MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              Dec 20 2016, 7:40 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 APPELLANTS                                 ATTORNEYS FOR APPELLEE
Debra S. Andry                                           Gregory F. Zoeller
Jennifer G. Schlegelmilch                                Attorney General of Indiana
Lawrence County Public Defender
Agency                                                   Robert J. Henke
Bedford, Indiana                                         James D. Boyer
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of J.M. (Minor                             December 20, 2016
Child),                                                  Court of Appeals Case No.
                                                         47A01-1606-JC-1299
Child in Need of Services,                               Appeal from the Lawrence Circuit
                                                         Court
          and,                                           The Honorable Andrea K.
                                                         McCord, Judge
S.M. (Mother) and J.M.                                   The Honorable John M. Plummer,
(Father),                                                III, Referee
                                                         Trial Court Cause No.
Appellants-Respondents,                                  47C01-1601-JC-1




Court of Appeals of Indiana | Memorandum Decision 47A01-1606-JC-1299 | December 20, 2016    Page 1 of 10
              v.

      Indiana Department of Child
      Services,
      Appellee-Petitioner.




      Barnes, Judge.


                                             Case Summary
[1]   S.M. (“Mother”) and Ja.M. (“Father”) (collectively, “Parents”) appeal the trial

      court’s order finding their daughter, J.M., to be a child in need of services

      (“CHINS”). We affirm.


                                                    Issues
[2]   Parents raise two issues, which we restate as:


                      I.       whether the trial court abused its discretion by
                               admitting evidence concerning the earlier
                               CHINS proceeding regarding Mother’s
                               daughter, J.B.; and

                      II.      whether the evidence is sufficient to prove
                               J.M. is a CHINS.




      Court of Appeals of Indiana | Memorandum Decision 47A01-1606-JC-1299 | December 20, 2016   Page 2 of 10
                                                     Facts
[3]   On July 27, 2015, the Department of Child Services (“DCS”) removed nine-

      year-old J.B. from the care of Parents due to physical abuse. Father is her step-

      father.1 DCS filed a CHINS petition, which alleged:

                 [J.B.] suffered injuries to her eyes, which appeared to be
                 consistent with inflicted injuries. [Parents] were the only
                 caregivers present when the injury occurred. [J.B.] has had past
                 inflicted bruising and disclosed to her grandmother that [Father]
                 hit her. [Parents] both admitted to “popping” [J.B.] multiple
                 times on the head and that [Father] continued “popping” her
                 when [J.B.] got into a “fetal position.” [Father] also admitted to
                 making [J.B.] do “situps,” while holding her wrists and banging
                 her head off the ground.


      State’s Ex. 1 p. 1. DCS referred Parents for home based services, but Parents

      were not compliant. During October and November 2015, they left six

      meetings early, and in December 2015, they failed to attend any meetings.

      Father failed to attend supervised visits with J.B. on October 30, 2015, and

      November 15, 2015, and Parents canceled their visit on November 20, 2015. A

      fact-finding hearing was scheduled for January 8, 2016.


[4]   On December 31, 2015, J.M. was born to Parents, and DCS immediately

      removed her from Parents’ care. DCS filed a CHINS petition regarding J.M.

      on January 4, 2016, and alleged that a CHINS petition had been filed regarding




      1
          J.B.’s biological father is deceased.


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      J.B., that Parents had been non-compliant with services, and that the

      environment in Parents’ home endangered J.M.’s physical and emotional well-

      being.


[5]   During a meeting on January 25, 2016, to discuss Parents’ participation in

      services in J.B.’s CHINS action, Father became angry and beat his fist on the

      table. Father said that he did not have anger issues, that he did not need

      services, and that he would not participate in them unless ordered to do so.

      During the meeting, Mother agreed with Father and was “vocal.” Tr. p. 55.

      They were “both visibly upset.” Id.


[6]   On February 10, 2016, the trial court entered an order finding that J.B. was a

      CHINS. The trial court found:

               [J.B.’s] health and safety was seriously endangered as the result
               of physical abuse and neglect. The evidence reveals that [J.B.],
               nine years old at the time of the fact finding hearing, has serious
               emotional issues which [Parents] are not able to properly address
               without the coercive intervention of the Court. [Parents] have
               admitted to hitting [J.B.] in the face when she misbehaves.
               [Father] admitted that he has smacked [J.B.] in the mouth
               multiple times as she tried to protect her face with her arms and
               as she got into the fetal position. [J.B.] has sustained significant
               bruising that was likely caused by physical abuse. [Father] has
               anger management problems that he needs to address with a
               professional and which have not been sought prior to DCS and
               court intervention. [J.B.] is behind in school because she has
               never had a formal education. Only after [J.B.] was removed
               from parental care by DCS did [J.B.] become enrolled in a formal
               school setting.



      Court of Appeals of Indiana | Memorandum Decision 47A01-1606-JC-1299 | December 20, 2016   Page 4 of 10
      State’s Ex. 3 p. 5. After J.B.’s adjudication as a CHINS, Parents started to

      participate more in their services.


[7]   A fact-finding hearing regarding J.M.’s CHINS action was held on March 4,

      2016. Parents objected to the admission of evidence regarding J.B.’s CHINS

      action, but the trial court overruled the objection. The trial court granted

      DCS’s CHINS petition regarding J.M. and found:


              DCS has proved by a preponderance of the evidence that
              pursuant to I.C. 31-34-1-1, [J.M.], born December 31, 2015, is a
              child [in] need of services as alleged in the petition. [J.M.’s]
              physical or mental condition is seriously impaired or seriously
              endangered as a result of evidence supporting and surrounding
              the parents’ prior and current involvement with DCS in the case
              regarding [J.M.’s] half-sibling, [J.B.]. [J.B.] remains removed
              from parental care as a result of the likelihood that she was
              physically abused by Mother and [Father]. The acts and
              omissions by [Parents] with regard to [J.M.’s] older sibling,
              created a CHINS condition for [J.M.] (i.e. are detrimental to the
              well-being of [J.M.]), which the Court has serious concerns that
              such actions and conditions have not been fully remedied, and
              will not be, in the absence of Court intervention.


              If the Court is unable to ensure the safety of [J.M.’s] older half-
              sibling while in parental care due to the likelihood of physical
              abuse perpetrated against her by [Parents], then it would be
              absurd for the Court to find that [J.M.], an infant, would be safe
              from abuse in the home. The Court has the same safety concerns
              for [J.M.] as it has in the active CHINS cases [sic] regarding
              [J.B.]. The Court has additional concern for [J.M.] in that unlike
              her older half-sibling, [J.M.] is non-verbal, incapable of
              communicating inappropriate adult behavior.



      Court of Appeals of Indiana | Memorandum Decision 47A01-1606-JC-1299 | December 20, 2016   Page 5 of 10
              DCS has proved by a preponderance of the evidence that [J.M.]
              needs care that is unlikely to be provided or accepted without the
              coercive intervention of the Court. Although now participating
              in services, Mother and Father have previously made statements
              and have acted in ways which indicate that they believe the
              services provided to them are unnecessary.


              For these reasons, the Court finds that it is in the best interests of
              [J.M.] that the Court adjudicate her a [CHINS].


      Appellants’ App. Vol. II pp. 37-38. Parents now appeal.


                                                  Analysis
                                         I. Admission of Evidence

[8]   Parents argue that the trial court abused its discretion by admitting evidence of

      J.B.’s CHINS action during J.M.’s CHINS fact-finding hearing. We review a

      trial court’s admission or exclusion of evidence for an abuse of discretion. In re

      Des.B., 2 N.E.3d 828, 834 (Ind. Ct. App. 2014). A trial court abuses its

      discretion only if its decision is clearly against the logic and effect of the facts

      and circumstances before the court. Id.


[9]   Parents argue that the trial court should not have admitted evidence concerning

      J.B.’s CHINS action. Specifically, Parents contend that the trial court should

      not have admitted the CHINS petition, order on detention hearing, and order

      on the fact-finding hearing in J.B.’s case. Parents argue that the evidence was

      “extremely prejudicial” and only involved a single incident that “was neither




      Court of Appeals of Indiana | Memorandum Decision 47A01-1606-JC-1299 | December 20, 2016   Page 6 of 10
       close in time nor sufficient to establish character of the parents as to how

       Mother or Father would treat a newborn.” Appellant’s Br. p. 18.


[10]   Indiana Code Section 31-34-12-5 provides that such evidence is admissible in

       CHINS actions:


               Evidence that a prior or subsequent act or omission by a parent,
               guardian, or custodian injured or neglected a child is admissible
               in proceedings alleging that a child is a child in need of services
               to show the following:


               (1) Intent, guilty knowledge, the absence of mistake or accident,
               identification, the existence of a common scheme or plan, or
               other similar purposes.


               (2) A likelihood that the act or omission of the parent, guardian,
               or custodian is responsible for the child’s current injury or
               condition.


       Ind. Code § 31-34-12-5 (formerly Ind. Code § 31-6-7-13 (repealed by Pub. L.

       No. 1-1997, § 157 (eff. July 1, 1997)). We have held that this statute allows

       “evidence in CHINS proceedings of a parent’s prior acts or omissions toward

       his children in conjunction with subsequent injuries sustained by another child

       in the parent’s care.” Matter of J.L.V., Jr., 667 N.E.2d 186, 190 (Ind. Ct. App.

       1996) (discussing the prior version of the statute). Further, “[t]he standards set

       forth in [the CHINS statutes] contemplate that a parent’s past, present, and

       future ability to provide sufficient care for his or her child forms the basis for a

       CHINS adjudication and that the parent’s character is an integral part of

       assessing that ability.” Id. Consequently, the evidence of J.B.’s CHINS action

       Court of Appeals of Indiana | Memorandum Decision 47A01-1606-JC-1299 | December 20, 2016   Page 7 of 10
       was admissible to show Parents’ character and ability to care for J.M. The trial

       court properly admitted the evidence concerning J.B.’s CHINS action.


                                                 II. Sufficiency

[11]   Parents next challenge the trial court’s finding that J.M. is a CHINS. “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 K.D., 962 N.E.2d 1249, 1253 (Ind. 2012) (quoting In re

       N.E., 919 N.E.2d 102, 105 (Ind. 2010)). We neither reweigh the evidence nor

       judge the credibility of the witnesses. Id. 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.


[12]   “There are three elements DCS must prove for a juvenile court to adjudicate a

       child a CHINS.” Id. DCS must first prove the child is under the age of

       eighteen. Id. DCS must then prove that at least one of eleven different

       statutory circumstances exists that would make the child a CHINS. Id. 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.” Id.


[13]   Here, the trial court found J.M. to be a CHINS based on Indiana Code Section

       31-34-1-1, which provides:



       Court of Appeals of Indiana | Memorandum Decision 47A01-1606-JC-1299 | December 20, 2016   Page 8 of 10
               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.


[14]   Parents argue that DCS failed to present evidence that their actions or inaction

       seriously endangered J.M., that they were meeting J.M.’s needs before she was

       removed, and that coercive intervention of the trial court in J.M.’s case was

       unnecessary. According to Parents, they were appropriately caring for J.M.

       after her birth, and the CHINS finding was based solely on the prior CHINS

       finding regarding J.B.


[15]   Parents’ argument that they were properly caring for J.M. is merely a request to

       reweigh the evidence, which we cannot do. We have held that the trial court

       properly admitted evidence of J.B.’s CHINS action, which was pending a fact-

       finding hearing at the time of J.M.’s birth. J.B.’s CHINS action was based

       primarily on Parents’ physical abuse of J.B. At the time of J.M.’s birth, Parents

       Court of Appeals of Indiana | Memorandum Decision 47A01-1606-JC-1299 | December 20, 2016   Page 9 of 10
       were refusing to participate in services, and it was evident that Father’s anger

       issues persisted. Parents began participating in the services only after J.B. was

       found to be a CHINS and parents were ordered to do so. At the time of J.M.’s

       CHINS fact-finding hearing, Parents had only been participating in services for

       a short time, and much more progress was necessary. Given the physical abuse

       of J.B., Parents’ earlier lack of cooperation, and Father’s continuing anger

       issues, the trial court properly found J.M. to be a CHINS.


                                                 Conclusion
[16]   The trial court properly concluded that J.M. is a CHINS. We affirm.


[17]   Affirmed.


       Kirsch, J., and Robb, J., concur.




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