MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be
                                                                  May 19 2020, 8:16 am
regarded as precedent or cited before any
court except for the purpose of establishing                           CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
the defense of res judicata, collateral                                 and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Leanna K. Weissmann                                      Robert J. Henke
Lawrenceburg, Indiana                                    Abigail Recker
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of:                                        May 19, 2020

L.W. (Minor Child),                                      Court of Appeals Case No.
                                                         20A-JC-31
And
                                                         Appeal from the Decatur Circuit
M.W. (Father),                                           Court
Appellant-Respondent,                                    The Honorable Timothy Day,
                                                         Judge
        v.                                               Trial Court Cause No.
                                                         16C01-1909-JC-321
Indiana Department of Child
Services,
Appellee-Petitioner.



Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-31 | May 19, 2020                 Page 1 of 10
                                    STATEMENT OF THE CASE
[1]   Appellant-Respondent, M.W. (Father), appeals the trial court’s adjudication of

      his minor child, L.W. (Child), as a Child in Need of Services (CHINS).


[2]   We affirm.


                                                        ISSUE
[3]   Father presents this court with three issues on appeal, which we restate as:

      Whether the trial court erred by adjudicating Child to be a CHINS.


                          FACTS AND PROCEDURAL HISTORY
[4]   Mother and Father are the biological parents to Child, born on April 13, 2011. 1

      While Child resided with both parents, Father had physical custody of the

      Child. On September 8, 2019, Westport Police Department officer Tony

      Blodgett (Officer Blodgett), was dispatched to a domestic violence incident at

      parents’ home. Upon arrival, Officer Blodgett observed Mother “bleeding from

      her nose, sobbing, [and] crying uncontrollably.” (Transcript p. 29). Mother

      told the officer that she and Father “had gotten in an argument over money,

      and that they had gotten up and . . . bump[ed] chests together. And he had

      then spit in her face. He had hit her and bent her backward over the top of the

      countertop; was choking her to the point where she felt like she was going to

      lose consciousness, and had taken a frying pan and hit it on the countertop so




      1
          Mother does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 20A-JC-31 | May 19, 2020   Page 2 of 10
      badly that it had bent the frying pan almost in half.” (Tr. pp. 29-30). Child was

      in the home at the time of the altercation. Officer Blodgett spoke with Father,

      who had left the home with Child by the time the officer arrived, over the

      telephone. Father advised the officer that Mother had assaulted him. He

      described Mother “head-butt[ing]” him and that “any marks that she had on

      her, she would have done herself.” (Tr. pp. 38-39). Father refused to go to the

      police station so that Officer Blodgett could gather evidence supporting Father’s

      statement. Upon further investigation, Officer Blodgett was informed by

      Bartholomew County law enforcement officers that they had responded to prior

      domestic violence incidents at parents’ home.


[5]   The Department of Child Services (DCS) became involved with the family on

      September 17, 2019, when the trial court authorized the emergency removal of

      the Child from her parents’ care after Father “abscond[ed] with the [C]hild to

      elude law enforcement with regard to [] domestic violence” that occurred in the

      home, and due to Mother’s history of drug abuse and “deplorable home

      conditions.” (Appellant’s App. Vol. II, pp. 13-14). That same day, DCS filed

      its CHINS petition and an initial hearing was held during which Mother

      admitted the allegations and Father entered a denial. Two days later, on

      September 19, 2019, DCS filed an amended CHINS petition, alleging that the

      Child had been exposed to domestic violence by Father against Mother. As a

      result, Father had been charged with criminal confinement, domestic battery

      resulting in bodily injury, and domestic battery against Mother. DCS located

      the Child in Bartholomew County where Father had placed her after fleeing


      Court of Appeals of Indiana | Memorandum Decision 20A-JC-31 | May 19, 2020   Page 3 of 10
      from law enforcement officers when the domestic violence incident occurred.

      Child was dirty, wearing dirty clothes, and had dog feces caked on the soles of

      her feet.


[6]   On November 14, 2019, the trial court conducted a fact-finding hearing. At the

      hearing, Mother characterized the incident as “an argument” and a

      “disagreement.” (Tr. p. 46). She recanted her previous statement in which she

      pointed to Father as the initial aggressor, stating that she could not remember

      Father using violence against her, but instead she remembers “flipping out my

      own self because I thought he was – in my head I was thinking he was going to

      take my child.” (Tr. p. 46). Mother denied sustaining any injuries during the

      incident.


[7]   Father denied any domestic violence issues existed between him and Mother.

      He testified that during the incident on September 8, 2019, Mother “jumped up

      and started screaming and acting crazy” so he grabbed “a pan and beat it on the

      counter trying to get her to shut up.” (Tr. p. 81). Father described Mother

      “grabb[ing] [him] by the neck and [he] had a big cut.” (Tr. p. 86). Father took

      Child and left the residence. As a result of the incident, the State charged

      Father with three felonies, which were pending at the time of the fact-finding

      hearing, and the criminal court imposed a no-contact order between Mother

      and Father.


[8]   At the hearing, Father confirmed Mother’s substance abuse issues, describing

      her as a “monster” when she is using. (Tr. p. 80). He testified that at the time


      Court of Appeals of Indiana | Memorandum Decision 20A-JC-31 | May 19, 2020   Page 4 of 10
       of the incident, Mother was taking “Klonopin and then whatever the neighbor

       lady gave her.” (Tr. p. 80). Mother informed the trial court that she was

       receiving treatment through the Indiana Treatment Center, she was enrolled in

       counseling twice a month, and she was receiving methadone treatment for

       substance abuse issues. Although Mother and Father were living apart due to

       the no-contact order, Mother admitted that she would be staying with Father

       absent the order.


[9]    DCS’s Family Case Manager (FCM) testified that Mother described Father as

       “controlling” which caused the FCM concern that Mother had recanted her

       statement about the domestic violence incident under Father’s pressure. (Tr. p.

       61). The FCM also informed the trial court that it is concerning that when

       Mother is prescribed medication by her doctors, she appears to decide whether

       she will continue to take the medication. At the hearing, the FCM was also

       unaware of Mother receiving substance abuse treatment.


[10]   At the close of the fact-finding hearing, the trial court found the allegations of

       the CHINS petition to be true and adjudicated the Child to be a CHINS. The

       court ordered both parents to participate in services and, concluding that the

       Child’s detention was no longer necessary, ordered Child placed into Father’s

       care. On January 3, 2020, after a dispositional hearing, the trial court ordered

       Father, in pertinent part, to submit to random drug screens, to refrain from

       engaging in acts of domestic violence, and to participate in and complete all

       recommendations as a result of the domestic violence assessment.



       Court of Appeals of Indiana | Memorandum Decision 20A-JC-31 | May 19, 2020   Page 5 of 10
[11]   Father now appeals. Additional facts will be provided if necessary.


                               DISCUSSION AND DECISION
[12]   Father contends that the trial court abused its discretion in finding Child to be a

       CHINS. In order to adjudicate a child as a CHINS, DCS must prove by a

       preponderance of the evidence that:


               (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 . . . 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.


       I.C. § 31-34-1-1. In making its determination, the trial court should consider

       the family’s condition not just when the case was filed, but also when it was

       heard. In re S.D., 2 N.E.3d 1283, 1290 (Ind. 2014). A CHINS adjudication

       cannot be based solely on conditions that have ceased to exist. In re S.A., 15

       N.E.3d 602, 6011 (Ind. Ct. App. 2014), trans. denied. The adjudication must be

       based on the evidence presented in court and not on the allegations in the

       pleadings. Maybaum v. Putnam Co. O.F.C., 723 N.E.2d 951, 954 (Ind. Ct. App.

       2000). In reviewing a CHINS determination, we do not reweigh evidence or


       Court of Appeals of Indiana | Memorandum Decision 20A-JC-31 | May 19, 2020    Page 6 of 10
       assess witness credibility. Matter of N.C., 72 N.E.3d 519, 523 (Ind. Ct. App.

       2017). We consider only the evidence in favor of the trial court’s judgment,

       along with any reasonable inferences arising therefrom. Id.


[13]   Father maintains that the trial court erred in adjudicating Child to be a CHINS

       because there was no evidence Child was in any danger, or that her needs

       would go unmet in the absence of the coercive intervention by the trial court.

       The purpose of a CHINS inquiry is to determine whether a child’s

       circumstances require services that are unlikely to be provided without the

       intervention of the court, and thus, the focus of a CHINS adjudication is on the

       condition of the child alone, not on the culpability of one or both parents. In re

       N.E., 919 N.E.2d 102, 105-06 (Ind. 2010). Nonetheless, “[n]ot every

       endangered child is a child in need of services, permitting the State’s parens

       patriae intrusion into the ordinarily private sphere of the family.” In re S.D., 2

       N.E.3d at 1287. Rather, a CHINS adjudication under Indiana code section 31-

       34-1-1 requires proof of three basic elements: the parent’s actions or inactions

       have seriously endangered the child; the child’s needs are unmet; and “perhaps

       most critically,” those needs are unlikely to be met unless the State intervenes.

       Id. It is the last element that guards against unwarranted State interference in

       family life. Id. State intrusion is warranted only when parents lack the ability

       to provide for their children. Id. In other words, the focus is on the best

       interests of the child and whether the child needs help that the parent will not be

       willing or able to provide. Id. Despite a “certain implication of parental fault in

       many CHINS adjudications, the truth of the matter is that a CHINS

       Court of Appeals of Indiana | Memorandum Decision 20A-JC-31 | May 19, 2020   Page 7 of 10
       adjudication is simply that—a determination that a child is in need of services.

       In re N.E., 919 N.E.2d at 105.


[14]   In support of his argument that a CHINS adjudication was an abuse of

       discretion, Father relies on A.M. v. Ind. Dep’t of Child Servs., 45 N.E.3d 1252

       (Ind. Ct. App. 2015) and M.W. v. Ind. Dep’t of Child Servs., 119 N.E.3d 165 (Ind.

       Ct. App. 2019). However, upon review, we find both cases inapposite to the

       situation at hand. In A.M., the only evidence presented by DCS to support its

       CHINS petition was a positive meconium test at the time of A.M.’s birth.

       A.M., 45 N.E.3d at 1255-56. Based on the lack of any further evidence, we

       declined to find evidence of endangerment. Id. In M.W., DCS became

       involved after Mother called law enforcement when her two teenage daughters

       got into a physical fight. M.W., 119 N.E.3d at 166-67. The evidence reflected

       that, leading up to the CHINS hearing, mother voluntarily participated in

       services, was enrolled in counseling, and had set up therapy sessions for both

       daughters. Id. at 169. Mother also agreed the child needed therapy and

       intended to continue providing it. Id. Finding itself “stunned that the juvenile

       court found [c]hild to be a CHINS,” this court reversed the CHINS

       adjudication as “[f]rom the outset, by calling the police, [m]other showed that

       she simply needed some help—and she got it, through the services provided by

       DCS. By the time of the CHINS hearing, it was readily apparent that the child

       was not seriously endangered, and even more critically, that the coercive

       intervention of the court was not required.” Id.




       Court of Appeals of Indiana | Memorandum Decision 20A-JC-31 | May 19, 2020   Page 8 of 10
[15]   Here, the circumstances demand a different outcome than in A.M. and M.W.

       At the time of the fact-finding hearing, neither Mother nor Father would admit

       that a domestic violence issue existed, despite their prior history. Mother

       recanted her initial story that Father was the aggressor and insisted that she

       could no longer remember the incident, characterizing it as a disagreement and

       argument despite telling Officer Blodgett that Father choked her to the point

       where she almost lost consciousness. Father, in turn, blamed Mother and said

       that she had harmed him. The trial court found that “Child has been exposed

       to domestic violence by Father against Mother.” (Appellant’s App. Vol. II, p.

       34). Yet, regardless of who the aggressor was, a problem of domestic violence

       exists in the home which neither parent acknowledged. Officer Blodgett

       elaborated that the family had a history of domestic violence issues and Mother

       testified that without the no-contact order in place, the parties would be living

       as a family again. As we have frequently recognized, a Child’s exposure to

       domestic violence can support a CHINS finding. In re N.E., 919 N.E.2d at 105.


[16]   It appeared that the instant incident of domestic violence was brought on by

       Mother’s substance abuse as she had taken “Klonopin and then whatever the

       neighbor lady gave her.” (Tr. p. 80). At the hearing, Father minimalized

       Mother’s addiction and abuse of her medication. Father does not believe

       Mother needs services, instead informing the court that “[s]he’s made a

       mistake. She’s corrected. She’s sober today.” (Tr. p. 87). Although Mother

       advised the trial court that she has sought treatment for her addiction, she had

       yet to provide any proof of this to the FCM.


       Court of Appeals of Indiana | Memorandum Decision 20A-JC-31 | May 19, 2020   Page 9 of 10
[17]   Recognizing that a CHINS determination is not a finding of guilt for either

       parent, but rather a vehicle to ensure the safety of the child, we conclude that

       parents’ actions have seriously endangered the Child and without coercive

       intervention of the court, the Child will not receive the care she needs. Neither

       Father nor Mother acknowledged the domestic violence in the house, instead

       they downplayed it as an argument. Father minimalized the substance abuse

       by Mother, and merely regarded her abuse as a mistake. The Child needs a

       home environment that is stable and free of domestic violence and substance

       abuse. The coercive intervention of the court is required to accomplish this goal

       as parents were only living separately due to the no-contact order in place and

       Father, although ordered to participate in a domestic violence assessment,

       denied domestic violence was present in the home and actively challenged

       DCS’s request to order Father to participate in the Batterers Intervention

       Program Assessment. Accordingly, the trial court did not abuse its discretion

       by adjudicating Child to be a CHINS.


                                             CONCLUSION
[18]   Based on the foregoing, we hold that the trial court properly adjudicated Child

       to be a CHINS.


[19]   Affirmed.


[20]   Mathias, J. and Tavitas, J. concur




       Court of Appeals of Indiana | Memorandum Decision 20A-JC-31 | May 19, 2020   Page 10 of 10
