MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Aug 14 2019, 9:07 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
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         Frances Barrow
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of Ka.S., S.S., and                        August 14, 2019
Ch.I., Children Alleged to be                            Court of Appeals Case No.
Children In Need of Services;                            19A-JC-545
K.S. (Mother),                                           Appeal from the Jackson Superior
                                                         Court
Appellant-Respondent,
                                                         The Honorable Bruce A.
        v.                                               MacTavish, Judge
                                                         Trial Court Cause Nos.
Indiana Department of Child                              36D02-1805-JC-38
                                                         36D02-1805-JC-39
Services,
                                                         36D02-1805-JC-40
Appellee-Petitioner.



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-JC-545 | August 14, 2019                  Page 1 of 5
                                        Statement of the Case
[1]   K.S. (“Mother”) appeals the trial court’s adjudication of her three minor

      children, Ka.S., S.S., and Ch.I. (collectively, “the Children”) as Children in

      Need of Services (“CHINS”). Mother raises a single issue for our review,

      namely, whether the trial court clearly erred when it adjudicated the Children to

      be CHINS after Mother had permitted Ch.I. (hereinafter, “the Child”) to fondle

      her breasts while she masturbated.


[2]   We affirm.


                                  Facts and Procedural History
[3]   In May of 2018, C.I., the Child’s father (“Father”), spoke with Mother on his

      cell phone using a video-conferencing app. During that conversation, Mother

      “started masturbating and asking [Father] to drop [his] custody case.” Aug. 29,

      2018, Tr. Vol. 2 at 9. While she was doing so, the Child “pull[ed] her shirt

      down, play[ed] with her nipples, [and] suck[ed] on her nipples.” Id. The Child

      was about twenty-three months old and, although he had been breastfed when

      he was younger, had been weened “for months” prior to the phone call. Id.


[4]   Father recorded the phone call and surrendered the recording to the Indiana

      Department of Child Services (“DCS”) and local law enforcement. Thereafter,

      DCS filed its petition alleging the Children to be CHINS. Father testified to the

      court at an ensuing fact-finding hearing. Jennifer Eddings, a home-based

      family therapist, also testified at that hearing. According to Eddings, based on

      Mother’s alleged conduct with the Child, Mother’s participation in family

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-545 | August 14, 2019   Page 2 of 5
      therapy with Child’s siblings was “necessary for [the other two children] to be

      able to move forward,” but Mother refused to participate. Id. at 39. Eddings

      further testified that Mother’s refusal to participate was “detrimental” to the

      Child’s siblings. Id.


[5]   Following that hearing, the court found as follows:


              4.    On May 17, 2018, [Father] recorded a video on his phone
              which depicted [Mother] masturbating while [the Child] played
              with and sucked on her nipples.


                                                      ***


              8.     [Eddings] has attempted to engage Mother in therapy as
              she believes it is necessary for her to participate. Mother has thus
              far refused to engage in any therapy with Ms. Eddings.


      Appellant’s App. Vol. 2 at 68. The court then adjudicated the Children to be

      CHINS. This appeal ensued.


                                     Discussion and Decision
[6]   Mother asserts that the trial court clearly erred when it adjudicated the Children

      to be CHINS. As our Supreme Court has explained:


              In all CHINS proceedings, the State must prove by a
              preponderance of the evidence that a child is a CHINS as defined
              by the juvenile code. When reviewing a CHINS adjudication,
              we do not reweigh evidence or judge witness credibility and will
              reverse a determination only if the decision was clearly
              erroneous. A decision is clearly erroneous if the record facts do


      Court of Appeals of Indiana | Memorandum Decision 19A-JC-545 | August 14, 2019   Page 3 of 5
               not support the findings or if it applies the wrong legal standard
               to properly found facts.


      V.B. v. Ind. Dep’t of Child Servs., 124 N.E.3d 1201, 1208 (Ind. 2019) (citations

      and quotation marks omitted).


[7]   Mother asserts that “[a] single incident of inappropriate behavior in the

      presence of the child is not sufficient to demonstrate the child is in need of

      services.” Appellant’s Br. at 11. She further asserts that “[t]here was no

      evidence that [the Child] or any other child was physically or mentally harmed

      by Mother’s actions.” Id. at 12. And she claims that DCS failed to prove that

      the coercive intervention of the court was necessary. 1


[8]   We reject Mother’s arguments. First, Mother cites no case law support for her

      categorical statement that “[a] single incident of inappropriate behavior” cannot

      support a CHINS adjudication. Id. While this Court may have reversed

      adjudications based on only a single incident of certain inappropriate behaviors,

      not all inappropriate behaviors are equally inappropriate. See A.M. v. Ind. Dep’t

      of Child Servs. (In re Ad.M.), 103 N.E.3d 709, 714-15 (Ind. Ct. App. 2018) (“the

      evidence in the instant case demonstrates that there was one incident of

      domestic violence between Mother and Father, that Mother and the Children

      have since moved away from Father, and that Mother has filed for a protective




      1
        Insofar as Mother asserts a failure by DCS to prove other circumstances that might have resulted in the
      adjudications here, such as her mental health or a failure to provide food, clothing, or shelter, we need not
      consider such arguments.

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-545 | August 14, 2019                       Page 4 of 5
       order against him. Accordingly, DCS has not presented sufficient evidence to

       show that the single incident of domestic violence seriously endangered the

       Children.”). Mother has not carried her burden on appeal to show that the trial

       court’s judgment here, which is supported by the evidence, is contrary to law.


[9]    We also reject Mother’s argument that DCS failed to demonstrate either that

       the Children were harmed by Mother’s actions or that the coercive intervention

       of the court was necessary. Instead, we agree with DCS that “Mother’s

       criminally inappropriate conduct with [the Child] showed that she had

       problems that would benefit from therapy, and Mother’s refusal to do so

       endangered” each of the Children. Appellee’s Br. at 14. Indeed, Mother’s

       conduct, as demonstrated by Father’s testimony to the court, directly

       endangered Child. And her refusal to participate in home-based services, as

       demonstrated by Eddings’ testimony to the court, was “detrimental” to Child’s

       siblings. Aug. 28, 2018, Tr. Vol. 2 at 39. Thus, we cannot say that the

       undisputed evidence and the reasonable inferences therefrom demonstrate that

       the trial court erred when it adjudicated the Children to be CHINS.

       Accordingly, we affirm the trial court’s judgment.


[10]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-545 | August 14, 2019   Page 5 of 5
