MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                  Sep 29 2016, 8:46 am
regarded as precedent or cited before any
                                                                           CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Julia Blackwell Gelinas                                  Gregory F. Zoeller
Thomas W. Farlow                                         Attorney General of Indiana
Jenai M. Brackett
Frost Brown Todd LLC                                     Robert J. Henke
Indianapolis, Indiana                                    Deputy Attorney General

                                                         James D. Boyer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of L.S. (Minor                             September 29, 2016
Child), a Child in Need of                               Court of Appeals Case No.
Services,                                                49A05-1603-JC-491
                                                         Appeal from the Marion Superior
D.S.,                                                    Court
Appellant-Respondent,                                    The Honorable Marilyn A.
                                                         Moores, Judge
        v.
                                                         Trial Court Cause No.
Indiana Department of Child                              49D09-1505-JC-1608
Services,
Appellee-Petitioner.




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      Najam, Judge.


                                         Statement of the Case
[1]   D.S. (“Father”) appeals the juvenile court’s order finding his daughter L.S.

      (“Child”) to be a child in need of services (“CHINS”). Father presents two

      issues for our review, which we consolidate and restate as whether the evidence

      is sufficient to support the CHINS adjudication.


[2]   We affirm.


                                   Facts and Procedural History
[3]   Father and P.S. (“Mother”) married in November 2007, and Child was born in

      June 2008. On April 28, 2015, the Indiana Department of Child Services

      (“DCS”) received a report that, on April 26, Father had “punched [Mother] in

      the face” while Mother was holding Child and had attempted to prevent

      Mother from calling police. Resp’t Ex. A. Father was arrested for, among

      other things, domestic battery and battery in the presence of a child, and

      Mother obtained a No Contact Order against Father.1 Accordingly, Father

      moved out of the family home.


[4]   On May 13, DCS filed a petition alleging that Child was a CHINS. During a

      factfinding hearing held over the course of three days in August and September,




      1
        Initially, that order prohibited Father from contact with both Mother and Child, but Father was
      subsequently granted supervised visitation with Child.

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Father and Mother testified that they were not living together and planned to

dissolve the marriage. Child was living with Mother and had frequent

supervised visitation with Father. By all accounts, Child was happy, thriving,

and doing very well in school. And, while Child had not been diagnosed with

any particular psychological disorder, Mother testified that, in her opinion,

Child was suffering from anxiety. Accordingly, Child was seeing a therapist on

a regular basis. At the conclusion of that hearing, the juvenile court issued the

following findings and conclusions in support of its determination that Child

was a CHINS:

        3. On or about April 25, 2015[,] and April 26, 2015, Mother and
        [Child] returned to the marital residence located at 4460 Sylvan
        Road, Indianapolis, Indiana, shortly after midnight. They were
        returning from a birthday party, which Father had attended
        separately and from which he had left earlier.

        4. [Child] had fallen asleep in the car on the way home, and
        Mother was attempting to carry her into the home in her arms.
        Unable to knock on the locked door, Mother kicked it and waited
        for Father to open the door. When Father did not come to the
        door, she kicked the door more loudly.

        5. Father had fallen asleep and was upset that Mother and
        [Child] were returning so late.

        6. He finally opened the door, yelled, “What the fuck?” and
        struck Mother on the side of her head, knocking off her hat, with
        [Child] still in her arms.

        7. [Child] was awake at this point and observed her Father hit
        her mother.


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        8. Mother then carried [Child] to her room and put her on her
        bed.

        9. Mother then returned to where Father was and they argued.

        10. Mother took Father’s cell phone and he physically attempted
        to take it from her. She dialed 911 to seek assistance from law
        enforcement and Father tried to prevent her from doing so.

        11. Father was unable to prevent Mother’s call to IMPD and
        officers responded to their home.

        12. Mother’s wrist was visibly bruised by Father’s actions.

        13. Father was arrested for Interfering with Reporting of a Crime,
        Domestic Battery, Battery Resulting in Bodily Injury, and Battery
        in the Presence of a Child and was charged with same under
        cause number 49G16-1504-F6-014416, which charges remained
        pending at the time of fact-finding.

        14. Initially, the criminal court issued a No Contact Order
        preventing Father from having contact with Mother and [Child];
        however, this was later modified to permit Father to have
        supervised parenting with [Child].

        15. This incident of domestic violence between Mother and
        Father in [sic] was not the first to occur in the presence of
        [Child]. Previously, Father had thrown a plastic garbage can lid
        at Mother which struck her in head. In another incident Father
        threw water on Mother and [Child].

        16. Because of a domestic violence incident in 2012, where
        Father injured Mother, Mother’s L4 and L5 discs were damaged
        and she had to undergo 2 years of treatment.

        17. Father was also verbally abusive to Mother, calling her “fat”
        and “ugly.”

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        18. In March, 2015, Father kicked Mother in the back, causing
        her pain.
        19. [Child] stated that it makes her mad when her parents argue
        and physically fight.

        20. She has clearly been affected by the violence she has seen
        between her parents. She reported that it [sic] her father didn’t
        know who she and her mother were when he struck her mother
        in the head that night in April, 2015. The Court finds that this is
        young [Child]’s way of trying to reconcile in her mind seeing her
        father whom she loves, hitting her mother who she also loves.

        21. [Child] demonstrates anxiety symptoms such as picking at
        her nails and saying her stomach hurts.

        22. [Child] demonstrates protective, mothering behavior toward
        her mother. In the presence of FCM Licorish-Holly, [Child] told
        her mother “we’re not doing this right now” when her mother
        started to cry and then wiped away her tear.

        23. Father seems to believe that [Child]’s current anxiety can be
        explained by her parents’ separation and that because he and his
        family surround [Child] with love and support, attend to her
        every need, that she has been unaffected by the violence she has
        seen her father visit upon her mother on multiple occasions.

        24. As found in In Re: The Termination of the Parent-Child
        Relationship of E.M. and El.M., 4 N.E.3d 636, 644 (Ind. 2014),
        “Father’s violence towards (sic) Mother had also [‘]abused[’]
        E.M. and El.M. . . .[”] “[M]any people assume that very young
        children are not affected at all” by violence between their parents,
        “erroneously believing that they are too young to know or
        remember what has happened.” Joy D. Osofsky, The Effects of
        Exposure to Violence on Young Children, 50 Am. Psychologist 782,
        783 (1995). But “even in the earliest phases of infant and toddler
        development, clear associations have been found between
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        exposure to violence and post-traumatic symptoms and
        disorders.” Id. Indeed, “[t]he developing brain is most
        vulnerable to the impact of traumatic experiences” before age
        one—and during the first three years, those experiences actually
        change the organization of the brain’s neural pathways. Abigail
        Sterne et al., Domestic Violence and Children: A Handbook for
        Schools and Early Years Settings, 19 (2010) (citations omitted);
        Allan N. Schore, The Effects of Early Relational Trauma on Right
        Brain Development Affect Regulation, and Infant Mental Health, 22
        Infant Mental Health J. 201, 209-10 (2001).

        25. Again, as found in In Re: The Termination of the Parent-Child
        Relationship of E.M. and El.M, supra, “[a] lack of beatings therefore
        does not equate to a lack of abuse, nor does the children’s tender
        age equate to a lack of harm. Infants as young as fifteen months
        exhibit behavioral disturbances from spousal violence. Charles
        H. Zeanah, et al, Disorganized Attachment Associated with Partner
        Violence: a Research Note, 20 Infant Mental Health J. 77, 82-83
        (1999).” And for later infants and toddlers like El.M. and E.M.,
        the symptoms are “very similar to post-traumatic stress disorder
        in adults.” Joy D. Osofsky, The Impact of Violence on Children, 9
        Domestic Violence & Children 33, 36 (1999) (citing Osofsky et
        al., The Effects of Trauma on Young Children: A Case of Two-Year-Old
        Twins, 76 Int’l J. Psychoanalysis 595 (1995)). But “[y]ounger
        children generally do not have the ability to express their feelings
        verbally”—so their “observable reactions . . . may not tally with
        their emotional reactions,” and “[i]t may take some time before
        children are able to show any reaction at all” despite being
        affected. Sterne et al., supra, at 20.” 3 N.E.3d at 644-5.

        26. [Child]’s physical and mental condition is seriously impaired
        and endangered as a result of the inability, refusal or neglect of
        her parents to provide her with necessary shelter and supervision,
        as provided in Ind. Code §31-34-1-1.

        27. Prior to the domestic violence incident in April, 2015, Father
        claimed that while under a doctor’s care, [he] had become
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        dependent on opiate prescription pain medication. However, he
        had also taken some of Mother’s opiate prescription pain
        medications. He continued his abuse of these medications until
        immediately after his arrest for the domestic violence which
        precipitated the instant action.

        28. Mother had observed Father slurring his speech while
        abusing Vicodin.

        29. Father in the months immediately preceding April, 2015 paid
        little attention to [Child], preferring to isolate himself from them
        and stay in his room or the garage most of the time.

        30. Maternal grandmother Judy Stewart noted that both parents
        had been struggling with substance abuse and marital problems
        for some time, but the family did not intervene or approach
        them.

        31. Following his arrest, Father’s family did intervene with
        regard to his substance abuse and he entered Valle Vista Hospital
        for drug dependence treatment. After a week at Valle Vista,
        Father left. He then entered Fairbanks Hospital for seven (7) or
        (8) days of continued in-patient treatment. Following his
        discharge from Fairbanks, Father said he was recommended to
        complete 18 weeks of intensive outpatient drug treatment, which
        he stated he did. However, he offered no documentation thereof.
        He has had no positive drug screens.

        32. Father claimed his treatment at Fairbanks included conflict
        resolution, anger management and triggers for substance abuse,
        although he offered no documentation to support these
        assertions.

        33. Both parents smoked marijuana on occasion prior to Father’s
        arrest in April, 2015.



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              34. Father was previously arrested for and convicted of
              possession of marijuana in Hamilton County. He was placed on
              probation and had to undergo substance abuse classes, but
              continued to smoke marijuana.
              35. Father has been in [Child]’s presence while under the
              influence of the opiate pain medications he was abusing, as well
              as when he was under the influence of marijuana.

              36. Caregivers who are under the influence of illegal substances
              or in the grips of drug dependence do not provide a child with the
              requisite level of supervision, nor do they provide a child with an
              appropriate home environment.

              37. [Child]’s physical and mental condition is seriously impaired
              and endangered as a result of the inability, refusal or neglect of
              her parents to provide her with necessary shelter and supervision,
              as provided in Ind. Code §31-34-1-1.

              38. It is clear that the coercive intervention of the court is
              necessary, in that Father does not believe that his violence
              toward Mother has affected [Child].

              39. It is further clear that the coercive intervention of the court is
              necessary because it was not until he was arrested for domestic
              violence charges and forced from his home by a No Contact
              Order that he sought help for his opiate drug dependence.


      Appellant’s App. at 114-16. This appeal ensued.


                                     Discussion and Decision
[5]   Father contends that the evidence is insufficient to support the trial court’s

      determination that Child is a CHINS. Our supreme court has explained the




      Court of Appeals of Indiana | Memorandum Decision 49A05-1603-JC-491 | September 29, 2016   Page 8 of 12
      nature of a CHINS proceeding and appellate review of a CHINS determination

      as follows:


              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.R., 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 trial court’s decision and
              reasonable inferences drawn therefrom. Id. We reverse only
              upon a showing that the decision of the trial 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.


      S.S. v. Ind. Dep’t of Child Servs. (In re K.D.), 962 N.E.2d 1249, 1253-54 (Ind. 2012)

      (footnote omitted).


[6]   Here, the juvenile court issued findings and conclusions sua sponte. Therefore,

      as to the issues covered by the findings, we apply the two-tiered standard of

      whether the evidence supports the findings, and whether the findings support

      the judgment. J.B. v. Ind. Dep’t of Child Servs. (In re S.D.), 2 N.E.3d 1283, 1287

      (Ind. 2014). But we review the remaining issues under the general judgment

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      standard, under which a judgment will be affirmed if it can be sustained on any

      legal theory supported by the evidence. Id.


[7]   DCS alleged that Child was a CHINS pursuant to Indiana Code Section 31-34-

      1-1, which provides as follows:


              A child is a child in need of services if before the child becomes
              eighteen (18) 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 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.” In re S.D., 2 N.E.3d at

      1287.


[8]   Here, Father contends that the evidence is insufficient to prove either that: (1)

      Child’s mental condition is seriously impaired or seriously endangered as a

      result of the inability, refusal, or neglect of the parents to supply Child with

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      necessary food, clothing, shelter, medical care, education, or supervision; or (2)

      Child needs care, treatment, or rehabilitation that is unlikely to be provided or

      accepted without the coercive intervention of the court. We cannot agree.


[9]   In N.L. v. Indiana Department of Child Services (In re N.E.), 919 N.E.2d 102, 106

      (Ind. 2010), our supreme court upheld a CHINS determination where the

      evidence showed that the “Mother [had] failed to protect N.E. and her siblings

      from ongoing domestic violence between herself and the alleged father of her

      youngest child and . . . there had been several incidents of domestic violence

      against Mother in the presence of her children.” Here, Father does not dispute

      the trial court’s findings regarding the episodes of domestic violence against

      Mother in Child’s presence. And Mother testified that Child is “definitely

      safer” since the CHINS proceedings began. Tr. at 61. Mother testified that

      Child is benefitting from therapy, but that there is still “a lot of progress to

      make.” Id. at 62. Mother stated that her family “would benefit from DCS

      being involved” because the proceedings have helped Mother

              realize that what [she] was going through was abuse and needs to
              stop and that [she] cannot be [in] a situation like that any, ever
              [sic] again and [she] feel[s] like for [Child] . . . this cannot be
              swept under the rug. [Child] has seen and heard things, we just
              can’t just [sic] ignore. [Child] needs someone professional to talk
              to.


      Id. at 63. In other words, Mother testified that both she and Child were victims

      of domestic violence and expressed her desire that Child be adjudicated a

      CHINS.

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[10]   Again, the juvenile court found that Child: “has clearly been affected by the

       violence she has seen between her parents”; “demonstrates anxiety symptoms

       such as picking at her nails and saying her stomach hurts”; and “demonstrates

       protective, mothering behavior toward her mother.” Appellant’s App. at 115.

       Accordingly, the juvenile court concluded that Child’s physical and mental

       condition is seriously impaired and endangered as a result of the inability,

       refusal, or neglect of her parents to provide her with necessary shelter and

       supervision. Further, the juvenile court concluded that coercive intervention of

       the court is necessary because “Father does not believe that his violence toward

       Mother has affected [Child]” and because “it was not until he was arrested for

       domestic violence charges and forced from his home by a No Contact Order

       that he sought help for his opiate drug dependence.” Id. at 116.


[11]   DCS presented evidence that Child was exposed to domestic violence and, as

       the juvenile court found, likely suffered as a result of that exposure. Mother

       testified that she is concerned about Child’s anxiety, and, moreover, Mother

       expressed her desire that Child remain a CHINS in order to continue with

       services. We hold that the evidence is sufficient to support the juvenile court’s

       adjudication of Child as a CHINS.


[12]   Affirmed.


       Vaidik, C.J., and Baker, J., concur.




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