MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                           Nov 23 2016, 10:42 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.


ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Robert J. Henke
                                                         James D. Boyer
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of: C.K., a Child                          November 23, 2016
Alleged to be in Need of                                 Court of Appeals Case No.
Services,                                                29A02-1603-JC-511
                                                         Appeal from the Hamilton Circuit
F.R. (Mother) and B.K. (Father),                         Court
Appellants-Respondents,                                  The Honorable Paul A. Felix,
                                                         Judge
        v.                                               The Honorable Todd L. Ruetz,
                                                         Magistrate
The Indiana Department of                                Trial Court Cause No.
Child Services,                                          29C01-1509-JC-1177
Appellee-Petitioner.



Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 1 of 33
[1]   F.R. (“Mother”) and B.K. (“Father,” and together with Mother, “Parents”)

      appeal the juvenile court’s order determining that C.K. was a child in need of

      services (“CHINS”). Parents raise one issue which we revise and restate as

      whether sufficient evidence supports the juvenile court’s determination that

      C.K. was a CHINS. We affirm.


                                      Facts and Procedural History

[2]   Mother and Father are the married, biological parents of C.K., born April 13,

      2015. Mother, age thirty-two, is an emergency room physician, and Father, age

      thirty-four, is an electrical engineer. On July 23, 2015, C.K. fell from a stroller

      while on a walk with his maternal grandmother, which resulted in cuts on the

      left side of his face around his forehead and hairline. C.K.’s grandmother

      called Mother about his condition, C.K. appeared normal when Mother

      observed him, and Mother reported the accident to C.K.’s pediatrician, who

      had no further concerns related to the fall from the stroller.


[3]   On August 18, 2015, Mother fed C.K. and, at around 8:00 p.m., Father put him

      to bed. During the night, C.K. awoke once at approximately 1:00 a.m., and

      again between 3:00 a.m. and 4:00 a.m. Mother woke and attended to him on

      both occasions and breastfed him for approximately fifteen minutes before he

      returned to sleep. At approximately 5:45 a.m. Father awakened, showered,

      heard C.K. crying, and, after changing C.K.’s diaper, brought him to Mother,

      who was still sleeping, at approximately 6:00 a.m. Mother began to breastfeed

      him, and during that time she stayed in bed with him, nursing him and sleeping

      intermittently until 7:00 a.m. Meanwhile, Father left for work at approximately
      Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 2 of 33
      6:30 a.m. Later that morning, Mother dropped C.K. off at the Goddard School

      at around 7:45 a.m. Danielle Mann, the lead teacher in the infant room, met

      Mother in the infant room that morning. Mann observed that C.K. seemed

      “[k]ind of normal,” but she also noticed that “[h]e didn’t really show a lot of

      expression or anything so.” Transcript at 217. Mann also noticed that C.K.

      “wasn’t really moving a lot,” that C.K. “was awake after [she] took him” but

      that he “looked a little sleepier,” and that he was not cooing or making noises at

      that time. Id. at 217-218.


[4]   After Mother left, Mann went to the area rug where the infants play, sat down

      with C.K. in her arms, and, while C.K. was in her arms, he “[j]ust laid there,”

      and she noticed that he did not make any movements with his arms or legs. Id.

      at 218. A short time later she “put him in the [M]amaRoo” because he “looked

      a little sleepy,” and she noted that he was awake when she placed him there.

      Id. at 219. She buckled him into the MamaRoo, which is “an electric swing

      that plugs into the wall and it cradles them like side-to-side,” and C.K.’s head

      rested in “a cup shape” portion of the swing. Id. at 220-221. The speed of the

      MamaRoo was not fast, a child’s head does not move from side to side, and

      children generally “don’t really move around in [the MamaRoo].” Id. at 222.

      Once C.K. was in the swing, Mann returned to playing with the other children

      and checked on C.K.’s breathing every five minutes. C.K. slept for about an

      hour when Mann noticed “a different breathing sound from him,” observed

      that he did not respond and did not open his eyes when she tapped him, and

      she continued tapping him and talking to him but he was still non-responsive.


      Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 3 of 33
      Id. at 223. She took him out of the MamaRoo and “held him against [her]” but

      his eyes were still not opening, and she went to the door and called for the

      Goddard School’s Director, Amy Lamb and Assistant Director, Emily Shafer.

      Id.


[5]   Mann, Lamb, and Shafer attempted to awaken C.K., but he was non-

      responsive. He was “still breathing,” but it was a “gaspier kind of breath.” Id.

      at 225. While Mann and Shafer were attending to C.K., Lamb called

      paramedics and Parents. Another parent, Amanda Born, an OB/GYN

      physician, was dropping off her children at Goddard and also attempted to

      rouse C.K. Dr. Born observed C.K. “lying on his back on the floor” while

      Mann and Shafer were trying to wake him up and that “he looked asleep” with

      “very, very poor tone, like he wasn’t - - like he was in a very deep sleep

      basically but not responding to stimuli.” Id. at 123.


[6]   Lamb contacted Father at 9:11 a.m., and he immediately attempted to contact

      Mother. Mother contacted Lamb at 9:20 a.m., and was informed by Lamb that

      paramedics had been called. Mother requested that C.K. be transported to

      Riley Children’s Hospital (“Riley”). Paramedics arrived, checked C.K.’s vital

      signs, observed that he was not responsive to painful stimuli, that his limbs were

      weak, and that his skin was cold and pale, and they decided to take C.K. to

      Indiana University North Hospital (“IU North”), which was the nearest

      hospital.




      Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 4 of 33
[7]   C.K. was taken to IU North where he underwent testing which showed

      intracranial hemorrhaging, and he was transferred to the emergency department

      at Riley. Mother joined C.K. in the ambulance ride to Riley, and he twice

      vomited the sugar water he had been given at IU North. At Riley, Dr. Daniel

      Fulkerson, a pediatric neurosurgeon, attended to C.K. and characterized his

      subdural hematomas as severe and noted that “any time we see somebody with

      a subdural hematoma that just by itself I think is, I would classify as severe.”

      Id. at 147. C.K. was observed with a bruise on the left side of his forehead, but

      there was no other evidence of fractures. C.K. spent three days in an intensive

      care room at Riley before he was transferred to a regular room for another four

      days. Tests revealed that he had subdural hematomas on both sides of his

      brain, which are collections of blood in the space between the brain and the

      skull, as well as hemorrhages to the retina of his right eye. Subdural

      hematomas are caused by a significant amount of force, either by impacting or

      striking the head, or the head is shaken with a significant and forceful back and

      forth movement. Retinal hemorrhages are often suspicious for a traumatic

      injury, but they also may be associated with non-accidental injuries or

      underlying conditions.


[8]   Dr. Ralph Hicks, a professor of clinical pediatrics at Riley who is board-certified

      in the subspecialty of child abuse pediatrics and a member of Riley’s child

      protection team, also evaluated C.K. and felt that his injuries “were suspicious

      for non-accidental trauma,” but he acknowledged that other possibilities

      included “an accidental event that had not yet been disclosed or an accidental


      Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 5 of 33
      event associated with a lapse of supervision, or an accidental event associated

      with neglect” which could have caused the injuries. Id. at 111. He explained

      that, if the cause of the injuries was an accident, “it would require a pretty

      forceful trauma to the head, some sort of significant impact to the head or the

      head impacting something.” Id. Dr. Hicks also noted that “it takes a significant

      amount of force to cause this type of injury” and that the force involved in

      C.K.’s injury was “not the type of force that, forces that are involved with

      bouncing a baby on one’s knee or your usual swings, baby infant swings or

      carriers. It’s much more than that.” Id. at 105.


[9]   That same day, the Department of Child Services (“DCS”) received a report

      from Dr. Hicks that C.K. experienced head trauma as well as injuries around

      his right eye. DCS assessor Shalissa Kutzleb and Carmel Police Detective

      Trent McIntyre conducted an investigation into the cause of C.K.’s head

      injuries. Detective McIntyre interviewed Parents with Kutzleb present at Riley

      during the afternoon of August 19, 2015. Mother stated to Detective McIntyre

      and Kutzleb that she had experienced “problems with [C.K.] sleeping within

      the last two weeks . . . where he had used to sleep through the night he was now

      getting up there or four times a night,” and Detective McIntyre was concerned

      with “the stressors in regard to [Mother] not sleeping and having problems with

      [C.K.] not sleeping,” and that Mother did not provide “a lot of details . . .

      between the time that she woke up and fed him and took him to school.” Id. at

      387-388. On August 26, 2015, Parents took a polygraph examination at the

      Carmel Police Department. Father passed the polygraph while Mother failed it


      Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 6 of 33
       based on her responses to whether she was involved with the injury that

       occurred to C.K. or if she injured C.K., and if she knew how C.K. was injured.

       When interviewing Mother at Riley, Detective McIntyre felt that Mother’s

       “statements in regard to the sleep is one of the bigger things that shows a motive

       behind some type of injury” and that after the interview he observed Mother

       “laughing and talking with somebody else there that knew her through work.

       So there was just not as much distress visible.” Id. at 421. Detective McIntyre

       informed DCS of the results of the polygraph, as well as his suspicion that

       Mother may have been involved in C.K.’s injuries based on the totality of his

       interaction with her.


[10]   On September 2, 2015, DCS requested to initiate a CHINS filing seeking

       approval to take custody of C.K, and filed its CHINS petition. The petition

       alleged that C.K. was found to be “lethargic and unresponsive while at the

       Goddard School” and that he had subdural hematomas on both sides of his

       head as well as hematomas/hemorrhages around his eyes. Appellants’

       Appendix at 42. The CHINS petition also alleged that the injuries were non-

       accidental and that Mother failed a polygraph examination regarding C.K.’s

       injuries. That same day, the juvenile court held a detention hearing, ordered

       C.K.’s detention and continued placement in the family home, permitted

       Mother to return to the home, and ordered that all of Mother’s contact with

       C.K. be supervised. The juvenile court held an initial hearing on September 17,

       2015, at which Parents denied the allegations contained in the CHINS petition.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 7 of 33
[11]   On October 13, 2015, Mother underwent psychological testing with Dr. Robin

       Kohli, which included the Minnesota Mulitphasic Personality Inventory,

       Parenting Stress Index, Adult Substance Subtle Screening Inventory, Child

       Abuse Potential Inventory, and the Rorschach Inkblot Test. Dr. Kohli had not

       reviewed any materials from DCS or other sources prior to her evaluation, and,

       based upon her assessment of Mother and Parents’ self-assessment, noted that

       Mother had previously experienced three panic attacks and experienced anxiety

       and depressive symptoms. Mother did not report to Dr. Kohli that C.K. had

       been having trouble sleeping. Dr. Kohli observed that Mother “appeared to

       process information slowly and carefully, resulting in slower responding on the

       objective personality tests that would otherwise be expected given her high level

       of intelligence.” Parents’ Exhibit W at 1. Dr. Kohli’s report noted that

       Mother’s responses to the questions indicated defensiveness and situational-

       related depression and anxiety, and that, although Mother did not fall into the

       risk factors of shaken baby syndrome, she noted that depression, stress, and a

       colicky or fussy child could be risk factors and could not definitively exclude

       Mother as a perpetrator.


[12]   On November 2, 16, and 30, 2015, the juvenile court held a fact-finding hearing

       at which it heard testimony and received exhibits consistent with the foregoing.

       On December 28, 2015, the court entered an order (“the Order”), which

       contained detailed findings of fact and conclusions of law, determining that

       C.K. was a CHINS under Ind. Code §§ 31-34-1-1 and 31-34-1-2. The Order

       also applied the rebuttable presumption statute, Ind. Code § 31-34-12-4.


       Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 8 of 33
[13]   On January 5, 2016, the guardian ad litem (“GAL”) filed a report for the

       dispositional hearing, and DCS filed a parental participation plan as to Mother

       and Father respectively. In the report, the GAL recommended that C.K.

       remain in the home with Mother and Father and that Mother have unrestricted

       visitation with C.K. Mother filed a petition for unsupervised visitation on

       February 4, 2016, and, the juvenile court held a dispositional hearing on

       February 22, 2016. The court entered a dispositional order on February 26,

       2016, and on March 29, 2016, DCS filed a motion to terminate jurisdiction and

       discharge the parties, which was granted on March 31, 2016.


                                                   Discussion

[14]   The issue is whether sufficient evidence supports the juvenile court’s

       determination that C.K. was a CHINS. In reviewing a juvenile court’s

       determination that a child is in need of services, we neither reweigh the

       evidence nor judge the credibility of the witnesses. In re S.D., 2 N.E.3d 1283,

       1286-1287 (Ind. 2014), reh’g denied. Instead, we consider only the evidence that

       supports the juvenile court’s decision and reasonable inferences drawn

       therefrom. Id. DCS is required to prove by a preponderance of the evidence

       that a child is a CHINS. In re A.H., 913 N.E.2d 303, 305 (Ind. Ct. App. 2009).

       When a court’s order contains specific findings of fact and conclusions of law,

       we engage in a two-tiered review. Id. First, we determine whether the evidence

       supports the findings. Id. Then, we determine whether the findings support the

       judgment. Id. We reverse the juvenile court’s judgment only if it is clearly

       erroneous. Id. A judgment is clearly erroneous if it is unsupported by the

       Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 9 of 33
       findings and conclusions. Id. When deciding whether the findings are clearly

       erroneous, we consider only the evidence and reasonable inferences therefrom

       that support the judgment. Id.


[15]   Ind. Code § 31-34-1-1 provides:

               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.


[16]   Ind. Code § 31-34-1-2(a) provides:

               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 health is seriously endangered
               due to injury by the act or omission of the child’s parent,
               guardian, or custodian; and


               (2) the child needs care, treatment, or rehabilitation that:

       Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 10 of 33
                       (A) the child is not receiving; and


                       (B) is unlikely to be provided or accepted without the
                       coercive intervention of the court.


[17]   Finally, Ind. Code § 31-34-12-4 provides:


               A rebuttable presumption is raised that the child is a child in need
               of services because of an act or omission of the child’s parent,
               guardian, or custodian if the state introduces competent evidence
               of probative value that:


               (1) the child has been injured;


               (2) at the time the child was injured, the parent, guardian, or
               custodian:


                       (A) had the care, custody, or control of the child; or


                       (B) had legal responsibility for the care, custody, or control
                       of the child;


               (3) the injury would not ordinarily be sustained except for the act
               or omission of a parent, guardian, or custodian; and


               (4) there is a reasonable probability that the injury was not
               accidental.


       The CHINS statute, however, does not require that a court wait until a tragedy

       occurs to intervene. In re A.H., 913 N.E.2d at 306. Rather, a child is a CHINS

       when he or she is endangered by parental action or inaction. Id. The purpose


       Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 11 of 33
       of a CHINS adjudication is not to punish the parents, but to protect the child.

       In re A.I., 825 N.E.2d 798, 805 (Ind. Ct. App. 2005), trans. denied.


[18]   Parents challenge Findings 10, 18-23, 25-32, 34-45, 47-48, 50-60, and 62-66 and

       Conclusions 1 and 3-9 of the Order. Parents also assert that the juvenile court

       erroneously applied the rebuttable presumption statute. DCS maintains that the

       evidence supports the findings, that the conclusions support the judgment, and

       that the Parents’ challenges to the findings and conclusions are a request to

       reweigh evidence. It argues that the juvenile court properly applied the

       rebuttable presumption statute, Parents did not rebut the presumption, their

       argument “misapprehend[s] the statute,” and that the juvenile court was

       entitled to weigh the evidence with respect to application of the rebuttable

       presumption statute. Appellee’s Brief at 29. In reply, Parents assert that DCS

       has waived its arguments on appeal, and that its failure to address their

       arguments leads to the conclusion that the standard of review should be prima

       facie error.


[19]   Parents challenge the following Findings and Conclusions of the Order:

               FINDINGS OF FACT:


                                                    *****


               10. When Mother handed [C.K.] to Ms. Mann, [C.K.] had his
               eyes open and appeared to be fully awake but Ms. Mann noted
               he also appeared sleepy and did not show a lot of expression.
               [C.K.] was responsive to Ms. Mann’s voice by looking at her, but
               he did not move or reach for her as normal and made no noise.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 12 of 33
        [C.K.] made no movements of his arms or legs. After Mother
        left, Ms. Mann sat down with [C.K.] on the floor holding [C.K.]
        in her arms. Although awake, [C.K.] continued to appear sleepy,
        his eyes closing then opening, so she put him in a baby swing to
        sleep. [C.K.] was placed in the swing about 15 minutes after
        Mother left the daycare. It was not uncommon for [C.K.] take
        such morning naps.


                                             *****


        18. [C.K.] also underwent numerous diagnostic tests ruling out,
        other than trauma, any indication of an underlying medical
        reason, condition or cause of [C.K.’s] injuries of subdural
        hematomas and retinal bleeding.


        19. The force causing [C.K.’s] injuries would be significant
        acceleration or deceleration or rotation of the head and would be
        from either something impacting or striking the head, the head
        striking something, or the head being shaken with significant
        back and forth movement. According to Dr. Hicks, the type of
        force needed to cause this type of injury was much more than the
        force involved in bouncing a child on ones [sic] knee or the
        typical baby swing. Dr. Fulkerson concurred with the finding
        that the subdural hematomas were caused by some type of
        abnormal motion and that said motion would have to be more
        than a rocking motion in a swing.


        20. The types of events that cause these injuries involve a
        significant amount of force which would be noticed by a
        reasonable caregiver.


        21. According to Dr. Hicks, the injury to [C.K.] was either due
        to non-accidental trauma, an accident without disclosure (one in
        which the caregiver was aware of the accident but failed to report


Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 13 of 33
        the accident), an accident due to neglect, or an accident due to
        lack of supervision.


        22. All four possibilities that Dr. Hicks presented as the possible
        cause of the injury to [C.K.] would only arise due to an act or
        omission of a caregiver. Nondisclosure of an accidental injury
        would fall under an omission of a caregiver as the expectation of
        a reasonable caregiver. In this circumstance, a reasonable
        caregiver would seek out medical care for [C.K.]. With [C.K.]
        being four months of age, and being of limited mobility, there is a
        reasonable probability that the injuries to [C.K.] were non-
        accidental in this case.


        23. Nothing unusual or abnormal happened at the daycare on
        August 19, 2015 that would have caused [C.K.’s] injuries.
        Nothing said by Ms. Mann or other daycare staff to Det.
        McIntyre gave him concern in his criminal investigation that any
        of them were the perpetrators of [C.K.’s] injuries.


                                             *****


        25. The exact time when [C.K.’s] injuries occurred cannot be
        precisely pinpointed. However, based on Dr. Hick’s [sic]
        experience he states a relative time frame for the injuries can be
        determined. Infants who have these types of injuries will develop
        symptoms very rapidly after the traumatic event and often
        symptoms are immediate. If not immediate, symptoms develop
        very quickly. These symptoms include a change in mental status
        demonstrated by a depreciation in their level of alertness, ability
        to make eye contact, and their response to stimuli. They may
        develop irritability, sleepiness, lethargy, even coma.


        26. The recognition of these symptoms from the onset of the
        trauma depends upon the severity of the injury. The symptoms
        can be more subtle and more difficult to recognize if the injury is

Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 14 of 33
        mild or moderate in degree. The significance of a moderate
        degree of severity is that the symptoms of such an injury may not
        be as immediately apparent as when an injury is more
        pronounced.


        27. There is a spectrum to determine the severity of such
        injuries. [C.K.’s] subdural hematomas were on the moderate
        degree in the severity spectrum based on the testimony of both
        Dr. Hicks and Dr. Fulkerson. In expanding on the classification
        of moderate, Dr. Fulkerson described [C.K.’s] subdural
        hematomas were not severe enough for immediate surgery but
        not minor pools of blood either.


        28. The emergency responders who examined [C.K.] at the
        daycare also classified his head injury as moderate, placing it as a
        10 on the Glasgow Coma Scale which falls into the severity
        category of a moderate head injury.


        29. While the change in breathing occurred approximately an
        hour after [C.K.] was left at the daycare there is evidence strongly
        suggesting other symptoms were, or had already been,
        demonstrated by [C.K.] when [C.K.] was exchanged from
        Mother to Ms. Mann. Dr. Hicks identified the typical symptoms
        for this type of head injury could include, alteration in mental
        status; sleepiness, lethargy or coma; irritability; difficulty feeding;
        vomiting; seizures or convulsions; or difficulty in moving arms
        and legs normally. Not all of the symptoms will necessarily
        occur immediately and those that do occur immediately may not
        be easily recognized as a symptom. Symptoms may be subtle or
        more difficult to recognize in moderate injuries, as in [C.K.’s]
        case, and symptoms may come on more gradually and develop
        into more severe symptoms later.


        30. There is evidence that at some point after the onset of
        symptoms [C.K.] vomited and may have, within a few days after

Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 15 of 33
        the injury, suffered a seizure. While these would be indicative
        that the symptoms were increasing in severity, they do not
        indicate that the head injury itself rose from the moderate
        category, as was identified by both Dr. Fulkerson and Dr. Hicks,
        to the severe category. As such, they are of little probative value
        in determining how severe or evident the symptoms would be at
        the time of the traumatic event itself.


        31. According to Dr. Hicks, two possible symptoms could be
        that a child appears sleepy and exhibits poor feeding, both of
        which were present in this case at the time [C.K.] was dropped
        off at daycare by Mother. Additionally, [C.K.] did not show
        much expression as [C.K.] was delivered by Mother to Ms.
        Mann. Although [C.K.] was responsive to Ms. Mann’s voice by
        looking at her, he did not move or reach for her as normal and
        made no noise. Moreover, [C.K.] made no movements of his
        arms or legs. [C.K.] then continued to appear sleepy, his eyes
        closing then opening, while being held by Ms. Mann.


        32. Further, the fact that the hour long feeding was noted as
        significant by Mother on the day the injury to [C.K.] was
        discovered, along with Mother’s own testimony that [C.K.] may
        not have been actually feeding the entire time, the Court finds
        that the hour long feeding on August 19, 2015 was more likely a
        result of [C.K.] having trouble feeding which the court finds to be
        a symptom of poor feeding.


                                             *****


        34. The Court finds Ms. Mann’s testimony in its entirety to be
        credible and consistent with previous statements she had given to
        Det. Trent McIntyre of the Carmel Police Department. Ms.
        Mann appeared to be forthright in her testimony including her
        acknowledgment that she allowed [C.K.] to continue sleeping in


Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 16 of 33
        the swing, contrary to the daycare’s policy, rather than placing
        [C.K.] in a crib after falling asleep.


        35. The court finds and that the greater weight of the evidence is
        that [C.K.] was injured prior to being left with Ms. Mann the
        morning of August 19, 2015 and Ms. Mann is not responsible for
        the injuries suffered by [C.K.].


        36. The greater weight of the evidence is that [C.K.’s] injuries
        occurred while in the care of Mother.


        37. Scans of [C.K.’s] subdural hematomas portrayed multiple
        densities with both acute (recent) bleeding and chronic (old)
        bleeding suggesting more than one event and different time
        frames for the occurrences causing the hematomas. The fact that
        a child of four months age suffers from one subdural hematoma
        is a risk factor for non-accidental trauma warranting a panoply of
        protocols, assessments and evaluations by the Riley child
        protection team. The fact that [C.K.’s] scans showed more than
        one subdural hematoma, suggesting more than once occasion of
        injury, heightens the level of concern for repetitive trauma to
        [C.K.].


        38. Dr. Sarah Hill, [C.K.’s] pediatrician, testified that one of the
        symptoms of a child suffering a head injury would be inadequate
        feeding. When questioned by counsel for parents, Dr. Hill
        testified that she would not expect a child who had suffered a
        brain injury to feed for an hour. However, Mother
        acknowledged that [C.K.] may have stopped and restarted
        feeding at times throughout the hour. Mother further stated that
        [C.K.] can typically get everything he needs as far as
        nourishment within fifteen minutes of feeding. The Court finds
        that there is a difference between a child actually feeding for an
        hour and for a child taking an hour to feed. The first implies


Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 17 of 33
        continued feeding, while the second suggests a child having
        trouble feeding.


        39. On the morning of August 19, 2015 Mother advised Ms.
        Mann that [C.K.] had taken an hour to eat that morning, which
        was twice as long as he usually took to feed. Under the
        circumstances presented, the court finds Mother was reporting an
        unusual event and difficulty with feeding, and as such, is a
        symptom of trauma to [C.K.].


        40. Mother was alone with [C.K.] on the morning of August 19,
        2015. On, August 18, 2015, the day prior to the incident, Mother
        nursed [C.K.] and Father put [C.K.] to bed between 7:00 p.m.
        and 8:00 p.m. Mother then went to bed about 8:45 p.m., later
        expressing to Detective McIntyre that she was very tired and had
        little sleep the night before on August 17, 2015. [C.K.] awoke at
        1:00 a.m. and again at 4:00 a.m. [in] the early morning hours of
        August 19, 2015 with Mother getting up to take care of and nurse
        [C.K.]. Each feeding occasion took about 15 minutes before
        laying [C.K.] back down to sleep. On August 19, 2015 [C.K.]
        then awoke again at about 5:45 a.m. at which time Father
        changed [C.K.] and left [C.K.] with Mother again to nurse.
        [C.K.] was awake, responsive[,] even smiling at Father at the
        time. Father left for work about 6:45 a.m. leaving [C.K.] in
        Mother’s care. Mother then delivered [C.K.] to daycare at 7:53
        a.m.


        41. While one symptom alone may not be enough to indicate
        that the injury to [C.K.] occurred prior to his being brought to the
        daycare that morning. The Court finds by a preponderance of
        the evidence that the cumulativeness of these symptoms, both
        before and at the time [C.K.] was brought to daycare,
        demonstrates that [C.K.] was more likely than not to have
        suffered the injury prior to his arrival at the daycare and was
        already in distress at the time of his arrival at the daycare.


Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 18 of 33
        42. Mother has also given inconsistent statements as to the lack
        of sleep for both her and [C.K.] around August 19, 2015. Mother
        reported that [C.K.] was a pretty good sleeper, easy to take care
        of and not fussy. She also testified that she had plenty of sleep
        the night of August 18, 2015. Yet on August 19, 2015, she told
        Det. McIntyre that she did not get much sleep on August 17,
        2015 that she had experienced recent problems with [C.K.’s]
        sleeping patterns. [C.K.] had been sleeping through the night,
        but was recently getting up 3 or 4 times a night. Mother
        described it as being a “nightmare” during this time. Mother told
        the detective that she had gotten up at least twice that night
        (August 18 through August 19, 2015) to feed [C.K.] which she
        described as normal feedings. Mother then stated that the next
        thing she knew Father awakened her to give her [C.K.] to feed in
        the morning when Father left for work. Mother tried to have
        [C.K.] lay with her so she could go back to sleep before work.
        Mother told the detective that pretty soon she realized that that
        was not going to happen and it would be another day of no sleep.
        Mother said [C.K.] was crying when she first got him that
        morning. Mother also talked to the detective about being
        stressed at work.


        43. Mother further told the detective that [C.K.] had fed
        normally that morning, which is inconsistent with what Mother
        told Ms. Mann earlier when Mother left [C.K.] at the daycare.


        44. When asked, Mother provided little detail to Detective
        McIntyre as to the morning events transpiring on August 19,
        2015 prior to her delivering [C.K.] to daycare.


        45. Details as simple as where Mother placed [C.K.] on the
        morning of August 19, 2015 changed over time. On August 19,
        2015, the day she was first interviewed by Det. McIntyre, Mother
        said that after feeding [C.K.], she placed [C.K.] in his swing.
        Days afterwards, while talking with her attorney, she recalled
        that she had left [C.K.] on the bed. The Court finds it is much
Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 19 of 33
        more likely that the details of an event are better recalled close to
        the timing of the event then it would be several days later.
        Moreover, placing [C.K.] in a swing would be inconsistent with
        the suggestions that [C.K.] may have sustained his injuries as a
        result of being placed in a swing at daycare, a suggestion made by
        [Parents] during the course of the proceeding.


                                             *****


        47. The Court finds that the multiple instances of conflict,
        alteration, and/or omission by Mother in her testimony and
        previous statements to others discredit her overall testimony.


        48. No one has come forward with details of actual events that
        caused the injuries to [C.K.]. [C.K.] suffered no accidents that
        would have caused the injuries.


                                             *****


        50. The court finds that the presumption of I.C. 31-34-12-4 has
        been raised by the state in this case by competent evidence of
        probative value that [C.K.] has suffered, as a result of non-
        accidental trauma, two subdural hematoma’s [sic] on the brain
        and retinal bleeding while in the care of [C.K.’s] parent and that
        the injuries would not ordinarily be sustained except for the act
        or omission of the parent.


        51. Evidence offered by way of video recording to suggest [C.K.]
        was asymptomatic at the time [C.K.] was delivered to daycare is
        not persuasive. The Court, having viewed the surveillance video
        as [C.K.] entered into the daycare on August 19, 2015, notes that
        [C.K.’s] eyes were open. Albeit, there was no observable
        movement of [C.K.’s] head, arms or legs to indicate any level of
        alertness. The Court also takes into consideration the testimony

Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 20 of 33
        of Dr. Hicks that simply because a child’s eyes are open does not
        necessarily mean that [C.K.] is alert. According to Dr. Hicks,
        when an individual sustains a brain injury, the eyes may remain
        open, but he may not be able to comprehend things.


        52. Mother’s interactions with and care for [C.K.] at the hospital
        after the injuries were sustained, as reflected in pastoral care
        notes, the psychological assessment, the social work report, and
        the release of information to DCS and the Carmel Police
        Department are not persuasive that Mother is not responsible for
        [C.K.’s] injuries. [Parents] point to observations within the
        medical records of Mother’s interaction with [C.K.] at the
        hospital after the injury occurred as indicative as to whether or
        not Mother caused the injury to [C.K.]. The fact that a parent is
        attentive to a Child’s needs after an injury, in and of itself, does
        not negate the possibility that the parent is responsible for the
        injury. In this same regard, the court notes that there is evidence
        of Mother being observed in the hospital laughing with a friend
        and/or acquaintance while [C.K.] is being treated for a traumatic
        brain injury. This demonstrates there may be no correlation
        between [C.K.’s] injury and the Mother’s emotions exhibited
        afterward.


        53. [Parents] present evidence that [C.K.] had fallen from a
        stroller on July 23, 2015 to suggest a cause of [C.K.’s] injuries
        observed on August 19, 2015. The court finds there is no nexus
        between this earlier fall and the later injuries based upon the
        testimony of Dr. Hicks. The court rules out this fall as a cause of
        [C.K.’s] injuries discovered on August 19, 2015.


        54. Dr. Daniel Fulkerson, the neurosurgeon who evaluated
        [C.K.] on August 19, 2015 and thereafter, believes there is some
        indication that [C.K.] may have had a predisposition to bleeding
        on the brain. He posited that [C.K.] had some enlarged extra-
        axial cerebrospinal fluid spaces (BEFI) that, by theory, may have
        predisposed [C.K.] to bleeding on the brain due to enlarged
Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 21 of 33
        spacing between the brain and skull. But, such a predisposition
        for bleeding by such a condition cannot be scientifically proven
        and such bleeding even with such a condition, according to Dr.
        Fulkerson, would still be the result of a traumatic event.
        Moreover, Dr. Hicks determined that the pattern of findings
        which [C.K.] presented would not be the same as expected with
        BEFI. The neuroradiologist, with whom Dr. Hicks consulted
        and with whom he reviewed [C.K.]’s scans, did not feel there
        was definite evidence for enlargement or widening between
        [C.K.’s] brain and skull to justify this position by Dr. Fulkerson.
        Notwithstanding, a BEFI condition would not account for the
        retinal hemorrhages according to Dr. Fulkerson. Retinal
        hemorrhages in infants and young children caused by trauma are
        unusual with accidental injuries and are more concerning for
        non-accidental injury. The court finds that Dr. Fulkerson’s
        opinion [C.K.] may have the BEFI condition does not outweigh
        the preponderance of the evidence presented by the state or rebut
        the presumption raised by the state.


        56. [Parents] hired a psychologist, Dr. Robin Kohli, to complete
        a psychological evaluation which was admitted into evidence as
        Defendant’s Exhibit W. In the evaluation, Dr. Kohli opines
        Mother “does not meet the research based evidence that is
        correlated with individuals who perpetrate non-accidental
        injuries against their infants” and “testing results did not suggest
        risk to reoffend.” The Court finds that the psychological
        evaluation was effectively discredited by DCS and should be
        relegated little probative value in Mother’s favor. On the
        contrary, the evaluation provides evidence of probative value that
        Mother suffers from stress increasing the likelihood that she is the
        perpetrator of [C.K.’s] injuries and fails to rebut the presumption
        raised by the state.


        a. Mother reports to Dr. Kohli that she has had, over a sustained
        time, numerous bouts of anxiety brought about by various
        stressors accompanied by lack of sleep. Stressful circumstances

Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 22 of 33
        and lack of sleep have been presented accompanying the
        occurrence of [C.K.’s] injuries. Mother was previously
        prescribed medication for anxiety, has stopped taking the
        medication, but still exhibits symptoms of anxiety.


        b. Mother failed to advise Dr. Kohli that she was experiencing
        difficulty with [C.K.’s] sleep patterns. She described [C.K.] as
        easy to care for and did not describe the circumstances leading up
        to [C.K.’s] injuries as a “nightmare” as she described to Det.
        McIntyre. Mother failed to inform Dr. Kohli that [C.K.] had not
        been sleeping well around the time of the injury, a fact which Dr.
        Kohli admitted may have made a difference in her assessment.


        c. Dr. Kohli relied only on information reported to her by
        Mother. She did not review any documentation by DCS or
        others.


        d. Dr. Kohli acknowledged during her testimony that the test
        results are subjective.


        e. By her own account, Dr. Kohli noted in the assessment that
        Mother’s “overly concerned response style may have limited the
        validity of the testing, as it was later observed that she presented
        with a defensive style on several of the tests. While none of the
        measures were invalidated by this response style, her excessive
        caution limited the utility of several of the tests.”


        f. Dr. Kohli noted within the psychological assessment that
        Mother’s responses to the Rohrshach Inkblot Test “suggested
        that she is currently under a fair amount of stress, which may
        impact her ability to cope with everyday stressors and events.
        She also tends to internalize her feelings, avoiding overt
        emotional expression.” Dr. Kohli testified that when a person
        internalizes their feelings, the person can have problems coping
        with those feelings.

Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 23 of 33
        g. As part of the psychological assessment, Dr. Kohli evaluated
        Mother in relation to Shaken Baby Syndrome by comparing
        Mother to several risk factors. Dr. Kohli acknowledged in her
        testimony that the risk factors she listed as definitive were in fact
        only suggestive in the research articles she relied upon in making
        her evaluation. She also acknowledged that her research articles
        noted research on such risk factors was woefully inadequate.


        h. Dr. Kohli further acknowledged that the research articles on
        which she relied indicated that infant shaking is much more
        likely to result from a moment of extreme stress and frustration,
        and takes the form of an unreasoned and impulsive act. In most
        cases, the shaking occurred by the perpetrator when they were
        alone caring for the child and where there were no witnesses and
        little or no evidence of ongoing abuse.


        i. Dr. Kohli opined that Mother met none of the known risk
        factors which would place her at risk for physically abusing
        [C.K.] through non-accidental infant trauma, despite previously
        listing findings of stress and depression in the assessment, which
        were two of the risk factors she listed.


        j. A third risk factor identified by Dr. Kohli, was when an infant
        has difficult temperament, is colicky or fussy, cries excessively, or
        [is] difficult to soothe. As noted previously, Mother chose not to
        disclose to Dr. Kohli that [C.K.] had not been sleeping well at the
        time of the injury and that it had been a “nightmare” as she
        disclosed to Det. McIntyre. To the contrary, Mother told Dr.
        Kohli that [C.K.] sleeps well and that he was an easy baby. Dr.
        Kohli acknowledged that if [C.K.] had been sleeping well, but
        then wasn’t, that would possibly be important.


        k. Dr. Kohli testified that she could not definitively exclude
        Mother as the perpetrator based on her assessment.


Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 24 of 33
        57. Mother points to her ability to handle stress in her
        occupation as an emergency room physician as proof that she, in
        a moment of extreme stress, would not harm [C.K.]. The court
        notes that during her evaluation, Dr. Kohli observed Mother
        “appeared to process information slowly and carefully, resulting
        in slower responding on the objective personality tests than
        would otherwise be expected given her high level of intelligence.”
        Dr. Kohli further states her impression that Mother’s overall
        testing results “also indicated a tendency to be indecisive and rely
        on others to make decisions.” The court finds that this behavior
        and characteristic difficult for a person in Mother’s position
        suggesting Mother’s ability to handle stressors at work may also
        be difficult for her or overcome with much effort.
        Notwithstanding, the Court finds Mother’s ability to handle
        stress at work is not compelling as to whether she harmed [C.K.].
        The court finds this evidence does not outweigh the evidence
        presented by the state and dos not rebut the presumption raised
        by the state.


        58. Based on the evidence presented and inconsistencies in
        Mother’s own statements, the Court finds by a preponderance of
        the evidence that the injuries to [C.K.] happened while in
        Mother’s care and [sic] were caused by an act or omission of
        Mother. Mother was alone with [C.K.] the morning of August
        19, 2015. Mother is the one person who has given inconsistent
        accounts at various times and to various people.


        59. The Court finds that the parents have not presented evidence
        sufficient to refute the rebuttable presumption raised by the state.


        60. [C.K.] is in need of services and the coercive intervention of
        the court is necessary to achieve those services. A Child and
        Family Team Meeting (CFTM) was held prior to September 1,
        2015. At the CFTM [Parents] initially expressed a willingness to
        participate in services provided by DCS. But, after DCS service
        referrals were made for parenting assessment(s), home based
Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 25 of 33
        services, and “first steps” for [C.K.], those services were
        ultimately rejected by the parents’ counsel. Those services would
        have provided an assessment of parenting techniques with
        possible further recommendations, home based services including
        parental assistance and childcare if needed, and evaluation of
        [C.K.’s] development due to the injuries suffered. [Parents] have
        not participated in any of the services which Ms. Lawson
        referred. Case closure is not recommended by DCS at this time
        due to the lack of provision and/or participation in these
        services.


                                             *****


        62. Diane Crider, Guardian ad Litem, testified that she has no
        safety concerns with Mother and [C.K.’s] safety. The court is not
        persuaded by the GAL’s testimony under the circumstances. Ms.
        Crider acknowledged that she was assigned to the case just prior
        to November 2, 2015. Since that time she has only been to the
        home three times, each time for one hour and has spent a total of
        less than three hours observing Mother with [C.K.].


        63. [C.K.] is at risk for additional injury if [C.K.] remains in the
        environment in which the injury occurred. While [C.K.] appears
        to be recovering from his injuries, any ongoing effects from the
        injuries may not be evident for many years, including possible
        development of seizures and possible delays in development that
        may not be discovered until [C.K.] is older.


        64. Mother admits that she has a history of anxiety including
        panic attacks. Mother continues to suffer from anxiety due to life
        stressors. As noted by Dr. Kohli, Mother was previously
        prescribed medication for anxiety, has stopped taking the
        medication, but still exhibits symptoms of anxiety.




Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 26 of 33
        65. Without adequately addressing the risk factors displayed by
        Mother, [C.K.’s] safety cannot be assured while in Mother’s care.


        66. Each enumerated paragraph above individually and
        cumulatively supports the found fact that [C.K.] is a Child in
        Need of Services.


                                             *****


        CONCLUSIONS OF LAW:


        1. This Court has jurisdiction over the parties and subject matter
        pursuant to Indiana Code 31-30-1-1(2) and Indiana Code 31-30-
        2-1.


                                             *****


        3. At the time [C.K.] was injured [Parents] had the care, custody
        or control of [C.K.]; or had the legal responsibility for the care,
        custody, or control of [C.K.].


        4. The injury would not ordinarily be sustained except for the act
        or omission of a parent, guardian or custodian.


        5. There is a reasonable probability that the injury was not
        accidental.


        6. Pursuant to IC 31-34-12-4 there is a rebuttable presumption
        that [C.K.] is a child in need of services because of an act or
        omission of [C.K.’s] parent, guardian or custodian. That
        presumption has not been rebutted by the evidence presented.




Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 27 of 33
                7. [C.K.] is a child in need of services as defined in IC 31-34-1-1
                in that his physical or mental condition is seriously impaired or
                seriously endangered as a result of the inability, refusal or neglect
                of his parent, guardian or custodian to provide him with
                necessary food, clothing, shelter, medical care, education or
                supervision.


                8. [C.K.] is a child in need of services as defined IC 31-34-1-2 in
                that [C.K.’s] physical or mental health was seriously endangered
                due to injury by the act or omission of [C.K.’s] parent, guardian
                or custodian.


                9. [C.K.] needs care, treatment or rehabilitation through
                providing services for [Parents] for the benefit and safety of
                [C.K.] and/or for [C.K.] that [C.K.] is not currently receiving
                and is unlikely to be provided or accepted without the coercive
                intervention of the court. These services are necessary to ensure
                that [C.K.] will not be further harmed.


       Appellants’ Appendix at 7-17.


[20]   The juvenile court based its CHINS determination on evidence that in August

       of 2015, C.K. suffered injuries while in Mother’s care, specifically, subdural

       hematomas and retinal hemorrhaging. Parents do not dispute that C.K.

       suffered these injuries which are consistent with a traumatic injury. The

       juvenile court held a three-day fact-finding hearing and was in the best position

       to evaluate the evidence that was presented. 1




       1
        Parents challenge findings related to sleepiness and lethargy as symptoms of a traumatic head injury. We
       note that Dr. Hicks testified that differentiating between sleepiness and lethargy “can be difficult to judge”
       based on the “significance or severity,” id. at 185, of the injury, but the court heard Dr. Hicks specifically

       Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016           Page 28 of 33
[21]   As to whether C.K. was showing symptoms of a head injury when he arrived at

       Goddard, Mother was alone with him for a little over an hour after Father left

       for work and prior to dropping him off at Goddard. Upon his arrival at

       Goddard Mann testified that C.K. “didn’t really show a lot of expression or

       anything so,” he “wasn’t really moving a lot,” he “was awake after [she] took

       him” but that he “looked a little sleepier,” and that he was not cooing or

       making noises. Transcript at 217-218. Dr. Hicks testified that symptoms of a

       head injury include:

                [A] change or alteration in the mental status so that the infant is
                not normal with respect to their level of alertness, ability to make
                eye contact, to respond, for example, by smiling if they’re at an
                age where they’re doing that. They may develop irritability, they
                may develop sleepiness or lethargy or even coma. They may
                have difficulty fee[d]ing, they may have vomiting. There might
                be seizures, convulsions. There may be difficulties or abnormal,
                abnormalities in the abilities to move the arms and legs normally.


       Id. at 114-115. Dr. Hicks characterized C.K.’s injuries “as moderate in degree

       because of his symptoms that he developed and the findings on his head

       imaging,” and that symptoms in a moderate injury “may be more subtle or

       more, a little more difficult to or challenging to recognize.” Id. at 115. The

       juvenile court also heard Dr. Hicks testify that symptoms “can be immediately

       severe, they can come on more gradually and then develop into severe distress




       testify that “sleepiness or lethargy” occur as symptoms of a traumatic head injury. Id. at 114. Aided by the
       expert medical testimony, the court was best positioned to weigh the evidence, judge the credibility of the
       witnesses, and determine whether C.K. was showing symptoms of a traumatic head injury.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016         Page 29 of 33
       later.” Id. at 203. Dr. Fulkerson testified that the acute blood on C.K.’s CT

       scan suggested that the trauma causing his injuries “happened within hours to

       days, maybe up to a week, but probably within a day or so.” Id. at 158.

       Detective McIntyre testified that Mother did not provide “any real interaction

       that she talked about other than just sitting him down while she got ready for

       work” in the time period prior to C.K.’s arrival at Goddard, and he testified

       that “newer parents will talk in a lot more detail about their interactions with

       babies.” Id. at 388. Detective McIntyre also testified that he “didn’t have

       concerns” regarding the sequence of events at Goddard based on the

       information he received from the Goddard employees during his investigation.

       Id. at 430. The record supports the juvenile court’s findings as to whether C.K.

       was demonstrating symptoms of a head injury on the morning of August 19,

       2015 and is supported by the evidence. Parents’ arguments are a request that

       we reweigh the evidence, which we cannot do.


[22]   As to the possible causes and medical impact of C.K.’s injuries, Doctor Hicks

       testified that “retinal hemorrhages that are due to, that are caused by trauma,

       particularly in infants and young children, are unusual with accidental head

       injuries. They’re more concerning for a non-accidental injury . . . .” Id. at 107.

       Dr. Hicks also testified that C.K.’s injuries “were suspicious for non-accidental

       trauma” but acknowledged that other possibilities included “an accidental event

       that had not yet been disclosed or an accidental event associated with a lapse of

       supervision, or an accidental event associated with neglect.” Id. at 111. He

       explained that if the cause of the injuries was an accident “it would require a


       Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 30 of 33
       pretty forceful trauma to the head, some sort of significant impact to the head or

       the head impacting something.” Id.


[23]   Dr. Fulkerson, who treated C.K. at Riley, explained that a subdural hematoma

       “is a severe event,” that it was possible C.K. suffered a seizure, and that a

       symptom for a seizure in a four-month old infant is unresponsiveness. Id. at

       147. Dr. Fulkerson also explained that C.K. appeared to have benign extra-

       axial fluid, and that, even with that condition, repetitive motion in a swing that

       goes side to side or up and down would not likely cause a re-bleed of an existing

       subdural hematoma. Dr. Fulkerson also explained that the MRI showed that

       C.K. suffered subdural hematomas of different densities which would “suggest

       changes in timeframe” and that the injuries were “moderate” but “worse than

       just a little tiny skoosh of blood.” Id. at 161. He added that the CT scan

       showed findings of both acute and chronic blood, that “[w]hen we see findings

       that would suggest there is multiple densities, in other words, suggesting

       multiple times, that is another thing that we think is a risk factor for non-

       accidental trauma,” id. at 162, and that multiple densities of the subdural fluid

       on the MRI and the CT scan caused him to “worry about multiple events”

       which may suggest “there is something repetitive going on and also again

       something that trips our concern for the child.” Id. at 165-166. With respect to

       the relationship between benign-extra axial fluid and the presence of retinal

       hemorrhaging, Dr. Fulkerson stated that “[j]ust BEFI in itself will not cause

       retinal hemorrhages” and that the presence retinal hemorrhaging raises the

       concern that it is caused by trauma. Id. at 173. The medical testimony related


       Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 31 of 33
       to the severity and possible causes of C.K.’s injuries is reflected in Findings 18-

       22, 25-32, 37, 38, 51, and 53-55, and Parents’ arguments are a request to

       reweigh the evidence, which we cannot do.


[24]   With respect to Parents’ argument that the juvenile court incorrectly applied the

       rebuttable presumption statute, we note that the juvenile court had before it

       sufficient evidence to establish that C.K. suffered injuries, that while he was in

       Mother’s care he was showing symptoms of a head injury upon his arrival at

       Goddard, that his injuries are of a type not ordinarily sustained except for an

       act or omission of a parent, and that the injuries were not accidental. Parents’

       argument requires us to reweigh the evidence the juvenile court had before it,

       and we cannot say that the court erred in applying the rebuttable presumption

       statute or that Parents presented sufficient evidence to rebut the presumption.

       See In re C.B., 865 N.E.2d 1068, 1073 (Ind. Ct. App. 2007) (holding that

       “[w]hile it is not certain whether Mother inflicted these injuries upon C.B.” the

       evidence presented raised the presumption under Ind. Code § 31-34-12-4 that

       C.B. was a CHINS), trans. denied.


[25]   With respect to Parents’ challenges to C.K.’s continued safety and Mother’s

       mental health, the court heard the testimony of C.K.’s GAL, who was assigned

       to the case in November 2015, and, despite her testimony that she did not have

       safety concerns with Mother being alone with C.K., concluded that the GAL

       had not spent sufficient time around the family to determine the safety of the

       home environment and chose not to give her testimony significant weight. The

       court also heard Dr. Kohli’s testimony and reviewed her report, which noted

       Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016   Page 32 of 33
       Mother’s defensive response style as well as her issues related to general

       anxiety. We cannot say that the juvenile court abused its discretion in failing to

       afford the same weight to the testimony of the GAL and to the testimony and

       report of Dr. Kohli as Parents urge this Court to do.


                                                     Conclusion

[26]   Based upon the foregoing, the juvenile court had before it sufficient evidence

       upon which it based its findings and conclusions. We conclude that the court

       properly applied Ind. Code § 31-34-12-4, and that its determination that C.K.

       was a CHINS under Ind. Code §§ 31-34-1-1 and -2 is supported by sufficient

       evidence. 2


[27]   For the foregoing reasons, we affirm the juvenile court’s determination.


[28]   Affirmed.


       Robb, J., and Mathias, J., concur.




       2
         To the extent Parents argue that the standard of review should be prima facie error because DCS has waived
       its arguments by failing to respond to their arguments, we find no merit in Parents’ contention.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016        Page 33 of 33
