MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                              May 13 2020, 9:14 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
Justin D. Roddye                                         Curtis T. Hill, Jr.
Quinton M. White                                         Attorney General of Indiana
Monroe County Public Defender’s                          Katherine A. Cornelius
Office                                                   Deputy Attorney General
Bloomington, Indiana                                     Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of Ki.H. (Minor                            May 13, 2020
Child), A Child in Need of                               Court of Appeals Case No.
Services;                                                19A-JC-2725
K.H. (Father),                                           Appeal from the Monroe Circuit
                                                         Court
Appellant-Respondent,
                                                         The Honorable Stephen R. Galvin,
        v.                                               Judge
                                                         Trial Court Cause No.
The Indiana Department of                                53C07-1906-JC-326
Child Services,
Appellee-Petitioner.



Pyle, Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-JC-2725 | May 13, 2020                    Page 1 of 15
                                       Statement of the Case
[1]   K.H. (“Father”) appeals the trial court’s order adjudicating his son, Ki.H.

      (“Ki.H.”), to be a Child in Need of Services (“CHINS”). Father specifically

      argues that there is insufficient evidence to support the adjudication and that

      the trial court abused its discretion when it ordered him to: (1) complete a

      substance abuse assessment; (2) follow all recommendations in the assessment;

      and (3) submit to random drug and alcohol screens. Concluding that the

      Indiana Department of Child Services (“DCS”) presented sufficient evidence to

      support the CHINS adjudication and that the trial court did not abuse its

      discretion, we affirm the trial court’s order.


[2]   We affirm.


                                                    Issues
              1.       Whether there is sufficient evidence to support the CHINS
                       adjudication.


              2.       Whether the trial court abused its discretion.


                                                     Facts
[3]   The evidence most favorable to the CHINS adjudication reveals that Father and

      N.D. (“Mother”) were married in 2013. Ki.H. was born in February 2018. In

      April 2018, Father threatened to kill Mother in front of Ki.H. when she told

      Father that she was going to file a dissolution petition. Mother filed the petition

      but dismissed it three weeks later. In April or May 2018, while Mother was still


      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2725 | May 13, 2020   Page 2 of 15
      on maternity leave, Father became angry and grabbed the back of Mother’s hair

      while she was holding Ki.H. Mother filed a second dissolution petition in

      January 2019. The trial court appointed Guardian Ad Litem Melissa

      Richardson (“GAL Richardson”) to the dissolution case in April 2019.


[4]   In June 2019, during the pendency of the dissolution proceedings, Father

      picked up Ki.H. from Mother’s home on a Saturday morning for weekend

      parenting time. When Mother picked up her sixteen-month-old son from

      Father the following Monday afternoon, Mother noticed that “something was

      off” with Ki.H. (Tr. Vol. 2 at 19). When Mother got into the back seat of her

      car with Ki.H., he put his head on her chest and would not let her put him in

      his car seat. Mother “just assumed he was tired and he missed [her], just from

      being gone all weekend. So, [she] just held him, and [she] said, you know,

      we’ll stay here, we’ll just, you know, mommy will hold you, just we’ll stay here

      all day if [we] have to.” (Tr. Vol. 2 at 19).


[5]   While Mother was holding Ki.H., Father told her that he had noticed bruises

      on Ki.H.’s buttocks that morning. Father further told Mother that he had taken

      Ki.H. to a water park the previous day and that the bruises had probably been

      caused by a water slide. When Mother returned home and changed Ki.H.’s

      diaper, Mother noticed that Ki.H. had substantial bruising on his buttocks.

      Mother sent photos of the bruises to GAL Richardson, who told Mother to

      immediately seek medical attention for Ki.H.




      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2725 | May 13, 2020   Page 3 of 15
[6]   Mother took Ki.H. to a clinic where he was examined by Dr. David Esarey

      (“Dr. Esarey”), a pediatrician with more than thirty years of experience. Dr.

      Esarey noticed multiple bruises on Ki.H.’s buttocks. The first bruise “r[an]

      across transversally covering both buttocks.” (Tr. Vol. 2 at 53). Dr. Esarey also

      noticed a large more diffused bruise on Ki.H.’s left buttocks cheek, and another

      small bruise on the child’s right buttocks cheek. The doctor did not believe the

      bruises could have been caused by a water slide. Rather, according to Dr.

      Esarey, “it would [have] take[n] a significant blow” to cause the bruises, which

      were “consistent with physical injury.” (Tr. Vol. 2 at 50, 51). Dr. Esarey

      contacted DCS to report the bruises.


[7]   Shortly thereafter, DCS contacted Dr. Ralph Hicks (“Dr. Hicks”), a Riley

      Hospital pediatrician with more than thirty years of experience. Dr. Hicks,

      who has a subspecialty in child abuse pediatrics, reviews the records of possible

      child abuse victims pursuant to a collaborative effort between Riley Hospital

      and DCS. Dr. Hicks reviewed DCS’ report, Dr. Esarey’s report, and some

      digital photographs of Ki.H.’s buttocks. According to Dr. Hicks, the

      photographs were clear, and he was able to “appreciate the findings” when

      comparing the photographs to Dr. Esarey’s report. (Tr. Vol. 2 at 65). In the

      photographs, Dr. Hicks noticed linear diffused bruises on Ki.H.’s buttocks. In

      Dr. Hicks’ opinion, the linear marks revealed pattern bruising, which indicated

      an impact to Ki.H.’s buttocks by an object that had the same pattern. Dr. Hicks

      reported that he would not have expected to see this degree of bruising from a




      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2725 | May 13, 2020   Page 4 of 15
      water slide. Rather, Dr. Hicks opined that the bruises were consistent with

      “inflicted, non-accidental trauma.” (Tr. Vol. 2 at 68).


[8]   A few days later, DCS filed a petition alleging that Ki.H. was a CHINS.

      Doctors Esarey and Hicks both testified at the August 2019 CHINS hearing,

      and photographs of Ki.H.’s bruises were admitted into evidence. In addition,

      Mother testified that she and Father had a more than ten-year history of

      domestic violence. According to Mother, Father had previously slammed her

      head through the living room wall and against a counter, pushed her down the

      stairs, locked her in a bathroom for several hours, and choked her in front of her

      older son. Mother testified that police had been dispatched to her home at least

      six times for domestic violence incidents involving Father.


[9]   Mother also described an incident that had occurred in March 2019 when

      Father was at Mother’s home. According to Mother, Father found a soap

      dispenser with the letter “D” on it in Mother’s bathroom. Father, who was

      holding thirteen-month-old Ki.H., began to shout male names beginning with

      “D.” When Ki.H. tried to repeat the names, Father became extremely angry

      and told Ki.H., “if you say his name, I’ll kill you and I’ll kill her.” (Tr. Vol. 2 at

      17). Mother further testified that she had smelled marijuana on both Ki.H. and

      Father several times in 2019 when Father had returned Ki.H. from visits.

      According to Mother, when she confronted Father, he told her that he was not

      going to stop smoking marijuana. Mother had three recent protective orders

      issued against Father, one in 2018 and two in 2019. However, she had

      subsequently dismissed them all.

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2725 | May 13, 2020   Page 5 of 15
[10]   GAL Richardson, who had been appointed to the CHINS case as well as the

       dissolution case, testified that Father had previously told her that he and his

       attorney had met with a doctor who had opined that Ki.H.’s bruises could have

       been cause by a water slide. According to GAL Richardson, she later learned

       that Father’s statements were untrue.


[11]   Father also testified at the hearing. He admitted that he had had sole care of

       Ki.H. during the weekend that the bruises had appeared; however, he denied

       spanking Ki.H. Rather, Father testified that the bruises on Ki.H.’s buttocks had

       resulted from a water park slide. Father further testified that Ki.H. had

       probably been “clinging to” Mother in the backseat of her car because he did

       not want to get into his car seat. (Tr. Vol. 2 at 178). In addition, Father denied

       that law enforcement had been called to six domestic violence incidents with

       Mother. Father also denied smoking marijuana in the presence of Ki.H. and

       explained that he had stopped smoking marijuana in March 2019 after his “first

       altercation with the DCS people.” (Tr. Vol. 2 at 166).


[12]   In October 2019, the trial court, which specifically did “not accept [Father’s]

       testimony as accurate or truthful,” (App. Vol. 2 at 21), issued an order

       adjudicating Ki.H. to be a CHINS pursuant to INDIANA CODE § 31-34-12-4.

       This statute sets forth a rebuttable presumption that a child is a CHINS if: (1)

       the child is injured; (2) the injury occurs while the child is in the care of his

       parent; (3) the injury would not ordinarily be sustained except for the parent’s

       act or omission; and (4) there is a reasonable probability that the injury was not



       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2725 | May 13, 2020   Page 6 of 15
       accidental. Here, the trial court determined as follows in support of the

       adjudication:


               22. Witnesses agree that there were no bruises on [Ki.H] when he
               began his visit with [Father]. [Father] admits that [Ki.H.] was
               always in his care throughout the weekend of June 15-17. No
               other individual supervised [Ki.H.]. Dr. Esarey and Dr. Hicks
               agree that the bruising to [Ki.H.] is inflicted trauma. [Father] has
               offered no substantial evidence to rebut the presumption that
               [Ki.H.] is a Child in Need of Services.


       (App. Vol. 2 at 21).


[13]   The trial court also concluded that, “[i]n light of the injuries to [Ki.H.],

       [Father]’s denial of responsibility, and [Mother]’s ongoing pattern of failing to

       protect herself and her children from [Father]’s acts of domestic violence, the

       coercive intervention of the court is clearly necessary to protect the health and

       safety of [Ki.H.]” (App. Vol. 2 at 21).


[14]   At the late October 2019 dispositional hearing, Mother requested that the

       requirements that she submit to a substance abuse assessment and submit

       random drug screens be removed from the proposed dispositional decree. In

       support of her request, she pointed out “there [was] no indication [in the record]

       that substance abuse or alcohol use ha[d] been an issue [for her] in this matter.”

       (Tr. Vol. 2 at 198). After discussing the matter with the parties, the trial court

       granted Mother’s request. Thereafter, Father’s counsel explained as follows to

       the trial court: “My client is insisting that I also request he also be relieved of

       all obligations number 19 and 20, the substance test, and undergo random

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2725 | May 13, 2020   Page 7 of 15
       screening, he’s tested clean ever since he’s been screened since March. He’s

       asking to be relieved of that, as [Mother] was as well.” (Tr. Vol. 2 at 203-04).

       The trial court denied Father’s request and issued a dispositional order that

       required Father to: (1) complete a substance abuse assessment; (2) follow all

       recommendations in the assessment; and (3) submit to random drug and

       alcohol screens.


[15]   Father now appeals the trial court’s adjudication that Ki.H. is a CHINS as well

       as the trial court’s dispositional order.


                                                   Decision
[16]   Father contends that there is insufficient evidence to support the CHINS

       adjudication and that the trial court abused its discretion when it ordered him

       to: (1) complete a substance abuse assessment; (2) follow all recommendations

       in the assessment; and (3) submit to random drug and alcohol screens. We

       address each of his contentions in turn.


       1. Sufficiency of the Evidence


[17]   Father first argues that there is insufficient evidence to support the CHINS

       adjudication. A CHINS adjudication focuses on the child’s condition rather

       than the parent’s culpability. In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). The

       purpose of a CHINS adjudication is to provide proper services for the benefit of

       the child, not to punish the parent. Id. at 106. A CHINS adjudication in no

       way challenges the general competency of parents to continue relationships

       with their children. Id. at 105. A CHINS proceeding is a civil action. Id.
       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2725 | May 13, 2020   Page 8 of 15
       Therefore, DCS must prove by a preponderance of the evidence that the child is

       a CHINS as defined by the juvenile code. Id.


[18]   When determining whether there is sufficient evidence to support a CHINS

       determination, we consider only the evidence most favorable to the judgment

       and the reasonable inferences to be drawn therefrom. In re S.D., 2 N.E.3d 1283,

       1287 (Ind. 2014). This Court will not reweigh the evidence or reassess the

       credibility of the witnesses. Id. at 1286. Where, as here, a juvenile court’s order

       contains specific findings of fact and conclusions of law, we engage in a two-

       tiered review. In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014). First, we

       determine whether the evidence supports the findings, and then, we determine

       whether the findings support the judgment. Id. Findings are clearly erroneous

       when there are no facts or inferences to be drawn therefrom that support them.

       Id. A judgment is clearly erroneous if the findings do not support the juvenile

       court’s conclusions or the conclusions do not support the resulting judgment.

       Id. We further note that, as a general rule, appellate courts grant latitude and

       deference to trial courts in family law matters. Matter of D.P., 72 N.E.3d 976,

       980 (Ind. Ct. App. 2017). “This deference recognizes a trial court’s unique

       ability to see the witnesses, observe their demeanor, and scrutinize their

       testimony, as opposed to this court’s only being able to review a cold transcript

       of the record.” Id.


[19]   The Indiana Supreme Court has explained that INDIANA CODE §§ 31-34-1-1

       through 31-34-1-11 specify the elements that DCS must prove in order to

       establish that a child is in need of services. In re N.E., 919 N.E.2d at 105.

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2725 | May 13, 2020   Page 9 of 15
       Specifically, DCS must prove that: (1) the child is under the age of eighteen; (2)

       one or more particular set or sets of circumstances set forth in the statute exists;

       and (3) the care, treatment, or rehabilitation needed to address those

       circumstances is unlikely to be provided or accepted without the coercive

       intervention of the court. Id.


[20]   For example, to establish that a child is a CHINS under INDIANA CODE § 31-

       34-1-1, DCS must prove the following set of circumstances: “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[.]” N.E., 919 N.E.2d at 105 (citing I.C § 31-34-

       1-1). This statute has been referred to as the “neglect statute.” In re D.F., 83

       N.E.3d 789, 795 (Ind. Ct. App. 2017) (citing In re Ju.L., 952 N.E.2d 771, 777

       n.4 (Ind. Ct. App. 2011)).


[21]   Similarly, under INDIANA CODE § 31-34-1-2, DSC must prove that “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[.]” This statute has been

       referred to as the “abuse statute.” In re D.F., 83 N.E.3d 789, 795 (Ind. Ct. App.

       2017) (citing In re Ju.L., 952 N.E.2d 771, 777 n.4 (Ind. Ct. App. 2011).


[22]   Further, a third way that DCS can allege and prove that a child is a CHINS is

       pursuant to INDIANA CODE § 31-34-12-4, which provides in relevant part as

       follows:


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2725 | May 13, 2020   Page 10 of 15
               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.

       This statute has been referred to as the “presumption statute.” In re D.F., 83

       N.E.3d at 795.


[23]   In Ind. Dep’t of Child Servs. v J.D., 77 N.E.3d 801, 807 (Ind. Ct. App. 2017), trans.

       denied, this Court further explained the purpose of INDIANA CODE § 31-34-12-4

       as follows:


               The purpose of the Presumption Statute is clear. In cases where
               a child has injuries that suggest neglect or abuse, it shifts the
               burden to the party most likely to have knowledge of the cause of
               the injuries – the parent, guardian, or custodian – to produce
               evidence rebutting the presumption that the child is a CHINS.
               The importance of the Presumption Statute is underscored in
               cases . . . where the injured child is too young to speak for
               himself.


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2725 | May 13, 2020   Page 11 of 15
[24]   Here, DCS alleged that Ki.H. was a CHINS under all three statutes. The trial

       court based its adjudication on I.C. § 31-34-12-4, the presumption statute.

       Father argues that there is insufficient evidence to support the CHINS

       adjudication. Specifically, he first argues that the “rebuttable presumption

       found in I.C. § 31-34-12-4 must be read in conjunction with I.C. § 31-34-1-1 and

       -2[,]” which require a showing of serious endangerment or impairment.

       (Father’s Br. 18). According to Father, “[t]here is no evidence in the record

       that [Ki.H.] was seriously endangered or impaired due to any action or inaction

       of Father. [K.H.] did have bruising on his buttocks, but there is no evidence

       suggesting that this bruising constitutes a serious impairment or seriously

       endangered [Ki.H.]” (Father’s Br. 15).


[25]   We disagree with Father’s argument that we must apply either the neglect

       statute or the abuse statute in conjunction with the presumption statute. As the

       Indiana Supreme Court explained in N.E., 919 N.E.2d at 102, in order to

       establish that a child is a CHINS, DCS must prove that a child is under the age

       of eighteen, a particular set of circumstances set forth in the statute exists, and

       the coercive intervention of the court is required. The three statues set forth

       above require proof of separate and distinct elements. Here, the trial court

       adjudicated Ki.H. to be a CHINS pursuant to INDIANA CODE § 31-34-12-4, the

       presumption statute. That statute requires DCS to prove that the child was

       injured; it does not require that the child was seriously endangered or impaired.

       See e.g. D.F.,83 N.E.3d at 796 (finding sufficient evidence to support D.F.’s

       adjudication as a CHINS pursuant to INDIANA CODE § 31-34-12-4 where D.F.


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2725 | May 13, 2020   Page 12 of 15
       was injured while in Mother’s care, there was more than a reasonable

       probability that the injury was not accidental, and Mother failed to rebut the

       presumption that D.F. was a CHINS).


[26]   To the extent that Father argues that there is insufficient evidence to support the

       CHINS adjudication pursuant to the presumption statute, we note that the

       record reveals that Ki.H. sustained bruises on his buttocks while in Father’s

       care. Two pediatricians, each with more than thirty years of experience,

       testified that the bruises were caused by inflicted trauma, not by accident or a

       water slide. This evidence is sufficient to establish a rebuttable presumption

       that Ki.H. was a CHINS because of Father’s act or omission. In addition, the

       evidence supports the trial court’s conclusion that Father failed to rebut this

       presumption. Indeed, the trial court specifically stated that it did not believe

       Father’s testimony. There is sufficient evidence to support the CHINS

       adjudication. See id.


[27]   Father further argues that DCS “failed to prove that the coercive intervention of

       the court was necessary.” (Father’s Br. 21). However, our review of the

       evidence reveals that Father and Mother have a more than ten-year history of

       domestic violence, and police have been dispatched to their home at least six

       times in the past. In April 2018, when Mother told Father that she was filing a

       dissolution petition, Father threatened to kill her in front of Ki.H. In April or

       May 2018, Father became angry at Mother and grabbed the back of her hair

       while she was holding Ki.H. Then, in March 2019, Father became extremely

       angry while he was holding Ki.H. and threatened to kill not only Mother but

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2725 | May 13, 2020   Page 13 of 15
       also Ki.H. A trial court need not wait until a tragedy occurs before intervening

       to protect a child. In re R.P., 949 N.E.2d 395, 401 (Ind. Ct. App. 2011). We

       find sufficient evidence to support the trial court’s determination that the

       coercive intervention of the court was necessary to ensure Ki.H.’s safety.


       2. Disposition


[28]   Father also contends the trial court abused its discretion when it ordered him to:

       (1) complete a substance abuse assessment; (2) follow all recommendations in

       the assessment, and (3) submit to random drug and alcohol screens.


[29]   Following the CHINS adjudication, the trial court conducts a dispositional

       hearing to consider the alternatives for the child’s care, treatment, placement, or

       rehabilitation; the participation of the parent, guardian, or custodian; and the

       financial responsibility for the services provided. In re K.D., 962 N.E.2d 1249,

       1257 (Ind. 2012) (citing I.C. § 31-34-19-1).


[30]   After the dispositional hearing, the trial court issues a dispositional order that

       sets forth the plan of care, treatment, or rehabilitation necessary to address the

       child’s needs. K.D. at 1257. Although the trial court has broad discretion to

       determine programs and services in which a parent is required to participate,

       “the requirements must relate to some behavior or circumstances that was

       revealed by the evidence.” Id. at 1258.


[31]   Here, following the dispositional hearing, the trial court issued a dispositional

       order requiring Father to: (1) complete a substance abuse assessment; (2)


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2725 | May 13, 2020   Page 14 of 15
       follow all recommendations in the assessment; and (3) submit to random drug

       and alcohol screens. Our review of the evidence most favorable to the CHINS

       adjudication reveals that Mother smelled marijuana on both Ki.H. and Father

       several times in 2019 following Ki.H.’s visits with Father. According to

       Mother, when she confronted Father, he told her that he was not going to stop

       smoking marijuana. Father’s claim that he no longer smokes marijuana is

       nothing more than an invitation to reweigh the evidence, which we will not do.

       See S.D., 2 N.E.3d at 1286. Because the requirements imposed on Father in the

       dispositional order relate to a behavior that was revealed by the evidence, we

       find no abuse of the trial court’s discretion.


[32]   Affirmed.


       Bradford, C.J., and Baker, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2725 | May 13, 2020   Page 15 of 15
