the door and,

      after FCM Miller and GAL Conger interviewed the children, took them on a

      tour of the Home with Mother. As FCM Miller and GAL Conger were leaving

      the Home, Father became “intimidating” and “hostile[,]”asked FCM Miller

      why she had lied in court, and “puffed himself up.” Tr. pp. 98, 117.

      Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 3 of 28
[6]   On July 1, 2015, the juvenile court held an evidentiary hearing. On July 30, the

      juvenile court issued its order adjudicating Child to be a CHINS, which order

      provides in part as follows:


              12.     Steven Patton is a resident physician at Community
                      Health Network. On 4-30-15 he examined [Child] at an
                      outpatient center in Speedway. Dr. Patton observed an
                      abrasion under his left eye and a contusion on the left side
                      of his head and another contusion on the right side of his
                      head. On the left side the raised bruised area was 2 by 3
                      centimeters and on the right side the raised bruise was 3 by
                      4 centimeters.
              13.     Mother was with [Child] during the exam. Dr. Patton
                      asked Mother how [Child] got the injuries and Mother did
                      not respond. The doctor then asked [Child] how he got
                      the injuries. [Child] initially said he was lifting weights
                      and he fell and hit his head on some weights, then [Child]
                      said his Father hit him in the back of the head for
                      discipline for missing the bus. Based on the contusion and
                      reason given the doctor decided to do an x-ray to be sure
                      [Child] did not have a skull fracture. The x-ray was within
                      normal limits. Dr. Patton was concerned about a possible
                      brain contusion or brain bruise so he explained to Mother
                      that she needed to watch [Child] for any signs of lethargy,
                      confusion, headache, or muscle weakness and if she
                      observed any signs she needed to call the clinic and let
                      them know.
              14.     A contusion is a bruise with swelling.
              15.     During Dr. Patton’s exam [Child] did tell the doctor that
                      the back of his head hurt.
              16.     Dr. Patton did exam the rest of [Child]’s body and did not
                      observe anything else that was abnormal.



      Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 4 of 28
        17.     Dr. Patton noted that it is unusual for a parent of a six year
                old not to respond when asked how their child was
                injured.
        18.     Dr. Patton estimated that [Child]’s injuries would be
                visible for 3-4 weeks.
        19.     When [Child] told Dr. Patton that Father hit him in the
                back of the head [Child] looked at his Mother and said
                “Mom knows what’s going on”. Mother just sat there
                with a sad look on her face.
        20.     The Court finds Dr. Patton credible and helpful in
                explaining [Child]’s injuries.
        21.     Dr. James Williams is employed at Community Westview
                residency clinic in Speedway as a preceptor faculty
                member. Dr. Williams has been in family practice for
                about 40 years. He was supervising Dr. Patton during the
                exam of [Child] on 5-1-15. Dr. Williams also observed
                [Child]’s contusion or bruising behind the ears. Court
                finds Dr. Williams credible and his testimony is consistent
                with the pictures Ms. Fritsch took of [Child]. The
                contusions on the back of [Child]’s head would be
                consistent with a blow to the back of the head or throwing
                a child into the wall or bed or falling on a weight.
        22.     Dr. Williams was present during the entire examination.
                Dr. Williams observed that [Child]’s injuries were
                consistent with [Child]’s statement that his father hit him.
                Dr. Williams explained that [Child]’s fall and hitting his
                head on the weight happened during the incident when
                Father hit [Child] in the back of the head for missing the
                bus.
        23.     [Child] was alert and oriented during the exam. Mother
                did not offer the doctors any explanation for [Child]’s
                injuries. She told them she was at work. She did tell them
                that her father lived with them and her father told her he
                heard yelling and screaming at the time of the injuries.


Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 5 of 28
        25.     Angela Hartman is employed at Community Westview
                Clinic in Speedway…. On 5-1-15 she met with [Child]
                and Mother. Ms. Hartman asked Mother if she felt safe.
                Mother would not look at Ms. Hartman and tears welled
                up in her eyes. Ms. Hartman explained to Mother that it
                was her responsibility to keep herself safe and to keep her
                children safe. Mother just looked at Ms. Hartman with
                tears welling up in her eyes. Ms. Hartman was very
                concerned. Ms. Hartman has 30 years experience and is
                on the behavioral faculty at Community Westview
                Hospital, Speedway Family Practice Clinic.
                Mother did not take [Child] to the doctor on her own
                volition. The clinic knew before the exam that [Child]’s
                injuries were a CHINS case.
        26.     Kristin Miller is a family case manager for DCS. She took
                over the case from Ms. Fritsch in late May early June
                2015. Ms. Miller obtained [Child]’s medical records
                which were admitted as Exhibit 3.
        27.     Ms. Hartman’s note contained in Exhibit 3 states:
                “Patient seen in conjunction with his mother, Dr. Patton,
                pre-ceptor, Dr. Williams, and myself on 4/30/15. Patient
                is a 6 year old African American male who was seated on
                the exam table dressed in a patient’s gown. He was busy
                interacting with his mother, who was seated at the end of
                the table. When asked about his injuries, he was rather
                elusive, looking at his mother, and asking her to answer.
                He had already shared the information below with Drs.
                Patton, and Williams, as well as, the MA, Carla. He
                engaged readily in answering my question about how he
                had gotten the raised bump behind his ear, and the
                soreness of the area behind his other ear, to which he
                responded that his ““daddy had hit me in the head.””. [sic
                passim] He said that ““my head hit the wall, and I hit a
                weight, near the weight bench.”” When asked about
                whether he has seen his dad hit his mom, he looked at her,

Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 6 of 28
                and asked her to answer, ““because she knows””. She
                became quiet, tears welled up in her eyes, but said nothing,
                other than assuring her son with ““I am okay””, and …
                ““I am all right””. Reviewed with her the need to get
                protection for herself, and/or her children and that it is her
                responsibility to protect them from harm. She admitted
                that she too, uses spanking as a form of discipline. She
                shared that she was not aware of this current situation,
                because she had been at work.
                He went on to say to his mother that she ““is always
                stressed””, “you know you are, mommy”. She asked him
                why he had not told her about being hit by his daddy?
                And he said that ““I know that you are stressed””. She
                said nothing, looking at him the whole time. When asked
                by myself if she felt safe in the relationship, she looked
                away, and did not answer. Thanked her for bringing [him]
                in to meet with the doctors, who remained in the room,
                and encouraged her to continue to work with DCS, and to
                keep herself, and her children safe from harm. She signed
                a medical release for us to share with DCS, and took her
                son to get an x-ray of his skull, at the x-ray department
                across the hall.”
        28.     Dr. Williams[’s] note contained in Exhibit 3 states:
                “This patient was seen and examined, and discussed with
                the resident physician. See the resident note for details. I
                was physically present during key portions of the
                encounter and I actively participated in the medical
                decision making. Key History: Alleged physical abuse by
                child’s father with an area of abrasions to the right side of
                his face from hitting/slapping, and an abrasion to the post
                auricular area of the head on the left side, and an area of a
                large contusion with swelling on the right posterior
                auricular area of the head in the area of the right Mastoid
                sinus. This measures approximately 4 cms X 3.5 cms.



Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 7 of 28
                Key Exam: Dr. Patton and I thoroughly examined 6 y/o
                male child, [Child], and found him to be very intelligent
                and alert. He was seen with his mother in the room. She
                related that she was not home at the time of the alleged
                abuse. His exam was unremarkable except for the above
                mentioned abrasions and contusion of his head. He had
                no recent injuries of his extremities and no abrasions or
                contusions of his buttocks or of the penis/scrotal areas.
                He was very alert and for a 6 y/o child answered questions
                appropriately. He stated that his father had hit him on his
                face and had thrown him either down on his bed or into
                the wall. His posterior auricular head injuries he initially
                stated were a result of this but then related that the left
                sided posterior auricular abrasion was from attempting to
                lift weights although he and also his mother could not
                explain how this could occur. Assessment: 1. Physical
                Abuse by child’s biological father with [a]brasions and
                contusions as described above.
                Plan: 1. A thorough physical exam was done and
                documented by Dr. Patton and myself. 2. Social Services
                was made aware and discussed the case thoroughly with
                both the child and the child’s mother. 3. Pictures of the
                abrasions and the swollen area with a large contusion were
                taken. 4. A skull x-ray was ordered and done to rule out
                any bony injury to the posterior or facial areas of the head.
                5. Social Services will report findings to Child Protection
                Agency.”
        29.     Dr. Patton’s note contained in Exhibit 3 states:
                “This event happened with the biological father, “they all
                live in the same house” CPS became involved due to the
                school having a concern. A teacher asked him what
                happened to his face he told the teacher his father scarred
                his face after discipline. They took the child to the office
                and asked him what happened and they also spoke to one
                of his siblings that also go to school. She has a meeting
                with mother and father basically the plan was to document
Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 8 of 28
                proper discipline and also set up a safety plan for her
                (abusive relationship with child’s father)
                PT states he was in school and people were concerned
                about his face because someone “hit him and slapped
                him” When asked where he was hit he points at the left
                side of his chin. Pt goes on to mention he was also
                ““thrown”” onto the bed but his ““daddy told him it
                didn’t happen”” Pt states he was being punished because
                he missed the school bus. I asked pt what normally
                happens when he’s being punished and he replied that he
                [is] normally punished by getting hit with hands: belts, or
                cords. Pt goes on to tell me that he has bumps to the back
                of his head. When initially asked how did the bumps
                occur he says he fell on some weights when he tried to lift
                them and fell over (later on in the conversation patient
                mentions that his father hit on the side of the head and
                pointed toward the back side of his head on the right side;
                he then tells me that his father told him that he fell on
                some weights but ““its not the way my story is””)
                When asked if the patient has been touched in any
                inappropriate manner “genitals, anus, any area of the body
                in … particular that would make him feel uncomfortable)
                or required to touch anyone else he said no. Pt lives in a 7
                member home (3 siblings 13, 11, 9), grandfather, mother,
                and father.
                ….pt states that his face and the back of his head hurts.”
        30.     Ms. Miller had difficulty setting up a home visit. In late
                May the attorneys arranged a visit and [Father] didn’t
                want to do the home visit. Mother left a voicemail
                cancelling the visit. The attorneys got involved and Ms.
                Miller went to the home on a Friday afternoon. Mother
                was home but Father was not. Mother told Ms. Miller that
                the visit was cancelled. Mother did not want to do the visit
                without Father present. Eventually Mother allowed Ms.



Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 9 of 28
                Miller into the entryway of the home and to speak with the
                children in the entryway.
        31.     On 6-12-15 Mother arranged for Ms. Miller and GAL,
                Suzanne Conger, to visit the home and see the children.
                When Ms. Miller and Ms. Conger arrived Mother was not
                home. Father was home with the children.
        32.     Suzanne Conger has practiced law for thirty years and
                served as guardian ad litem for over 1,000 children. For
                three years Ms. Conger was head of custody advocate and
                guardian ad litem program in Charlotte, North Carolina.
                The Court finds Ms. Conger an experienced, qualified,
                and credible guardian ad litem.
        33.     Ms. Miller is concerned that there is domestic violence
                within the relationship between Father and Mother and a
                concern that Mother is not able to protect the children
                from domestic violence.
        34.     When Ms. Miller and Ms. Conger arrived on 6-12-15
                Father was present with the four children. The children
                were lined up according to their ages on a loveseat. Father
                told the children to be respectful and knock on the door
                when they were finished and Father went outside the
                house. Ms. Conger then introduced herself to the children
                and she asked the three older children to give them some
                time to talk with [Child] alone. As they talked with
                [Child] Ms. Miller noticed a cell phone on the coffee table
                and mentioned it and [Child] yelled for his older brother to
                come and get the phone. [Ke’S.D.] got the phone and did
                a special knock on the door, one, two, three, four and
                Father opened the door and [Ke’S.D.] gave the phone to
                Father. When Father saw all four children were not still
                lined up at the door Father told the kids to “get out here”.
                It was a rainy day with thunder but the older kids got their
                shoes on and went outside as Father ordered.
                Ms. Conger and Ms. Miller continued their interview of
                [Child]. Ms. Conger observed that [Child] was confused,

Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 10 of 28
                scared and very careful with the way he said things. After
                they finished talking with [Child], [Child] went to the door
                and did the special knock and Father opened the door for
                him. Father told [Child] to get his shoes on and “get out
                here”. Father grabbed [Child] by the back of his neck and
                ushered him out and [Child] cowered down. Ms. Conger
                demonstrated to the Court Father’s grabbing of [Child]’s
                neck and [Child]’s cowering response. The Court notes
                Father’s grabbing [Child] by the neck and ushering him
                out was unnecessary as [Child] was complying with the
                instructions Father gave him in front of Ms. Miller and
                Ms. Conger. The other children were outside with Father
                and could see Father grab [Child] by the neck and
                [Child]’s fearful response. The court finds this was a
                brazen attempt by Father to intimidate [Child], the other
                children, Ms. Miller and Ms. Conger. Father’s actions
                were also consistent with his attempts to intimidate Ms.
                Fritsch during her interview of Father and his attempt to
                intimidate Ms. Miller later on 6-12-15. [Ke’T.D.],
                [Ke’S.D.] and [H.D.] were each interviewed separately
                and each did the special knock when they were finished.
        35.     After Ms. Miller and Ms. Conger interviewed all the
                children they were getting ready to leave and Father came
                back inside, got hostile, pointed at Ms. Miller and accused
                her of lying in court. Ms. Conger was concerned because
                Father was blocking her way out the door. Mother
                scooted around Father and offered to take Ms. Miller and
                Ms. Conger on a tour of the home. Mother then led Ms.
                Miller and Ms. Conger through the home and Father
                followed them. When they were upstairs Ms. Conger
                commented on their nice back yard and Father said to
                “stop that chatter”. Mother immediately obeyed him and
                walked them through the rest of the house. Father did
                refuse for Ms. Conger and Ms. Miller to see the basement
                and they left. After they left Father called Ms. Miller and
                offered to let them see the basement. Neither Ms. Miller

Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 11 of 28
                nor Ms. Conger felt it was a good situation to return to the
                home on 6-12-15 given Father’s hostile demeanor.
        36.     The children have access to the basement and hang out
                down there. DCS needed to see the basement. Father
                used intimidation to control what Ms. Miller and Ms.
                Conger saw on 6-12-15 and what they heard from the
                children and Mother.
        37.     The Court finds Ms. Miller and Ms. Conger credible.
        38.     Father is the pastor of the Martindale Church of Christ.
                Cedric Brown is a deacon in that church and sees the …
                family regularly at church and church functions. Mr.
                Brown has also been to the [Home] twice during the past
                eight years. Mr. Brown has not personally observed any
                inappropriate behavior by anyone in the … family. Mr.
                Brown explained that their church believes that discipline
                of children is an essential requirement of parents and that
                physical discipline can be appropriate. Mr. Brown did
                agree that physical discipline could cross the line and be
                inappropriate if the parent was beating up the child or
                throwing a six year old child into the wall.
        39.     Father testified on 7-l-15. Father stated he has primary
                responsibility for bringing up his son and total
                responsibility for his education. Father admitted that he
                intentionally slapped [Child] in the face on or about 4-28-
                15 or 4-29-15. Father demonstrated how he slapped
                [Child] and the Court heard the sound of his strike. Father
                admitted that he slapped [Child] once and [Child] was still
                standing so Father slapped him again and [Child] fell.
                Father weighs 325 pounds and is over six feet tall. [Child]
                weighed 61 pounds when he was examined by the doctors.
                Father is right handed and he was wearing a ring which
                was the same ring he wore in court. The ring appeared to
                be raised on the top similar to a college or sports ring.
                When Father demonstrated how he slapped [Child] the
                Court could hear the sound of Father’s smack. Father

Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 12 of 28
                admitted that he wanted [Child] to feel the smack and he
                did not smack him on the bottom because [Child]’s clothes
                would cushion his blow. Father’s ring caused the cut on
                [Child]’s face. For a right handed man to do that Father’s
                strike must have been more of a closed fist and not open
                handed.
        41.     Father explained that he wakes the children up for school
                and they “police each other”. Father stated that [H.D.]
                and [Child] leave right after [Ke’S.D.] in the mornings.
                Father does not remind the children that they need to go
                out for the bus. Father stated that waking them up and
                telling them one time to get ready for school is sufficient.
        42.     [Child] missed the bus on 4-28 or 4-29 the date Father
                injured [Child].
        43.     The Court does not believe Father’s testimony that he
                progressively disciplines the children. When Father speaks
                he expects his children and Mother to obey him
                immediately. The Court finds Father is not credible.
        44.     Father did not tell Mother about his “discipline” of [Child]
                on 4-28 or 4-29.
        45.     The Court finds Father acted unreasonably on 4-28 or 4-29
                when he smacked [Child] in the head twice with enough
                force to knock [Child] down—simply because [Child]
                missed the school bus that morning.
        46.     Missing the school bus is an inconvenient time
                management problem not direct disobedience. It is not
                unusual for a six year old to need reminding that he needs
                to be at the bus stop when the bus comes. [Child] is in the
                first grade. [Child] is the youngest child. He is unlikely to
                be able to influence the older children to miss the bus.
                Given his age [Child] would likely benefit from Father
                teaching him how to manage time and a reminder near the
                time the bus arrives.



Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 13 of 28
                It is unreasonable for a 324 pound man to deliberately hit
                a six year old child weighing 61 pounds in the head twice.
                [Child] was still standing from the first blow so Father hit
                him again until [Child] fell. Father’s testimony about the
                nature of his blows is inconsistent with [Child]’s injuries as
                documented by the pictures and medical records.
                Punching a child in the head is dangerous.
        47.     Children who suffer physical abuse or witness domestic
                abuse between their parents often keep it a secret and do
                not talk with others about the abuse. The Court believes it
                is highly probable that Mother and the other children are
                also victims of Father’s physical abuse but DCS did not
                prove it by a preponderance of the evidence.
        CONCLUSIONS OF LAW
                                     *       *        *       *
        11.     DCS has proved by a preponderance of the evidence that
                [Child] is a child in need of services as defined in IC 31-34-
                1-1 in that his physical or his mental condition is seriously
                impaired or seriously endangered as a result of Father’s
                use of excessive and unreasonable physical discipline on or
                about 4-28-15 and Father and Mother’s refusal to
                recognize that Father’s use of physical discipline was
                excessive and unreasonable on that date. [Child] needs
                parental supervision, guidance and correcting that is
                reasonable and safe. Without [the] Court’s intervention
                [Child] will continue to be subject to unreasonable
                physical discipline from Father. Children who suffer
                unreasonable physical discipline suffer emotionally.
                [Child]’s doctor exam demonstrates that [Child] is very
                concerned for his Mother to the point he did not tell her
                what Father did to him. [Child] told his GAL that he was
                confused. Intimidating a child as Father has done causes a
                child to suffer emotionally. [Child] needs counseling
                which he is unlikely to receive without Court intervention.



Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 14 of 28
        12.     A child is a CHINS when he is endangered by parental
                action or inaction.
        13.     In this case it is Father’s actions and Mother’s failure to
                protect [Child] that causes the court to find [Child] is a
                CHINS.
        14.     Much of the evidence is circumstantial but the cumulative
                effect of the evidence and concern of the experienced
                professionals causes the court to be very concerned for
                [Child]’s safety without court intervention.
                Father needs help to recognize appropriate discipline
                limits and Mother needs help to recognize appropriate
                discipline limits and enforce those limits and protect
                [Child] from excessive unreasonable physical discipline.
                Based on Father’s testimony and his demeanor the Court
                concludes Father does not believe he did anything wrong
                at any time.
        15.     IC Code 31-34-1-15 specifically states:
                (1) “Limit the right of a parent, guardian, or custodian of a
                child to use reasonable corporal punishment when
                disciplining the child.
                (2) Limit the lawful practice or teaching of religious
                beliefs.”
        16.     A CHINS case is a civil case not criminal. In Willis v. State
                888 N.E.2d 177 (2008) the Indiana Supreme Court
                recognized the right of parents to direct the upbringing and
                education of their children including the use of reasonable
                or moderate physical force to control behavior.
        17.     In Willis Justice Rucker explained that Indiana adopted
                the Restatement of Law (Second) Torts and Justice Rucker
                outlined factors to be considered in determining the
                reasonableness of punishment. Justice Rucker stated:
                “The Restatement provides, “A parent is privileged to
                apply such reasonable force or to impose such reasonable
                confinement upon his [or her] child as he [or she]
Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 15 of 28
                reasonably believes to be necessary for its proper control,
                training, or education.”” Restatement of the Law
                (Second) Torts, § 147(1) (1965). We adopt the
                Restatement View. Not only is it entirely consistent with
                the law in this jurisdiction, but also it provides guidance
                on the factors that may be considered in determining the
                reasonableness of punishment. It reads:
                         In determining whether force or confinement is
                         reasonable for the control, training, or education of
                         a child, the following factors are to be considered:
                         (a) whether the actor is a parent;
                         (b) the age, sex, and physical and mental condition
                         of the child;
                         (c) the nature of his offense and his apparent
                         motive;
                         (d) the influence of his example upon other children
                         of the same family or group;
                         (e) whether the force or confinement is reasonably
                         necessary and appropriate to compel obedience to a
                         proper command;
                         (f) whether it is disproportionate to the offense,
                         unnecessarily degrading, or likely to cause Serious
                         or permanent harm.
        Restatement, supra, § 150. We hasten to add that this list is not
        exhaustive. There may be other factors unique to a particular
        case that should be taken into consideration. And obviously, not
        all of the listed factors may be relevant or applicable in every
        case. But in either event they should be balanced against each
        other, giving appropriate weight as the circumstances dictate, in
        determining whether the force is reasonable.”
        Therefore, the Court finds that [Child] is a child in need of
        services as alleged in the petition.
Father’s App. pp. 37-47; 49-51.

Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 16 of 28
[7]   On September 23, 2015, the juvenile court issued dispositional and parental

      participation orders. (Mother’s App. 77-81). The juvenile court ordered

      Parents, inter alia, to (1) complete parenting, domestic violence, mental health,

      and psychological assessments and follow resulting recommendations; (2)

      participate in home-based and family counseling; (3) contact their FCM weekly;

      (4) notify their FCM of any changes in household or contact information and of

      any arrests or criminal charges within five days; (5) allow DCS and GAL

      unannounced visits; (5) cease physical discipline of Child; (6) obtain DCS

      approval of Child’s caregivers; (7) meet their own and Child’s medical and

      mental health needs; and (8) reimburse DCS for services that benefit Child.

      (Mother’s App. 73-75). In addition, Father was ordered to participate in the

      Father Engagement program and follow all recommendations thereof.

      (Mother’s App. 75).


[8]   Both Parents contend that there is insufficient evidence to sustain the juvenile

      court’s adjudication that Child is a CHINS. Mother also contends that the

      juvenile court abused its discretion in ordering Mother to undergo certain

      evaluations and satisfy requirements allegedly unrelated to the CHINS

      adjudication.



                                 Discussion and Decision
[9]   With respect to CHINS determinations, the Indiana Supreme Court has stated

      the following:



      Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 17 of 28
               [a] CHINS proceeding is a civil action; thus, “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). We neither reweigh the evidence nor judge
               the credibility of the witnesses. Egly v. Blackford County Dep’t of
               Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We consider
               only the evidence that supports the [juvenile] court’s decision and
               reasonable inferences drawn therefrom. Id. We reverse only
               upon a showing that the decision of the [juvenile] court was
               clearly erroneous. Id.
               …
               There are three elements DCS must prove for a juvenile court to
               adjudicate a child a CHINS. DCS must first prove the child is
               under the age of eighteen; DCS must prove one of eleven
               different statutory circumstances exist that would make the child
               a CHINS; and finally, in all cases, DCS must prove the child
               needs care, treatment, or rehabilitation that he or she is not
               receiving and that he or she is unlikely to be provided or accepted
               without the coercive intervention of the court. In re N.E., 919
               N.E.2d at 105.
       In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012) (footnote omitted).


[10]   Indiana Code section 31-34-1-1, on which the juvenile court based its

       disposition, provides that a child is a CHINS before the child becomes eighteen

       years of age 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
               (2) the child needs care, treatment, or rehabilitation that:
                   (A) the child is not receiving; and

       Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 18 of 28
                   (B) is unlikely to be provided or accepted without the coercive
                   intervention of the court.
[11]   As the Indiana Supreme Court has observed,

               Juvenile law is constructed upon the foundation of the State’s
               parens patriae power, rather than the adversarial nature of corpus
               juris. Kent v. United States, 383 U.S. 541, 554, 86 S. Ct. 1045, 16
               L. Ed. 2d 84 (1966). Indeed, juvenile court jurisdiction “is rooted
               in social welfare philosophy rather than in the corpus juris.” Id.
               The purpose of the CHINS adjudication is to “protect the
               children, not punish parents.” In re N.E., [919 N.E.2d 102, 106
               (Ind. 2010)]. The process of the CHINS proceeding focuses on
               “the best interests of the child, rather than guilt or innocence as
               in a criminal proceeding.” Id.
       In re K.D., 962 N.E.2d at 1255.


[12]   Mother and Father argue that the juvenile court’s finding that section 31-34-1-1

       was satisfied constitutes an abuse of discretion because the record did not

       contain sufficient evidence that Child’s physical or mental condition was

       seriously impaired or seriously endangered. DCS, however, was not required

       to establish that Child had already been harmed. “The CHINS statute … does

       not require that a court wait until a tragedy occurs to intervene.” In re A.H., 913

       N.E.2d 303, 306 (Ind. Ct. App. 2009) (citing Roark v. Roark, 551 N.E.2d 865,

       872 (Ind. Ct. App. 1990)). “Rather, a child is a CHINS when he or she is

       endangered by parental action or inaction.” Id. With this in mind, we

       conclude that the record contains ample evidence to support the juvenile court’s

       disposition.




       Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 19 of 28
[13]   Father argues first that his discipline of Child was reasonable. Father relies on

       the Indiana Supreme Court’s decision in Willis v. State, 888 N.E.2d 177 (Ind.

       2008), which addressed the scope of the parental privilege to discipline as a

       defense to criminal battery. Although a criminal case, we believe, as did the

       juvenile court, that the factors considered by the Willis court in evaluating

       whether punishment is reasonable are helpful here:

               In determining whether force or confinement is reasonable for
               the control, training, or education of a child, the following factors
               are to be considered:
                       (a) whether the actor is a parent;
                       (b) the age, sex, and physical and mental condition of the
                       child;
                       (c) the nature of his offense and his apparent motive;
                       (d) the influence of his example upon other children of the
                       same family or group;
                       (e) whether the force or confinement is reasonably
                       necessary and appropriate to compel obedience to a proper
                       command;
                       (f) whether it is disproportionate to the offense,
                       unnecessarily degrading, or likely to cause serious or
                       permanent harm.
       Id. at 182 (citation omitted).
[14]   Father’s status as Child’s parent confers upon him greater latitude to punish

       Child than other adults would have. Although all indications are that Child is

       generally healthy, Child was only six years old and weighed sixty-one pounds

       when examined after the incident that gave rise to this CHINS proceeding. In

       contrast, Father weighed over 300 pounds and stands over six feet tall. Child’s


       Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 20 of 28
       offense was missing the school bus, and there is no indication that he was

       motivated by any desire to wilfully misbehave. As for the possible effect of

       Father’s discipline of Child on the other children, there is no indication that any

       of Child’s siblings had problems with missing the school bus or were present

       when Father struck Child. All in all, the first four Willis factors would seem to

       weigh only slightly against Father’s discipline being reasonable, mainly due to

       the lack of any evidence of willful disobedience on Child’s part.


[15]   The last two factors, however, weigh heavily against any conclusion that

       Father’s actions were reasonable. Father admitted to striking Child twice in the

       head on or about April 29, 2015, and the juvenile court found that, based on the

       physical evidence, Father likely struck him with a closed fist. This level of force

       is disproportionate to Child’s offense, especially given the extremely large size

       difference between Father and Child. It seems to us that any number of less-

       forceful options should have been tried before the one Father chose. 1

       Moreover, striking Child in the head with enough force to knock him off of his

       feet seems likely to cause serious harm. Even if the blows themselves did not

       cause serious harm, a fall easily could have. Our consideration of the Willis

       factors leads us to the conclusion that Father’s use of force on Child was

       unreasonable.




       1
         Father testified that he practiced progressive discipline and that less extreme options had failed to correct
       Child’s behavior with respect to missing the school bus, but the juvenile court specifically found this
       testimony to be incredible.

       Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016                 Page 21 of 28
[16]   Mother and Father also both argue that the incident was isolated, even if

       Father’s actions were unreasonable. The record and the juvenile court’s

       findings seriously undercut this argument. The record indicates a history of

       violence between Father and Mother and previous DCS involvement related to

       substantiated reports of abuse of another child. In 2003, Father was arrested

       and charged with breaking and entering Mother’s apartment and domestic

       violence against her. Mother has been arrested and charged with battery of

       Father. In 2006 and 2008, DCS became involved due to allegations that

       Mother had inappropriately disciplined one of Child’s older siblings.


[17]   Moreover, there is no indication that either Father or Mother feels that Father

       did anything wrong. Father has shown no remorse for the incident, testifying

       that physical discipline is part of his faith and that his discipline of Child on the

       occasion in question was “appropriate[.]” Tr. p. 136. Mother agreed with

       Father’s assessment, verifying that she saw “nothing wrong” with Father

       striking Child. Tr. p. 204. Parents’ failure to recognize the unreasonableness of

       Father’s actions makes it likely that similar situations will arise in the future.

       The history of violence in Child’s family, along with Parents’ failure to

       recognize that Father did anything wrong, undercut any notion that the incident in

       question was isolated. DCS produced sufficient evidence to sustain a finding that

       Child’s physical or mental condition is seriously impaired or seriously endangered.




       Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 22 of 28
        II. Whether the Juvenile Court Abused its Discretion in
           Ordering Mother to Participate in Certain Services
[18]   Mother contends that the juvenile court abused its discretion in ordering her to

       (A) undergo psychological and mental health evaluations and comply with

       resulting recommendations; (B) undergo a domestic violence evaluation; (C)

       maintain suitable housing; not permit possession or use of illegal substances in

       the Home; maintain a legal and stable source of income; see to it that Child is

       properly clothed, fed, supervised, and enrolled in school; (D) meet her own and

       Child’s medical and mental health needs; (E) refrain from using any form of

       physical discipline; and (F) reimburse DCS for services to benefit the Child.


                   A. Psychological and Mental Health Evaluations
[19]   Mother argues that there is no evidence to support the juvenile court’s order

       that she undergo psychological or mental health evaluations. The record

       contains evidence, however, that Mother is subject to high levels of stress,

       which may be causing atypical behavior and affecting her mental health. When

       Dr. Patton asked Mother what happened to Child, Mother did not respond at

       all, which Dr. Williams indicated was not typical. Moreover, the hospital

       social worker observed that Mother avoided eye contact, was unresponsive, and

       became tearful when asked about safety in her home. Parents’ history and

       Mother’s demeanor indicate that her situation might well be affecting her

       mental health. The juvenile court did not abuse its discretion in ordering

       Mother to submit to mental health evaluations.



       Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 23 of 28
                              B. Domestic Violence Evaluations
[20]   Mother argues that because there were no substantiated instances of domestic

       violence between Parents arising from the instant CHINS investigation, the

       juvenile court abused its discretion in ordering her to undergo a domestic

       violence evaluation. When first interviewed about the alleged abuse of Child,

       however, Mother would not deny the existence of domestic violence in the

       Home. Also, when Child was asked about whether he had seen Father hit

       Mother, he looked at Mother, and asked her to answer “because she knows[.]”

       State’s Ex. 3 p. 1. At this, Mother became quiet, tears welled up in her eyes,

       and she assured Child that “I am okay” and “I am all right[.]” State’s Ex. 3 p.

       1. When Dr. Patton asked Mother if she felt safe in the relationship, she looked

       away and did not respond. The record also indicates that Mother was aware of

       violence involving the children. When Child told Dr. Patton that Father hit

       him in the back of the head, Child looked at his Mother and said “you know

       what’s going on or mom knows[.]” Tr. p. 69. Mother did not verbally respond

       to Child’s statement but instead “looked sad.” Tr. p. 69.


[21]   Moreover, Mother and Father both acknowledge that police have been involved

       with their family in the past due to allegations of domestic violence. Mother

       and Father have both been arrested and charged with domestic violence

       allegedly perpetrated on the other. Finally, this case represents the third time

       that DCS has been involved with the family, the previous two cases involving

       substantiated abuse of one of Child’s siblings. Given the history of domestic



       Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 24 of 28
       violence in the family, the juvenile court did not abuse its discretion in this

       regard.


       C. Maintain Suitable Housing; Not Permit Possession or Use of
        Illegal Substances in the Home; Maintain a Legal and Stable
       Source of Income; See to it that Child is Properly Clothed, Fed,
                     Supervised, and Enrolled in School
[22]   Mother characterizes the above-listed requirements as boilerplate and argues

       that they should therefore be eliminated. Boilerplate or not, we see nothing

       particularly controversial about the requirements at issue, many of which the

       law already requires of Mother. Taken together, the challenged terms require

       nothing more of Mother than that she remain a fit parent who has the means to

       safely care for Child and does so.


                           D. Meet Mother’s and Child’s Medical
                                and Mental Health Needs
[23]   Mother argues that the order that she meets Child’s medical and mental health

       needs represents an invasion into her constitutionally-protected liberty interest

       in remaining free of unwarranted intrusions into the mind and body. “[O]ur

       Supreme Court has recognized that competent adults are entitled to make

       informed decisions about their medical care and that of their children.” In re

       A.M.-K., 983 N.E.2d 210, 216 (Ind. Ct. App. 2013).


[24]   Mother relies on our decision in A.M.-K. In A.M.-K., the appellant argued the

       juvenile court’s order that she take all medications as prescribed infringed upon

       right to direct her own medical treatment. Id. at 216. We agreed, noting that

       Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 25 of 28
       the appellant presented evidence that the medication at issue had serious side

       effects, interfered with her heart condition, and clashed with her religious

       beliefs. Id. at 217. Mother has presented no such evidence here. There is no

       evidence that Mother has been directed by a medical professional to do

       anything in particular for Child, much less something to which she has raised

       any particular objection. Mother’s reliance on A.M.-K. is unavailing, and she

       has failed to establish an abuse of discretion in this regard.


                             E. Refrain from Physical Discipline
[25]   We recognize that “parents do have the right to use reasonable corporal

       punishment to discipline their children.” Lang v. Starke Cty. Office of Family &

       Children, 861 N.E.2d 366, 378 (Ind. Ct. App. 2007). “However, just as a

       parent’s right to raise his or her children is not absolute, we find no authority

       for the proposition that a parent’s right to use reasonable corporal punishment

       is absolute and cannot in some instances be subordinated to a child’s interests.”

       Id. We conclude that this case is one of those instances.


[26]   Here, we have already concluded that the discipline that gave rise to this

       CHINS proceeding was unreasonable. It would be one thing if Father and

       Mother recognized this. Neither Father nor Mother, however, acknowledges

       the unreasonableness of Father’s actions or seems inclined to participate in

       court-ordered services in good faith. DCS’s primary responsibility must be

       Child’s safety. Ind. Code § 31-34-21-5.5(a) (“In determining the extent to

       which reasonable efforts to reunify or preserve a family are appropriate under

       this chapter, the child’s health and safety are of paramount concern.”). So long
       Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 26 of 28
       as neither Parent recognizes the difference between reasonable and

       unreasonable corporal punishment, the order to refrain from any form of

       physical discipline does not represent an abuse of discretion.


                                 F. Reimburse DCS for Services
[27]   The juvenile court’s disposition provides, in part, that Parents “shall reimburse

       to the Local Office of the Department of Child Services, expenses for services to

       benefit the child.” Indiana Code section 31-40-1-3(a) provides, in part, that “[a]

       parent [of] a child adjudicated a delinquent child or a child in need of services

       … is financially responsible as provided in this chapter … for any services

       provided by or through the department.” Section 31-40-2-3(c) provides, in part

       that

               the juvenile court shall order the child’s parents or the guardian
               of the child’s estate to pay for, or reimburse the department for
               the cost of services provided to the child or the parent or
               guardian unless the court makes a specific finding that the parent
               or guardian is unable to pay or that justice would not be served
               by ordering payment from the parent or guardian.
[28]   The juvenile court’s order is entirely consistent with the relevant provisions of

       Indiana Code section 31-40-2-3. Moreover, while it seems reasonable that

       Parents should be able to challenge reimbursement requests they consider to be

       unreasonable, there is no indication that any requests have been made.

       Consequently, we conclude that the issue is not ripe for adjudication. Ind. Dep’t

       of Envtl. Mgmt. v. Chem. Waste Mgmt., Inc., 643 N.E.2d 331, 336 (Ind. 1994)

       (“Ripeness relates to the degree to which the defined issues in a case are based


       Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 27 of 28
       on actual facts rather than on abstract possibilities, and are capable of being

       adjudicated on an adequately developed record.”). Without reimbursement

       requests, there is nothing to review. Mother has failed to establish an abuse of

       discretion.



                                               Conclusion
[29]   We conclude that there is sufficient evidence to sustain the juvenile court’s

       adjudication that Child is a CHINS. We further conclude that the juvenile

       court did not abuse its discretion in ordering Mother to participate in certain

       services.


       The judgment of the juvenile court is affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A05-1510-JC-1724 | May 24, 2016   Page 28 of 28
