MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                          FILED
court except for the purpose of establishing                                   Jul 24 2020, 9:34 am
the defense of res judicata, collateral                                            CLERK
estoppel, or the law of the case.                                              Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




ATTORNEY FOR APPELLANT L.R.                               ATTORNEYS FOR APPELLEE
Danielle Sheff                                            Curtis T. Hill, Jr.
Sheff Law Office                                          Attorney General of Indiana
Indianapolis, Indiana
                                                          Katherine A. Cornelius
ATTORNEY FOR APPELLANT S.H.                               Deputy Attorney General
                                                          Indianapolis, Indiana
Andrew Bernlohr
Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of Children in                              July 24, 2020
Need of Services, M.R. and T.D.                           Court of Appeals Case No.
(Minor Children)                                          19A-JC-2942
and                                                       Appeal from the Marion Superior
                                                          Court
L.R. (Father) and S.H. (Mother),
                                                          The Honorable Mark A. Jones,
Appellants-Respondents,                                   Judge

        v.                                                The Honorable Diana Burleson,
                                                          Magistrate
                                                          Trial Court Cause Nos.
The Indiana Department of
                                                          49D15-1906-JC-1569
Child Services,                                           49D15-1906-JC-1570
Appellee-Petitioner.



Court of Appeals of Indiana | Memorandum Decision 19A-JC-2942| July 24, 2020                           Page 1 of 13
      Bradford, Chief Judge.



                                                 Case Summary
[1]   S.H. (“Mother”) and J.D. are the biological parents of T.D. (born October 23,

      2013). Mother and L.R. (“Father”) are the biological parents of M.R. (born

      November 24, 2018). In October of 2019, T.D. and M.R. (collectively, “the

      Children”) were adjudicated to be children in need of services (“CHINS”) due

      to domestic violence issues amongst the parents. Mother contends that the

      CHINS adjudication is erroneous as to the Children, and Father contends that

      it is erroneous as to M.R. Because we disagree, we affirm.1



                                 Facts and Procedural History
[2]   On June 13, 2019, while at Mother’s residence, Father and Mother began to

      argue. Mother took the Children into the bathroom, locking them and herself

      inside. After Father kicked the bathroom door down, Mother kicked and hit

      Father several times. Mother ultimately left the residence with the Children and

      went to the hospital, where it was determined that Mother had sustained two

      broken toes, a sprained wrist, and a contusion on her head. Prior to the June of

      2019 altercation, Mother, Father, and J.D. had been working with the




      1
          J.D. does not participate in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2942| July 24, 2020   Page 2 of 13
      Department of Child Services (“DCS”) through an informal adjustment, which

      began in April of 2019.


[3]   On June 19, 2019, DCS petitioned for the Children to be adjudicated CHINS.

      On August 15 and 16, 2019, the juvenile court held a factfinding hearing

      regarding DCS’s CHINS petitions. Following the hearing, the juvenile court

      ordered the Children to be removed from Mother’s care and placed in foster

      care and took the matter under advisement. On August 28, 2019, DCS

      informed the juvenile court that M.R. had been placed with Father on in-home

      trial visitation. On October 23, 2019, the juvenile court adjudicated the

      Children to be CHINS after finding the following:


              6. In April 2019 the family entered into an Informal Adjustment
              (IA) agreement with DCS due to [Mother’s] marijuana use
              during her pregnancy with [M.R.] The Court takes judicial notice
              of 49D09-1904-JM-422/3. As part of that agreement, the family
              agreed to participate in services. The IA was dismissed and this
              CHINS case filed due to a domestic violence incident in June
              2019, mother not being compliant with services, not attending
              groups, and not following through with IOP at Adult and Child.

              7. [Mother] has had domestic violence incidents with [J.D.] off
              and on throughout their relationship. They met in 2013.

              8. [J.D.] was shot once when he was 16 and once when he was
              25.

              9. [J.D.’s] daughter, [T.D.], who was 1 year old at the time, was
              with him the second time he was shot. It occurred at 38 th and
              Drexel and was a “big shootout with second older brother’s
              cousin”.



      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2942| July 24, 2020   Page 3 of 13
        10. [J.D.] has a number of criminal cases going on involving a
        stolen gun, not having a gun permit, guys “putting money on
        him” and a recent situation with [Father].

        11. [J.D.] has been locked up a couple of times because of
        [Mother,] but he “beat the cases”. He says he has been “rippin
        and runnin the streets”. In January 2017 [Mother] called the
        police because [J.D.] grabbed her around the neck, hit her and
        [T.D.] was present. [Mother] went to the Julian Center.

        12. In June 2019 a physical altercation occurred between
        [Mother] and [Father]. It occurred in [Mother’s] home and the
        children were present. During the altercation, [Mother] kicked
        [Father] and hurt her foot and [Father] hit her in the head. She
        grabbed the children and took them into the bathroom. [Father]
        kicked the bathroom door open and [Mother] went upstairs with
        the children. After a while [Mother] went back downstairs and
        told [Father] that she was hurt, but he said she could not leave.
        [Mother] went upstairs and called the police, [Father] left and
        [Mother] went to the hospital. [Mother] had a head contusion,
        sprained wrist, and two broken toes.

        13. On July 22, 2019 the police were called to an incident
        involving [J.D.] and his ex-girlfriend [Ms. C.] When Officer
        Deever arrived on the scene, [J.D.] was threatening police
        officers and [Ms. C.] with bodily harm. He threatened to use a
        family member, his sister, to beat [Ms. C.] to a pulp so no one
        would recognize her. [J.D.] said he would have his family come
        back and get the officers. Officer Deever was concerned for his
        safety. [J.D.] was extremely agitated and had to be detained.
        [J.D] was aggressive, threatening, loud and belligerent, and the
        neighbors were woken up. Once in the wagon he yelled “I’ll be
        back, don’t you worry.” [J.D.] is on GPS release.

        14. Two and a half weeks ago, [Mother] was at home, [J.D.] and
        his fiancé [sic] came to get [T.D.] [J.D.] was taking his time to
        leave; but eventually left with [T.D.] [Father] came to take
        [Mother] to the store. When he saw [Father] come to the house,

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2942| July 24, 2020   Page 4 of 13
        [J.D.] came back to [Mother’s] back door and pushed his way
        into the house. He was yelling about [Father]. [J.D’s] fiancé [sic]
        grabbed [T.D.] and put her in the car. [Mother] put [M.R.] in a
        stroller, and took off. [J.D.] was still at [Mother’s] house.
        [Mother] went a short distance from the house at 16th and
        Priscilla, and waited 20 minutes to see if [J.D.] would leave.
        When she didn’t see him, she walked back to her apartment.
        [J.D.] was in the house in a chair. [Mother] was fearful for hers
        and her child’s lives, so she left and walked to Taco Bell. [Father]
        was there. As [Father] was walking up to the Taco Bell, [Mother]
        saw [J.D.] approaching. [Mother] said something like “There’s
        [J.D.], you need to go.” [J.D.] picked up bricks and launched
        them at [Father’s] car. [Father] told [J.D.] that he didn’t have a
        problem with him. [J.D.] said that he was going to kill [Father].
        [M.R.] was present during this argument. [Mother] was close
        enough to the fathers to hear the argument.

        15. [Mother] called Ms. [Ieva] Grundy from Taco Bell and told
        her that she was fearful. [Mother] did not call the police because
        she was afraid her children would be taken away from her. Ms.
        Grundy said that if she came, she would take [Mother] to a
        shelter. [Mother] did not want to go to a shelter.

        16. [J.D.] called in a police report about the Taco Bell incident
        and described [Father] as having dreads (which he did not),
        driving a Buick (which he was not doing), and pointing a gun at
        him and threatened that he wanted to “blow [J.D.’s] noodle back
        right now.” Noodle as used in this sentence means “brain”.
        There was no corroboration of this story.

        17. [Mother] has received text messages from [J.D.] – threatening
        her life, name calling, going to cut her and do bad things to her.

        18. On August 1, [Mother] agreed to give custody of [T.D.] to
        [J.D.] because she thought it would “cut down on the
        confusion”, not because it was in the best interest of her child.



Court of Appeals of Indiana | Memorandum Decision 19A-JC-2942| July 24, 2020   Page 5 of 13
        19. According to the home based case manager, Ieva Grundy,
        who has years of experience working with families which have
        experienced domestic violence, children who are in an
        environment with arguing, domestic violence, are not healthy
        because they are traumatized by that. This exposure stunts
        developmental and emotional growth. Even if children are in
        another room, they can hear it and feel the tension. Ms. Grundy
        had one encounter with [Mother] and [J.D.] together. She told
        them that they needed to grow up and that this was about the
        safety of their child.

        20. Ms. Grundy’s goals with [Mother] were for her to get clean
        and sober, enroll in recovery and domestic violence classes at the
        Rose Project, get a CAN license and get permanent employment.

        21. The FCM assigned to this case, Gwen Grant, has 25 years
        providing working at a mental health center in New York
        providing services to families. She described the relationship
        between [J.D.] and [Father] as toxic. There has been domestic
        violence between [Mother] and [J.D.] on and off. [J.D.] gets
        angry and goes off. [Mother] has told FCM Grant that she is
        tired of [J.D.] and [Father]. She says she is tired, she is done. The
        FCM is concerned about the ongoing violence between the
        fathers.

        22. In August 2019, Jeremy Noble was the assigned visitation
        facilitator from [Father] and [M.R.] At one of the visits on
        August 8, 2019, Mr. Noble took [M.R.] and [Father] to a splash
        pad. When they arrived, [Mother] and [T.D.] were there in a car.
        Mr. Noble told her that this visit was with [Father] only and that
        she would have to leave. She walked away but was still near.

        23. [Father] told Mr. Noble that his relationship with [Mother]
        was good in the beginning, but now it was not healthy. [Father]
        is making efforts to co-parent [M.R.]

        24. Ms. Grundy has met [Father] and seen him and [Mother]
        together with [M.R.] [Father] was engaged, loving and gentle.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-2942| July 24, 2020   Page 6 of 13
        When he and [Mother] lived together she saw them together and
        they seemed to get along. [Father] and [J.D.] do not get along.

        25. On August 13, 2019, [Mother] said she was not going to
        make [M.R.] available for a visit. [Mother] was tired of [Father]
        calling her and cancelling visits and she was not going to do it
        anymore, if he wanted to see her he would have to go to court.
        She hung up on him.

        26. According to [Mother], it is getting stressful and hard to
        provide financially for the children. She works at two temporary
        agencies. She is unable to get CCDF because they want the
        fathers to be paying child support. [Mother] voluntarily gave
        [J.D.] custody of [T.D.] and is not receiving child support from
        him. There is a paternity case at juvenile court under which
        [Mother] could have requested child support.

        27. The Court finds that the children are in need of services. It is
        clear that [J.D.] and [Father] do not get along, and the
        triangulation with mother which includes continued regular
        contact between her and the fathers has created a chaotic
        environment for the family. The children have been present
        during some of the violent incidents between the parents and
        [T.D.] was with her father when he was shot. [Mother] is tired of
        [J.D.] and [Father]. She is fearful of [J.D.] [J.D.] and [Father’s]
        relationship is toxic to the point that [J.D.] has alleged that
        [Father] has been involved in violent activity which has not
        occurred. It is difficult for [Mother] to provide financially for the
        children. The relationship between the parents and the violence
        exhibited creates a home environment for the children which
        causes trauma. The parents need services to learn how to co-
        parent together. [T.D.] needs therapy to address the violence that
        she has been exposed to. [M.R.] needs to be in an environment
        without violence. DCS was minimally involved with the family
        through in Informal Adjustment agreement (IA), but that was
        violated due to [Mother] not participating with services and two
        domestic violence incidents since the IA was opened. The
        parents have not been able to provide a living environment free
Court of Appeals of Indiana | Memorandum Decision 19A-JC-2942| July 24, 2020   Page 7 of 13
                 from domestic violence, therefore the coercive intervention of the
                 court is necessary.


      Appellant’s App. Vol. II pp. 130–32.2 On November 13, 2019, the juvenile court

      held a dispositional hearing, at which it ordered Father to complete home-based

      therapy and Mother to complete home-based therapy, home-based case

      management, and domestic violence services.



                                    Discussion and Decision
[4]   Mother and Father contend that there was insufficient evidence to support the

      CHINS adjudications. It was DCS’s burden to prove by a preponderance of the

      evidence that the Children were CHINS. T.Y.T. v. Allen Cty. Div. of Family and

      Children, 714 N.E.2d 752, 756 (Ind. Ct. App. 1999). “We review the sufficiency

      of the evidence by considering only the evidence favorable to the judgment,

      together with the reasonable inferences to be drawn therefrom.” Id. We neither

      reweigh the evidence nor judge witness credibility. Id.


[5]   Pursuant to Indiana Code section 31-34-1-1, in order to adjudicate a child a

      CHINS, DCS must prove 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, guardian, or custodian to supply the
                 child with necessary food, clothing, shelter, medical care, or
                 education, or supervision:


      2
          Appellant’s Appendix refers to Appendix – Appellant (LR) in the record.

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2942| July 24, 2020   Page 8 of 13
                       (A) when the parent, guardian, or custodian is financially
                       able to do so; or

                       (B) due to the failure, refusal, or inability of the parent,
                       guardian, or custodian to seek financial or other
                       reasonable means to do so; 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.


      Our Indiana Supreme Court has interpreted this provision to require “three

      basic elements: that the parent’s action or inactions have seriously endangered

      the child, that the child’s needs are unmet, and (perhaps most critically) that

      those needs are unlikely to be met without State coercion.” In re S.M., 45

      N.E.3d 1252, 1255 (Ind. Ct. App. 2015) (quoting In re S.D., 2 N.E.3d 1283,

      1287 (Ind. 2014)).


[6]   The juvenile court, sua sponte, entered findings of fact and conclusions of law in

      its order adjudicating the Children to be CHINS and therefore our review is

      subject to Indiana Trial Rule 52(A). Matter of N.C., 72 N.E.3d 519, 523 (Ind. Ct.

      App. 2017).


              For issues covered by the juvenile court’s findings, we first
              consider whether the evidence supports the factual findings and
              then consider whether those findings support the juvenile court’s
              judgment. We will not set aside the findings or judgment unless
              they are clearly erroneous. Findings are clearly erroneous when
              there are no facts in the record to support them; a judgment is

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2942| July 24, 2020    Page 9 of 13
              clearly erroneous if it relies on an incorrect legal standard. We
              give substantial deference to the court’s findings but not to its
              conclusions. Any issues not covered by the findings are reviewed
              under a general judgment standard and the judgment may be
              affirmed if it can be sustained on any basis supported by the
              evidence.


      Id. (internal citations omitted).


[7]   Here, we conclude that the juvenile court properly adjudicated the Children to

      be CHINS. Regarding the first element, Mother’s, Father’s, and J.D.’s actions

      and inactions have seriously endangered the Children. We agree with the

      juvenile court’s characterization of the relationship between the three adults as

      a “triangulation” relationship that has created a living environment for the

      Children that is chaotic and rife with domestic violence. Incidents of domestic

      violence between Mother and J.D. have occurred throughout their relationship,

      beginning in 2013. We find it troubling that Mother’s solution to stopping J.D.

      from coming to her residence and causing problems between the adults was to

      give him custody of T.D. Despite Mother giving J.D. custody of T.D., J.D.

      testified at the factfinding hearing that he was living at Mother’s residence,

      which she disputed. Moreover, in June of 2019, an altercation occurred

      between Mother and Father, during which Father kicked down the bathroom

      door; Mother kicked Father; and Mother sustained two broken toes, a sprained

      wrist, and contusion to her head. The Children were present during this

      altercation. Jeremy Noble, Father’s visitation supervisor, testified that Father

      told him that he and Mother’s relationship started out well but has become


      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2942| July 24, 2020   Page 10 of 13
      unhealthy. Finally, in August of 2019, Father and J.D. were involved in a

      verbal altercation that took place at a Taco Bell, during which J.D. threw bricks

      at Father’s car and threatened to kill Father. M.R. was present during this

      altercation.


[8]   Regarding the second and third elements, we conclude that the Children’s

      needs were unmet and likely to remain unmet without the juvenile court’s

      intervention. Home-based case manager Grundy testified to her concerns

      regarding the Children as follows:


              Q        What are your concerns?

              A        My concerns is that children who are in this kind of
                       environment with a lot of arguing, domestic violence is not
                       healthy for kids.

              Q        Why not?

              A        Because they [are] traumatized by that -- even as small
                       infants. They are traumatized by that and it is not -- it
                       stu[nt]s their developmental growth, their emotional
                       growth and I do have concerns about these children in that
                       environment with all three of these parents.

              Q        Even if the children are in a different room when
                       something happens?

              A        Yes.

              Q        Well, they can’t see it?

              A        Right, but they can hear it and they can feel the tension in
                       the rooms between their parents.



      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2942| July 24, 2020   Page 11 of 13
      Tr. Vol. II pp. 54–55. Further, family case manager Grant testified that if the

      CHINS petition was dismissed by the juvenile court, she would be concerned

      that “there would be ongoing [domestic violence] amongst the family members

      and that someone would eventually get hurt. If not the parents, one of the

      kids.” Tr. Vol. II p. 94. Finally, Mother, Father, and J.D. were given an

      opportunity to address their issues without the juvenile court’s intervention

      through an informal adjustment starting in April of 2019 but were unable to do

      so. Their inability was demonstrated through continuous altercations amongst

      one another, especially in June and August of 2019, making it necessary for the

      juvenile court to intervene to ensure that the Children have a living

      environment that is safe and free from domestic violence. Mother and Father

      have failed to establish that the CHINS adjudications were erroneous.


[9]   In arguing that the CHINS adjudications were erroneous, Mother attempts to

      place the blame on Father and J.D., and Father blames J.D. While we believe

      there is more than enough blame to go around, we need not conduct a separate

      analysis for each parent, but rather, determine only if the Children are CHINS,

      which we have already so concluded. See In re N.E., 919 N.E.2d 102, 106 (Ind.

      2010) (“Because a CHINS determination regards the status of the child, a

      separate analysis as to each parent is not required in the CHINS determination

      stage … Indeed, to adjudicate culpability on the part of each individual parent

      in a CHINS proceeding would be at variance with the purpose of the CHINS

      inquiry: determining whether a child’s circumstances necessitate services that

      are unlikely to be provided without the coercive intervention of the court.”).


      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2942| July 24, 2020   Page 12 of 13
[10]   Father also seemingly argues that because M.R. has been placed in his care and

       he is an appropriate parent and caregiver, M.R.’s adjudication as a CHINS is

       erroneous and violates his due process rights as a parent. Father’s argument,

       however, misses the mark for numerous reasons and need not detain us long.

       First, it was M.R.’s living environment while under Mother’s care, not Father’s,

       that was before the juvenile court. Second, Father significantly diminishes his

       involvement in creating an environment for M.R. filled with domestic violence.

       Both the June and August of 2019 altercations directly involved Father. Third,

       as M.R.’s current caregiver, Father is likely going to have to interact with the

       other individuals involved in these altercations in the future, which means he

       needs to learn how to effectively co-parent with them. Finally, it is the juvenile

       court’s order removing M.R. from Mother’s care and subsequent CHINS

       adjudication that has allowed M.R. to be placed in Father’s home. Absent these

       CHINS proceedings and subsequent adjudication, we see no reason why M.R.

       would not still be in Mother’s care.


[11]   The judgment of the juvenile court is affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2942| July 24, 2020   Page 13 of 13
