MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                   Jan 25 2019, 8:50 am

regarded as precedent or cited before any                                   CLERK
                                                                        Indiana Supreme Court
court except for the purpose of establishing                               Court of Appeals
                                                                             and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                        Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                       Attorney General of Indiana
Madison, Indiana
                                                          Frances Barrow
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of:                                         January 25, 2019

A.A.S. (Minor Child)                                      Court of Appeals Case No.
                                                          18A-JC-1831
and
                                                          Appeal from the Ohio Circuit
J.A.S. (Father),                                          Court
Appellant-Respondent,                                     The Honorable James D.
                                                          Humphrey, Judge
        v.                                                Trial Court Cause No.
                                                          58C01-1804-JC-3
The Indiana Department of
Child Services,
Appellee-Petitioner,



Robb, Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-JC-1831 | January 25, 2019                Page 1 of 13
                                Case Summary and Issue
[1]   J.A.S. (“Father”) appeals the juvenile court’s finding that his daughter, A.S.

      (“Child”) is a child in need of services (“CHINS”). Father raises one issue for

      our review, whether the juvenile court erred in finding Child to be a CHINS.

      Concluding the juvenile court did not err, we affirm.



                            Facts and Procedural History
[2]   Child was born to Father and S.L.S. (“Mother”) on April 20, 2012, and was six

      years old when these proceedings began. Father and Mother do not live

      together. During a three-day period between April 20 and 22, 2018, Child was

      staying with Father. On April 21, Father and Mother engaged in the following

      conversation through text message:


              [Father]:        The next time [Child] poops her pants your [sic]
                               going to spank her and spank her good. Got it.


              [Mother]:        Yes . . . [b]ut you don’t need to be spanking her so
                               hard your [sic] leaving bruises either


              [Father]:        Wouldn’t have to if you would do your job


              [Mother]:        I am


              [Father]:        Then why she [sic] still doing it?


              [Mother]:        Cause [sic] she’s stubborn and doesn’t want to


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-1831 | January 25, 2019   Page 2 of 13
              [Father]:        That’s where the a** whooping comes in


      Exhibit Volume I at 74-75.


[3]   Child returned to Mother’s on April 22 and Mother noticed significant bruising

      on Child’s buttocks and left leg as she was helping Child take a bath. Mother

      texted Father about spanking Child and Father responded, “it isn’t a big deal”

      and “if [Child] wouldn’t poop in her pants it wouldn’t happen.” Appellant’s

      Appendix, Volume 2 at 14. Mother brought Child to the hospital.


[4]   Soon thereafter, the Indiana Department of Child Services (“DCS”) received a

      report alleging that Father had physically abused Child. DCS Family Case

      Manager Lydia Stepp met Mother and Child at the hospital. Mother reported

      that Child had no bruising before going to Father’s house three days before, and

      Stepp took four pictures of Child and her injuries.


[5]   DCS filed a CHINS petition on April 24. After several hearings in Father’s

      absence, an initial hearing was held with respect to Father on May 22 and a

      fact-finding hearing was conducted on June 18. The juvenile court adjudicated

      Child to be a CHINS and made the following findings and conclusions:


              The Court now adjudicates the [Child] a Child in Need of
              Services as defined by [Indiana Code sections] 31-34-l-l and 31-
              34-l-2.


              In support for this conclusion of law, the following findings of
              fact are found:



      Court of Appeals of Indiana | Memorandum Decision 18A-JC-1831 | January 25, 2019   Page 3 of 13
        a.       [Father] is the biological father of [Child].


        b.       [Child] was born on April 20, 2012, and is six (6) years of
                 age.


        c.       On April 22, 2018, [DCS] received a report alleging that
                 [Father] had physically abused [Child].


        ***


        g.       Family Case Manager Rebecca Eldridge (hereinafter
                 “FCM Eldridge”), testified that she attempted to contact
                 and notify [Father] of the court hearing set for April 25.
                 FCM Eldridge stated that [Father] knew about the
                 hearing, but chose not to appear. FCM Eldridge further
                 testified that she had attempted to notify [Father] of all
                 subsequent hearings, even going so far as to go to his home
                 with law enforcement. FCM Eldridge knocked on
                 [Father’s] door, but no one answered, despite [Father’s]
                 vehicle being present.


        h.       Mother admitted at the Initial Hearing held on April 25,
                 2018, that the allegations in the petition were true and that
                 [Child] was a Child in Need of Services.


        i.       FCM Eldridge learned that law enforcement was formally
                 charging [Father] with domestic battery and neglect of a
                 dependent resulting in serious bodily injury. . . .


        j.       Father continued to fail to appear for subsequent hearings,
                 until he was arrested and appeared at his Initial Hearing
                 for his criminal case, at which time [DCS] informed him
                 of his upcoming hearing date, on the record.


Court of Appeals of Indiana | Memorandum Decision 18A-JC-1831 | January 25, 2019   Page 4 of 13
        k.       Hospital records . . . indicate that [Child] was diagnosed
                 with “contusion of lower back and pelvis” and that it was
                 “suspected child maltreatment, confirmed”. The records
                 also indicate that [Child] suffered "significant bruising to
                 full buttocks with some petechiae”. The records further
                 indicate that the bruising was cause [sic] by “non-
                 accidental trauma”. (Exhibit 3).


        l.       FCM Eldridge testified that [Father] had spoken with her
                 and indicated that he was willing to participate in services,
                 but that he did not think that a Program of Informal
                 Adjustment or a formal Child in Need of Services case was
                 appropriate.


        m.       FCM Eldridge further testified that [Father] indicated that
                 [Child’s] bruising could have been caused by anemia, as
                 she was diagnosed with that when she was younger.
                 Medical records from [Child’s] primary physician indicate
                 that [Child] does not have anemia. (Exhibit 4)


        n.       FCM Eldridge also testified that [Father] had a previous
                 substantiation with the [DCS] that was later overturned,
                 but that case did not influence her decision in this case.


        o.       Mother . . . testified that [Father] sent her text messages, in
                 which [Father] admitted to spanking [Child] and leaving
                 bruises. (Exhibit 5)


        p.       Mother also testified that [Father] gave [Mother] several
                 versions of how [Child] became injured, including [Child]
                 having anemia, [Child] falling on his steel-toed boots in his
                 home, and that [Child] may have the beginning stages of
                 childhood leukemia.



Court of Appeals of Indiana | Memorandum Decision 18A-JC-1831 | January 25, 2019   Page 5 of 13
              q.       Father testified that [Child] received her injuries when she
                       fell on his steel-toed boots and shoe horns that were inside
                       his front door. Father further testified that she seemed fine
                       when she fell. Father provided a picture of the inside of
                       his front door, though it was not a picture from the day of
                       the incident. (Respondent’s Exhibit A)


              r.       Father admitted that he spanked [Child] because she lied
                       about pooping in her pants. He stated that he didn’t notice
                       any bruises on her bottom when he spanked her.


              s.       Father has provided no probable explanation for how
                       [Child] obtained her bruises. He has provided theories,
                       but openly admits that he spanked her and that there were
                       no bruises on her bottom when did so.


              t.       [DCS] has provided to the Court pictures of [Child’s]
                       injuries, as well as medical records which indicate that the
                       bruises are the result of non-accidental trauma and child
                       maltreatment.


              u.       Based on the evidence and testimony, [DCS] has proved
                       by a preponderance of the evidence that [Child] is a Child
                       in Need of Services.


      Order on Fact Finding Hearing at 1-4. Father now appeals.



                                 Discussion and Decision
                                      I. Standard of Review
[6]   Father argues there is insufficient evidence supporting Child’s CHINS

      adjudication. DCS’s burden of proof in a CHINS proceeding is a

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-1831 | January 25, 2019   Page 6 of 13
      preponderance of the evidence. Ind. Code § 31-34-12-3. “‘Preponderance of

      the evidence,’ when used with respect to determining whether or not one’s

      burden of proof has been met, simply means the ‘greater weight of the

      evidence.’” Travelers Indem. Co. v. Armstrong, 442 N.E.2d 349, 361 (Ind. 1982)

      (citation omitted). We do not reweigh evidence or assess witness credibility for

      ourselves in reviewing a CHINS determination. In re S.A., 15 N.E.3d 602, 607

      (Ind. Ct. App. 2014), aff’d on reh’g, 27 N.E.3d 287 (Ind. Ct. App. 2015), trans.

      denied. Rather, we consider only the evidence in favor of the juvenile court’s

      judgment, along with any reasonable inferences arising therefrom. Id.


[7]   In adjudicating Child a CHINS, the juvenile court entered findings of fact and

      conclusions thereon. We therefore review the juvenile court’s judgment

      pursuant to Trial Rule 52(A): we first consider whether the evidence supports

      the factual findings and then consider whether those findings support the

      juvenile court’s judgment. Id. We will not set aside the findings or judgment

      unless they are clearly erroneous. Id. Findings are clearly erroneous when

      there are no facts in the record to support them; a judgment is clearly erroneous

      if it relies on an incorrect legal standard. Id. Although we give substantial

      deference to the juvenile court’s findings, we do not extend such deference to

      the court’s conclusions. Id. 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.




      Court of Appeals of Indiana | Memorandum Decision 18A-JC-1831 | January 25, 2019   Page 7 of 13
                                 II. Adjudication as a CHINS
[8]   As our supreme court explained in In re KD, 962 N.E.2d 1249 (Ind. 2012), there

      are three elements DCS must prove for a juvenile court to adjudicate a child a

      CHINS:


               DCS must first prove the child is under the age of eighteen; DCS
               must prove one of eleven different statutory circumstances exist
               that would make the child a CHINS; and 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. at 1253 (footnote omitted).


[9]   Here, the juvenile court adjudicated Child a CHINS pursuant to Indiana Code

      section 31-34-1-2.1 Order on Fact Finding Hearing at 1. Indiana Code section

      31-34-1-2 provides, in relevant part:


               (a) A child is a [CHINS] if before the child becomes eighteen (18)
               years of age:




      1
       The juvenile court also adjudicated Child to be CHINS pursuant to Indiana Code section 31-34-1-1.
      Because we conclude there is sufficient evidence to support the juvenile court’s adjudication of the Child as
      CHINS pursuant to Indiana Code section 31-34-1-2, we need not also decide whether there was sufficient
      evidence to support the juvenile court’s finding under Indiana Code section 31-34-1-1. See Q.J. v. Indiana
      Dep’t of Child Servs., 92 N.E.3d 1092, 1103, n.3 (Ind. Ct. App. 2018), trans. denied.



      Court of Appeals of Indiana | Memorandum Decision 18A-JC-1831 | January 25, 2019                   Page 8 of 13
                        (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:


                                (A) the child is not receiving; and


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


[10]   On appeal, Father argues DCS failed to produce sufficient evidence that Child’s

       injury was the result of Father’s act and that coercive intervention was

       necessary. Before proceeding to the merits of Father’s argument, however, we

       note that Father does not challenge any of the juvenile court’s specific findings.

       These unchallenged findings therefore stand as correct. McMaster v. McMaster,

       681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (unchallenged trial court findings are

       accepted as true).


                     A. Child’s Injury was the Result of Father’s Act
[11]   First, Father argues “the record fails to demonstrate on a preponderance of the

       evidence that the bruising was in fact caused by Father’s act.” Corrected

       Appellant’s Brief at 12. Specifically, Father contends that although he admitted

       to spanking Child, he “categorically denied spanking her with sufficient force to

       cause bruising.” Id.


[12]   Indiana Code section 31-34-12-4 states:


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1831 | January 25, 2019   Page 9 of 13
               A rebuttable presumption is raised that the child is a [CHINS]
               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.


       Ind. Code § 31-34-12-4.


[13]   “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.” Indiana Dep’t of Child Servs. v. J.D., 77 N.E.3d 801, 807 (Ind. Ct. App.

       2017), trans. denied. Once DCS has produced evidence establishing the elements


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1831 | January 25, 2019   Page 10 of 13
       of Indiana Code section 31-34-12-4, the burden of production shifts to the

       respondent. Id. at 809.


[14]   Here, DCS produced hospital records and pictures detailing significant bruising

       to Child’s buttocks and evidence that Child was in Father’s care when the

       injuries occurred. Mother testified, and Father himself admitted, that Child had

       no signs of bruising when she arrived in Father’s care. Such evidence shifted

       the burden of production to Father “to produce evidence rebutting the

       presumption that the child is a CHINS.” J.D., 77 N.E.3d at 807. As to Father’s

       burden, the juvenile court found:


               Father has provided no probable explanation for how [Child]
               obtained her bruises. He has provided theories, but openly
               admits that he spanked her and that there were no bruises on her
               bottom when did so.


       Order on Fact Finding Hearing at 4, ¶ s.


[15]   We are mindful, of course, that corporal punishment remains legal in the State

       of Indiana. See Ind. Code § 31-34-1-15 (“This chapter does not . . . [l]imit the

       right of a parent . . . to use reasonable corporal punishment when disciplining

       [a] child.”). However, such punishment must still be reasonable, and the extent

       of Child’s injuries suggest otherwise. Therefore, in light of the evidence

       presented, Father’s failure to rebut the presumption that Child was CHINS, and

       the juvenile court’s unchallenged findings, we conclude Father has failed to

       demonstrate the juvenile court’s judgment is clearly erroneous.



       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1831 | January 25, 2019   Page 11 of 13
                           B. Coercive Intervention was Necessary
[16]   Next, Father argues there was insufficient evidence to demonstrate that

       coercive intervention was necessary. “The purposes of a CHINS case are to

       help families in crisis and to protect children, not punish parents.” Matter of

       D.P., 72 N.E.3d 976, 980 (Ind. Ct. App. 2017). And, in order for a child to be a

       CHINS, DCS must prove not only that one or the other of the parents suffers

       shortcomings, but also that the parents are unlikely to meet a child’s needs

       absent coercive court intervention. Id.


[17]   In support of his argument, Father relies on In the Matter of E.K. v. Indiana Dep’t

       of Child Servs., where we reversed a CHINS adjudication for insufficient

       evidence that coercive intervention was necessary. 83 N.E.3d 1256, 1261 (Ind.

       Ct. App. 2017), trans. denied. There, DCS’s intervention was based upon one

       incident in which father spanked his child “too hard in an effort to cease an

       ongoing temper tantrum.” Id. at 1262. There was no evidence that father had

       previously excessively disciplined the child and after the incident father fully

       cooperated with DCS, signed a safety plan which included a prohibition on

       corporal punishment, engaged with home-based counseling, underwent a

       psychological examination, and voluntarily participated in an online support

       group for persons with bipolar disorder. We find these facts distinguishable

       from those now before us.


[18]   Here, the record demonstrates that Father’s actions were the result of an

       ongoing pattern of parenting—not a single lapse of judgment. After all, DCS


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1831 | January 25, 2019   Page 12 of 13
       had previous involvement with Father for the same reasons and despite

       completing discipline and potty training classes, Father continued to express a

       preference for spanking Child while encouraging Mother to do the same. See

       Lang v. Starke County OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007) (noting

       that a court may consider a parent’s response, or lack thereof, to services offered

       in the context of the termination of parental rights), trans. denied. Moreover,

       Father’s potential for progress without coercive intervention seems particularly

       unlikely given the fact that he denies Child’s injuries were the result of such

       discipline. Accordingly, we conclude DCS presented sufficient evidence to

       conclude coercive intervention was necessary.



                                               Conclusion
[19]   For the reasons stated above, we conclude the juvenile court did not err in

       adjudicating Child to be a CHINS. We therefore affirm.


[20]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1831 | January 25, 2019   Page 13 of 13
