MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Sep 30 2019, 10:53 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
Danielle Sheff                                           Curtis T. Hill, Jr.
Sheff Law Office                                         Attorney General of Indiana
Indianapolis, Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of L.B., I.B., O.B.,                       September 30, 2019
and L.S., Minor Children                                 Court of Appeals Case No.
Alleged to be Children In Need                           19A-JC-681
of Services;                                             Appeal from the Marion Superior
D.B. (Mother),                                           Court
                                                         The Honorable Marilyn A.
Appellant-Respondent,
                                                         Moores, Judge
        v.                                               The Honorable Gael S. Deppert,
                                                         Magistrate
Indiana Department of Child                              Trial Court Cause Nos.
Services,                                                49D09-1811-JC-2747
                                                         49D09-1811-JC-2748
Appellee-Petitioner,                                     49D09-1811-JC-2749
                                                         49D09-1811-JC-2750
and

Child Advocates, Inc.,


Court of Appeals of Indiana | Memorandum Decision 19A-JC-681 | September 30, 2019                Page 1 of 14
      Appellee-Guardian ad Litem.




      Najam, Judge.


                                        Statement of the Case
[1]   D.B. (“Mother”) appeals the trial court’s adjudication of her minor children

      L.B., I.B., O.B., and L.S. (collectively “Children”), as children in need of

      services (“CHINS”). Mother presents several issues for our review, which we

      consolidate and restate as the following three issues:


              1.       Whether the Indiana Department of Child Services
                       (“DCS”) presented sufficient evidence to support the trial
                       court’s adjudication of Children as CHINS.

              2.       Whether the trial court clearly erred when it ordered
                       Mother to participate in certain services pursuant to the
                       parental participation order.

              3.       Whether the trial court has jurisdiction over L.S. given his
                       possible Native American heritage.


[2]   We affirm.


                                  Facts and Procedural History
[3]   Mother is the mother of L.B., born May 16, 2008; I.B., born September 21,

      2009; O.B., born May 15, 2011; and L.S., born March 28, 2016. R.B. is the

      father of L.B. and O.B.; R.A.B. is the father of I.B.; and C.S. is the father of


      Court of Appeals of Indiana | Memorandum Decision 19A-JC-681 | September 30, 2019   Page 2 of 14
      L.S. Mother and C.S. have been in a romantic relationship for several years,

      and there have been multiple instances of domestic violence between them. In

      August and October 2018, “law enforcement responded to three (3)

      disturbances between [Mother] and [C.S.] that occurred with children present.”

      Appellant’s App. Vol. 3 at 111. In addition, on October 4, 2018, “a fourth

      disturbance . . . occurred where [Mother] reported [C.S.] held her against her

      will for fourteen (14) hours, threatened to kill her if she contacted police,

      assaulted her and then prevented her and [L.S.] from leaving the scene.” Id.

      Accordingly, on October 5, Mother filed a petition for an order of protection

      against C.S., which the trial court granted.


[4]   On October 22, at 2:55 a.m., C.S. “banged” on the door of Mother’s home, and

      on October 29, Mother filed a petition for contempt against C.S. Id. at 112.

      The State subsequently charged C.S. with invasion of privacy for violating the

      order of protection. However, on November 5, Mother moved the trial court to

      dismiss the order of protection, which the trial court did.


[5]   Due to the domestic violence between Mother and C.S. in the presence of

      Children, on November 9, DCS filed petitions alleging that Children were

      CHINS, and the trial court removed Children from Mother’s care. On January

      2, 3, and 4, 2019, and on February 27, the trial court held fact-finding hearings

      and a dispositional hearing. The court determined Children to be CHINS and

      found and concluded in part as follows:




      Court of Appeals of Indiana | Memorandum Decision 19A-JC-681 | September 30, 2019   Page 3 of 14
        10. [Mother] was earlier involved with DCS in 2003 or 2004,
        involving three (3) older children, two of whom she signed
        voluntary consents to adopt.

                                                ***

        22. On 10/5/18, Indianapolis Metropolitan Police Department
        (IMPD) Officer Hibschman responded to a disturbance, close to
        midnight, where he saw [Mother] outside in her driveway by her
        vehicle, visibly upset, because her child’s father, [C.S.], came
        over to argue with her. [Mother] told the officer that their son
        ([L.S.]) was present the night I was called there (on 10/5/18),
        and that [C.S.] left [Mother’s] residence before IMPD arrived.

        23. [Mother] also told Officer Hibschman that the day before, on
        10/4/18, [C.S.] came to her home about 9:00 a.m, and held her
        hostage for fourteen (14) hours, leaving about 11:00 p.m. He
        would not let her call the police, or he would kill her. [Mother]
        then left for the hospital for injuries she said [C.S.] caused her
        when he assaulted her sometime during 10/4/18. After she left
        for the hospital, [C.S.] called [Mother] and told her he was
        returning to [Mother’s] residence to get his son [L.S.], which
        caused [Mother] to interrupt her drive to the hospital and return
        to her residence for her son. Mother reported to Officer
        Hibschman that [C.S.] subsequently blocked her vehicle so that
        [Mother] could not leave with their son, [L.S.], who was buckled
        in the car. [Mother] reported that [C.S.] pushed her into the door
        jamb of the vehicle, causing her pain in addition to injuries
        she received earlier from him. [C.S.] then left the scene, with her
        extra set of car keys and house keys, before IMPD arrived.
        [Mother] informed Officer Hibschman she intended to obtain a
        protective order.

        24. Officer Hibschman recalls that [Mother] told him the
        children were present 10/4/18.



Court of Appeals of Indiana | Memorandum Decision 19A-JC-681 | September 30, 2019   Page 4 of 14
        25. Based on Officer Hibschman’s undisputed testimony, [the]
        Court finds that on 10/4/18, [C.S.] held [Mother] hostage for
        fourteen (14) hours, threatened her with death if she contacted
        police, and caused her injuries and pain before he then prevented
        her from leaving the scene with the child [L.S.] buckled in the
        car that [Mother] was driving.

                                                ***

        52. During this CHINS cause, above, and prior to fact-finding,
        DCS referred [Mother and C.S.] to Families First for a domestic
        violence assessment for each parent.

        53. Families First counselor Stacey May assessed [C.S.] for
        about two (2) hours on or about 11/13/18 pursuant to a DCS
        referral through these CHINS causes. . . .

        54. During the domestic violence assessment. . . [C.S.]
        acknowledged his behavior and took accountability for his
        actions where he slapped [Mother].

        55. FCM permanency worker states that both [Mother and C.S.]
        are in domestic violence classes through a DCS referral, which
        classes are not completed.

        56. [C.S.] informed the Guardian ad Litem that [C.S.] was upset
        with the allegations in this CHINS cause . . . because the petition
        omitted that [Mother] smacked him seven or eight times.

        57. Testimony is conflicting regarding whether [C.S.] resides in
        [Mother’s] home, or whether he only visits the home, to include
        visits at late hours when [Mother] and [R.B.] communicate by
        phone; [C.S.] states he moved out of [Mother’s] residence the
        week prior to the fact-finding date of 1/2/19 because he is tired
        of stuff and [Mother] would not let (him) see the kids.

                                                ***

Court of Appeals of Indiana | Memorandum Decision 19A-JC-681 | September 30, 2019   Page 5 of 14
        62. [Mother] is upset that these CHINS causes, above, have been
        opened, as she contacted police because she and [C.S.] had an
        argument and she was angry with [C.S.] [Mother] considers
        herself being honest for calling the police where [Mother] was the
        victim.

        63. [Mother] has no recollection or memory of physical contact
        or physical violence or no actual physical violence between her
        and [C.S.]: [“]I call the police because I am mad at him.[”]

        64. [Mother] has not acknowledged to [the] Guardian ad Litem
        or the DCS FCM that domestic violence has occurred between
        her and [C.S.]

        65. [Mother and C.S.] assert that they argue.

        66. [Mother] testified that she does not remember any physical
        violence between her and [C.S.]: [“]We argue and that’s about
        it.[”]

        67. [Mother and C.S.] have discussed with the Guardian ad
        Litem and other members of the Child Family Team that they
        are working on their relationship and that they plan to live
        together.

                                                ***

        75. On 11/26/18, the children were placed in relative/kinship
        care with aunt-in-law Judy Stedman.

        76. On or about 12/28/18, relative care provider and maternal
        aunt Judy Stedman requested immediate removal of the children,
        above, from her care, on the basis of [Mother’s] harassing
        conduct toward Ms. Stedman.

        77. The children remain removed from the care and custody of
        their parents at the time of the fact-finding.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-681 | September 30, 2019   Page 6 of 14
        [The] Court finds [Mother and C.S.] unable, or unwilling, to
        acknowledge ongoing domestic disturbances between themselves
        that occur in the presence of [the C]hildren. . . . There have been
        four (4) such disturbances in a period of two (2) months in
        2018. . . . While [Mother] has called the police in three of the
        four instances, and she has also sought protective orders against
        [C.S.] since 2017, both of them continue to demonstrate
        judgment that seriously endangers the physical or mental
        condition of the children: Since 2017, [Mother] has successfully
        petitioned for multiple orders for protection against [C.S.], each
        of which she then sought to have dismissed, in periods of time
        ranging from 24 hours to no more than thirty (30) days since the
        issuance of the order. On 11/1/18, [C.S.] was criminally
        charged with invasion of privacy for violating an order for
        protection issued for [Mother], who sought to have that charge,
        and protective order, lifted, which the criminal court granted on
        11/20/18, some 11 days since the filing of these CHINS
        allegations regarding domestic violence.

        By [Mother’s] testimony, she and [L.B., I.B., and O.B.] need
        therapy, in which they are each individually enrolled. Testimony
        was vague regarding the start dates of these therapy sessions. . . .
        Even if this judicial officer assumes the therapy sessions started a
        month or two prior to these CHINS actions, above, there
        remains significant concern about the willingness of [Mother and
        C.S.] to persist with both the services parents would need to
        address the impact upon their children of the domestic violence
        they perpetrate in the presence of these children, and also
        the therapy sessions in place for her and three of the children at
        the time of the fact-finding. Both [Mother and C.S.] minimize or
        deny the conflict and tension they create and in which these
        children live, and learn, as these children hear and observe the
        escalation and physical violence between [Mother and C.S.] on a
        continuing basis. Given [C.S.’s] denial to the domestic violence
        assessor, and given [Mother’s] repeated efforts to obtain and then
        immediately withdraw her petitions for orders for protection, this


Court of Appeals of Indiana | Memorandum Decision 19A-JC-681 | September 30, 2019   Page 7 of 14
        judicial officer is concerned that both of these parents would not
        voluntarily access domestic violence services to learn how to
        reduce if not eliminate the serious endangerment they put these
        children in by virtue of these parents’ inability to manage conflict
        without resort to physical aggression in the presence of the
        children. Given that [Mother and C.S.] have stated their intent
        to be together, these children need these parents to complete
        the domestic violence classes already underway. Based on
        [C.S.’s] denial of any domestic disturbances, and on [Mother’s]
        willingness to see dismissal of multiple orders for protection, this
        judicial officer finds the completion of recommendations from
        the domestic violence assessment unlike[ly] to be accepted by
        [Mother and C.S.] without the coercive intervention of the court.

                                                ***

        CONCLUSIONS OF LAW

        1. [L.B., I.B., O.B., and L.S.] is each a child under the age
        of 18 years.

        2. The children’s physical or mental condition is seriously
        impaired or endangered as a result of their parents’ inability,
        refusal, and neglect to provide the children with a safe and stable
        home environment, free from exposure to domestic violence, and
        with adequate parental supervision and involvement.

        3. The children need a safe and stable home environment, free
        from exposure to domestic violence, and with adequate parental
        supervision and involvement, which they are unlikely to receive
        without the coercive intervention of the Court.

        Based upon the Findings and Conclusion[s], the Court now
        adjudicates the children to be Children In Need of
        Services.



Court of Appeals of Indiana | Memorandum Decision 19A-JC-681 | September 30, 2019   Page 8 of 14
      Id. at 109-118. This appeal ensued.


                                     Discussion and Decision
                                Issue One: Sufficiency of the Evidence

[6]   Mother first contends that there was insufficient evidence to sustain the trial

      court’s determination that Children are CHINS. Our Supreme Court recently

      reiterated our standard of review:


              When reviewing a trial court’s CHINS determination, we do not
              reweigh evidence or judge witness credibility. In re S.D., 2
              N.E.3d 1283, 1286 (Ind. 2014). “Instead, we consider only the
              evidence that supports the trial court’s decision and [the]
              reasonable inferences drawn therefrom.” Id. at 1287 (citation,
              brackets, and internal quotation marks omitted). When a trial
              court supplements a CHINS judgment with findings of fact and
              conclusions of law, we apply a two-tiered standard of review.
              We consider, first, “whether the evidence supports the findings”
              and, second, “whether the findings support the judgment.” Id.
              (citation omitted). We will reverse a CHINS determination only
              if it was clearly erroneous. In re K.D., 962 N.E.2d 1249, 1253
              (Ind. 2012). A decision is clearly erroneous if the record facts do
              not support the findings or “if it applies the wrong legal standard
              to properly found facts.” Yanoff v. Muncy, 688 N.E.2d 1259, 1262
              (Ind. 1997) (citation omitted).


      Gr. J. v. Ind. Dep’t. of Child Servs. (In re D.J.), 68 N.E.3d 574, 577-78 (Ind. 2017)

      (alterations in original).


[7]   DCS alleged that Children are CHINS pursuant to Indiana Code Section 31-34-

      1-1 (2018), which 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

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-681 | September 30, 2019   Page 9 of 14
      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 (B) is unlikely to be provided or accepted

      without the coercive intervention of the court. Our Supreme Court has

      interpreted this provision to require “three basic elements: that the parent’s

      actions or inactions have seriously endangered the child, that the child’s needs

      are unmet, and (perhaps most critically) that those needs are unlikely to be met

      without State coercion.” J.B. v. Ind. Dep’t. of Child. Serv. (In re S.D.), 2 N.E.3d

      1283, 1287 (Ind. 2014).


[8]   On appeal, Mother does not challenge any of the trial court’s findings of fact

      that support the CHINS adjudication. Rather, she asserts generally that DCS’

      evidence was “so infected with innuendo and inconsistent testimony that it

      violates Due Process and Equal Protection and is patently insufficient to

      support the CHINS adjudication.” Appellant’s Br. at 36. First, we reject

      Mother’s characterization of the evidence. Second, Mother does not

      demonstrate where in the record she preserved her Due Process and Equal

      Protection claims for appellate review.


[9]   Third, and significantly, none of the evidence Mother challenges is relevant to

      any of the trial court’s findings of fact. For instance, Mother’s primary dispute

      on appeal focuses on DCS’ “allegations of pervasive drug and alcohol use by

      [Mother], bipolar disorder and schizophrenia” which, she alleges, were

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-681 | September 30, 2019   Page 10 of 14
       unsubstantiated. Appellant’s Br. at 37. But not one of the trial court’s findings

       or conclusions rests on the evidence presented in support of those allegations.

       Finally, Mother does not present cogent argument in support of her assertions

       that her constitutional rights have been violated. And it is undisputed that

       Mother “‘had the opportunity to be heard at a meaningful time and in a

       meaningful manner’” in these proceedings, which is what due process requires.

       See S.S. v. Ind. Dep’t of Child Servs. (In re K.D.), 962 N.E.2d 1249, 1257 (Ind.

       2012) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).


[10]   In any event, DCS presented sufficient evidence to support the CHINS

       adjudications. It is well settled that a child’s exposure to domestic violence can

       support a CHINS adjudication under Indiana Code Section 31-34-1-1. See N.L.

       v. Ind. Dep’t. of Child. Serv. (In re N.E.), 919 N.E.2d 102, 106 (Ind. 2010); see also

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

       2017) (“[A] single incident of domestic violence in a child’s presence may

       support a CHINS finding, and [the violence] need not necessarily be

       repetitive.”). Here, the trial court found, and Mother does not dispute, that


               [Mother and C.S. are] unable, or unwilling, to acknowledge
               ongoing domestic disturbances between themselves that occur in
               the presence of [C]hildren. . . . There have been four (4) such
               disturbances in a period of two (2) months in 2018, including one
               report by [Mother] that included [C.S.] threatening to kill her if
               she called the police, assaulting her during that 14[-]hour period
               and causing both injury and pain to her, and then blocking her
               car with [L.S.] in the car seat when she attempted to leave.


       Appellant’s App. Vol. 3 at 115.

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-681 | September 30, 2019   Page 11 of 14
[11]   Mother’s contentions amount to a request that we reweigh the evidence, which

       we cannot do. The findings support the trial court’s conclusions that the

       Children’s physical or mental conditions are seriously impaired or endangered

       as a result of Mother’s inability, refusal, and neglect to provide Children with a

       safe and stable home environment, free from exposure to domestic violence,

       and with adequate parental supervision and involvement and that Children

       need a safe and stable home environment, which they are unlikely to receive

       without the coercive intervention of the Court. We therefore hold that

       sufficient evidence supports the trial court’s findings, and its findings support its

       conclusions with respect to Indiana Code Section 31-34-1-1. We affirm the trial

       court’s adjudication of Children as CHINS.


                                     Issue Two: Dispositional Decree

[12]   Mother next contends that the trial court erred when it “ordered [her] to

       participate in services for which no evidence was presented at the CHINS

       proceedings.” Appellant’s Br. at 45. In particular, Mother asserts that there

       was no reason for the court to order her to participate in home-based services,

       which appears to relate to mental-health treatment, or to submit to random

       drug screens. We cannot agree.


[13]   Indiana Code Section 31-34-20-3 provides in relevant part that, if the trial court

       determines that a parent should participate in a program of care, treatment, or

       rehabilitation for the child, the court may order the parent to obtain assistance

       in fulfilling the obligations as a parent and to participate in a mental health or

       addiction treatment program. This court has held that, although the trial court
       Court of Appeals of Indiana | Memorandum Decision 19A-JC-681 | September 30, 2019   Page 12 of 14
       has “broad discretion in determining what programs and services in which a

       parent is required to participate, the requirements must relate to some behavior

       or circumstance that was revealed by the evidence.” M.C. v. Marion Cty. Dep’t of

       Child Servs. (In re A.C.), 905 N.E.2d 456, 464 (Ind. Ct. App. 2009). Here, the

       trial court ordered in relevant part that Mother was required to participate “in a

       home-based case management program referred by the Family Case Manager

       and follow all recommendations” and to “submit to random drug/alcohol

       screens.” Appellant’s App. Vol. 4 at 35.


[14]   First, on the issue of the home-based case management program, the trial court

       explicitly stated at the dispositional hearing that it would not be required for

       Mother unless indicated by the results of a psychological evaluation. Second,

       the trial court ordered drug screens based on the family case manager’s

       testimony that, during the initial CHINS investigation in November 2018,

       Mother had reported substance abuse, and the court was concerned that her

       substance abuse might be contributing to the cycle of domestic violence. The

       court stated that if Mother tested negative, she would not have to undergo a

       substance abuse assessment or treatment. We hold that the evidence supports

       the trial court’s orders.


                                 Issue Three: Indian Child Welfare Act

[15]   Finally, Mother asks that we remand to the trial court to order DCS to

       determine whether L.S. “might fall under the auspices of the Indian Child

       Welfare Act.” Appellant’s Br. at 53. The Indian Child Welfare Act (“ICWA”)

       was enacted “to protect the best interests of Indian children and to promote the
       Court of Appeals of Indiana | Memorandum Decision 19A-JC-681 | September 30, 2019   Page 13 of 14
       stability and security of Indian tribes and families by the establishment of

       minimum Federal standards for the removal of Indian children from their

       families[.]” 25 U.S.C.A. § 1902. A party who seeks to invoke a provision of

       the ICWA has the burden to show that the Act applies in the proceeding.

       Thompson v. Elkhart Ofc. of Fam. and Child. (In re S.L.H.S.), 885 N.E.2d 603, 612

       (Ind. Ct. App. 2008). Applicability of the ICWA depends on whether the

       proceeding involves an “Indian child,” which is defined as “any unmarried

       person who is under the age of eighteen and is either (a) a member of an Indian

       tribe or (b) is eligible for membership in an Indian tribe and is the biological

       child of a member of an Indian tribe.” 25 U.S.C. § 1903(4) (emphasis added).


[16]   Here, Mother asserts that “[p]reliminary hearings in this matter . . . show that

       the [trial court] was presented with information that [C.S.] might be eligible for

       membership in the Cherokee Tribe[.]” Appellant’s Br. at 53. Indeed, DCS filed

       a notice in compliance with the ICWA that a CHINS petition had been filed

       and that someone had alleged that C.S. may be eligible to be a member of an

       Indian tribe. However, Mother has not directed us to any evidence either that

       C.S. is a member or is eligible for membership in an Indian tribe or that his

       father is a member of a tribe. Without such evidence, Mother did not meet her

       burden to show that the ICWA applies, and she has not persuaded us that

       remand is necessary on this issue.


[17]   Affirmed.


       Bailey, J., and May, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-681 | September 30, 2019   Page 14 of 14
