MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                            Jul 09 2015, 7:44 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Michael B. Troemel                                        Gregory F. Zoeller
Lafayette, Indiana                                        Attorney General of Indiana
                                                          Robert J. Henke
                                                          Abigail R. Miller
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of T.D., A Child                            July 9, 2015
Alleged To Be In Need Of                                  Court of Appeals Case No.
Services,                                                 79A02-1411-JC-790
                                                          Appeal from the Tippecanoe
                                                          Superior Court
W.D., Father
                                                          The Honorable Faith A. Graham,
Appellant-Respondent,                                     Judge
                                                          Cause No. 79D03-1408-JC-237
        v.

The Indiana Department of Child
Services,
Appellee-Petitioner.




Brown, Judge.


Court of Appeals of Indiana | Memorandum Decision 79A02-1411-JC-790 | July 9, 2015            Page 1 of 14
[1]   W.D. (“Father”) appeals from the trial court’s order determining that T.D. is a

      child in need of services (“CHINS”). Father raises one issue which we revise and

      restate as whether sufficient evidence supports the court’s determination that T.D.

      is a CHINS. We affirm.


                                            Facts and Procedural History

[2]   S.E. (“Mother”) has five children: A.E., age 15, A.L., born September 29, 2008,

      J.L., born July 22, 2010, L.G., born November 12, 2012, and T.D., born August

      21, 2014.1 Father is the father of T.D. The Department of Child Services (“DCS”)

      took T.D. into protective custody upon her release from the hospital shortly after

      birth. Along with Mother, Father has been primarily responsible for the care of

      A.L., J.L., and L.G. for the time period relevant in the CHINS case.


[3]   In November 2013, L.G. was seen by a primary care physician for swollen

      testicles, hair loss, and bruising to his face. The physician was concerned that L.G.

      may have an upper respiratory condition and advised Mother to take him to the

      emergency room. However, Mother failed to do so. In January 2014, L.G. was

      taken to the emergency room “for a red penis . . . with a hair at the tip of the penis

      and bruising on the penis,” and he was “given a diagnosis of hair tourniquet

      syndrome.” Transcript at 25-26. In February 2014, he was seen again by a

      primary care physician because his penis was red and bruised. That physician




      1
        Mother does not participate in this appeal. A.E. was not included in the CHINS petition because she was in the
      third-party custody of her grandmother.

          Court of Appeals of Indiana | Memorandum Decision 79A02-1411-JC-790 | July 9, 2015              Page 2 of 14
      assumed the redness and bruising was caused by another hair tourniquet though

      there was no description of hair being present at that time.


[4]   In May 2014, L.G. fractured his clavicle, and was taken to the hospital by Mother.

      On June 11, 2014, Mother took him to the emergency room with “cough, fever,

      and a rash,” which was described as a “viral type rash on the trunk of his body”

      and “petechial rash on his face.”2 Id. at 27. He had a normal platelet count at that

      time and was given a diagnosis of upper respiratory infection and pneumonia. The

      next day, L.G. was again seen in the emergency room “with head swelling and

      mushiness to his scalp.” Id. A skull x-ray revealed some soft tissue swelling on the

      back of his head, but the physicians “did not do any additional laboratory

      evaluations at that time.” Id.


[5]   On June 17, 2014, L.G. was taken to the emergency room by Mother for “swelling

      of his face and his head.” Id. A physical examination revealed “swelling to the

      scalp, to his forehead, and to his nasal bridge. He was given a diagnosis of acute

      scalp swelling,” and the physicians conducted a CT scan of his head, which

      showed scalp swelling and fluid in the scalp along with what was “probably

      blood.” Id. at 27-28. On June 19, 2014, at the insistence of DCS, Mother and

      Father returned L.G. to the emergency room, with two black eyes and severe


      2
          Dr. Roberta Hibbard testified:

                   Petechiae are hemorrhages in the skin. They are small pin point, non-blanching bruises basically
                   on the face that are typically associated with strangulation type injuries or choking types of
                   injuries. They can also be seen in medical conditions where the platelet count is really low.
                   Some types of really horrific coughing as in Pertussis, you might get a few petechiae on the face.

          Transcript at 27.

            Court of Appeals of Indiana | Memorandum Decision 79A02-1411-JC-790 | July 9, 2015                 Page 3 of 14
      swelling to both of his eyelids. The physicians again noted the appearance of

      petechiae on his clavicle and chest wall. A skeletal survey and other laboratory

      evaluations were performed to look for causes of his condition. It was discovered

      he was anemic, likely due to blood loss, his coagulation studies were normal

      indicating he did not have any bleeding disorders, and the skeletal survey

      confirmed that the fracture to his clavicle was healing and also revealed a healing

      fracture in the forearm on the same side as the clavicle fracture.


[6]   Four days after T.D. was born, on August 25, 2014, DCS filed a CHINS petition

      regarding T.D. based on concerns that Father had abused or failed to provide

      adequate supervision to A.L., J.L., and L.G. The CHINS petition incorporated

      DCS’s Preliminary Inquiry and Investigation Report, which included allegations

      that A.L., J.L., and L.G. had been placed in foster care on June 19, 2014 due to

      concerns of physical abuse against L.G. The petition noted that Mother and

      Father were the only primary caregivers to the children and while in their care,

      L.G. had sustained many injuries including a broken collarbone, buckle fracture of

      the right forearm, head injury resulting in fluid on the brain, 3 bruising on his penis,

      and a red and swollen scrotum, and explanations for the injuries had been

      inconsistent. The petition also stated that Mother and Father assigned blame to

      the other children for causing the injuries, the other children denied injuring L.G.

      and said that Father choked them, and that “Dr. Hibbard at Riley Children’s




      3
       At the fact finding hearing, Dr. Hibbard clarified that there was no fluid on L.G.’s brain, but that the fluid was
      between the skin of the scalp and the bone of the skull.

          Court of Appeals of Indiana | Memorandum Decision 79A02-1411-JC-790 | July 9, 2015                  Page 4 of 14
      Hospital commented the high number of ‘accidental’ injuries is concerning and

      should be investigated.” Appellant’s Appendix at 21.


[7]   The court conducted a fact finding hearing concerning the CHINS petition on

      September 5 and September 19, 2014. The court heard testimony from Family

      Case Manager Melissa Haywood, Dr. Hibbard, Mother, Mother’s oldest child

      A.E., and Father. On October 15, 2014, the court entered an order in which it

      adjudicated T.D. a CHINS.4 Among numerous other findings, the order states:

            5. DCS received a report January 2013 alleging that [L.G.] had bruises on
               his penis. Investigation confirmed bruising on the penis. However, DCS
               was unable to determine either the perpetrator or the mechanism of injury.
               There was at least some indication that one of the other children might
               have pulled on the penis. Therefore, DCS unsubstantiated that report.
            6. DCS received a second report November 2013 that [L.G.] had a red and
               swollen scrotum. Investigation revealed the scrotum was red and swollen.
               There was some indication of a potential diagnosis of a hair tourniquet
               causing such symptoms. DCS unsubstantiated the second report.
            7. DCS received a third report May 2014 alleging [L.G.] suffered a fractured
               collarbone. Investigation confirmed the collarbone was fractured. Mother
               reported [L.G.] walked in front of another child who was swinging and
               was kicked. However, during an interview [A.E.] disclosed Mother stated
               the collarbone was injured at daycare. [A.E.] recanted this statement
               during testimony stating she “got the story mixed up” and only
               “assumed” the injury occurred at daycare. At the Fact Finding Hearing,
               Mother’s friend testified that [L.G.] was struck by a swinging child at her
               daughter’s birthday party causing him to be knocked over and sustain a
               bloody nose.
            8. DCS received a fourth report June 2014 alleging [L.G.] suffered a head
               injury. Investigation confirmed the head injury. Mother’s boyfriend,
               [Father], provided childcare during Mother’s weekend employment hours.
               [Father] stated an older sibling, [J.L.] (age 4) jumped on [L.G.]. A full

      4
          The court similarly adjudicated A.L., J.L., and L.G. as CHINS in its order.


            Court of Appeals of Indiana | Memorandum Decision 79A02-1411-JC-790 | July 9, 2015   Page 5 of 14
    body scan revealed the healing collarbone. It also revealed a healing
    buckle fracture in the forearm. Mother was unable to provide any
    explanation for the fractured forearm except perhaps as the result of the
    daycare provider picking the child up by the arm a few days after the
    collarbone injury.
9. The older children, [A.L.] and [J.L.], were interviewed and disclosed that
   [Father] choked and hit [L.G.]. The children disclosed that [Father] also
   choked them. The children further disclosed seeing Mother and [Father]
   engaging in sex. Law enforcement was unable to contact [Father] to
   conduct an interview.
                                           *****
12. The older children had no signs of injury but were removed due to the
    younger child’s unexplained injuries because, even if Mother did not
    directly cause the injuries, Mother either failed to supervise and/or failed
    to protect against injury.
                                          *****
14. Dr. Roberta Hibbard is a pediatric physician specially trained to assess
    potential child abuse. Although Dr. Hibbard did not physically examine
    [L.G.], she did review photos of the relevant injuries in addition to his
    medical records including lab and radiology reports in relation to medical
    care provided on December 12, May 6, June 11, June 12, June 17, and
    June 19. Dr. Hibbard also reviewed the Preliminary Inquiry and the
    proffered explanations for the child’s various injuries. Dr. Hibbard had
    sufficient information upon which to develop an opinion regarding the
    nature of the child’s injuries.
15. In November 2013, [L.G.] was seen by his Primary Care Physician for
    swollen testicles, bruising on his penis and face, and hair loss. Mother
    was advised to take [L.G.] to the emergency room and failed to do so.
16. In January 2014, [L.G.] was examined at the emergency room for a red
    and bruised penis. A medical provider provided a diagnosis of hair
    tourniquet syndrome. A hair tourniquet acts like a ligature and would
    result in a sharp line with swelling and discoloration. It would not result
    in bruising on the tip of the penis.
17. In February 2014, [L.G.] was again seen by his Primary Care Physician
    for a red and bruised penis.



Court of Appeals of Indiana | Memorandum Decision 79A02-1411-JC-790 | July 9, 2015   Page 6 of 14
18. In May 2014, [L.G.] was examined at the emergency room for pain near
    the collarbone and diagnosed with a clavicle fracture. The proffered
    explanation of being hit after walking in front of a swinging child is
    plausible. A fall to the ground on an outstretched arm is a common
    mechanism for such an injury.
19. On June 11, 2014, [L.G.] was examined at the emergency room for a
    suspected viral rash resulting in a diagnosis of upper respiratory
    infection/pneumonia. The suspected viral rash observable on the trunk
    and face area was actually petechiae commonly associated with choking
    or strangulation.
                                           *****
22. The injuries on the back of the skull combined with the unexplained
    swelling and bleeding under the scalp are consistent with an impact to the
    head. The petechiae component is particularly consistent with the
    disclosures of choking. Unexplained bruises to the penis are very unusual
    at this age and repeat injuries to the penis are a “big red flag”. Accidental
    injuries to the penis will generally have a known cause. A hair tourniquet
    is not consistent with the type of injuries observed on the child’s penis.
    Dr. Hibbard testified that boys with bruised penises often later suffer more
    severe injuries. There is a reasonable probability the injuries to the child
    are non-accidental.
23. Mother works full-time approximately forty (40) hours per week between
    6:00 AM and 4:00 PM. [Father] provided childcare for the children on
    alternating weekends during Mother’s hours of employment. There were
    no other caregivers for the children during the relevant time period with
    the exception of the childcare facility. [Father] denies he did anything to
    injure [L.G.] intentionally.
24. When questioned during the investigation regarding [Father], Mother
    reported uncertainty about continuing the relationship suggesting she may
    return once the DCS case closed. Mother has continued to maintain
    contact with [Father] throughout the pendency of this case. Mother state
    [sic] the two are not in a relationship now. Mother testified she considers
    [Father] a friend who has not done anything to the children except be
    there for them. Mother asserts she did not see anyone harm the children
    including [Father].
                                           *****



Court of Appeals of Indiana | Memorandum Decision 79A02-1411-JC-790 | July 9, 2015   Page 7 of 14
26. Although Mother sought medical treatment for the child’s various injuries,
    she is unwilling to accept even the possibility that the repetitive injuries
    without sufficient explanation are the result of non-accidental trauma
    despite medical evidence to the contrary.
27. Although Mother has cooperated with recommendations for services thus
    far including a parenting assessment, psychological evaluation, and
    supervised visitation, it is unlikely Mother would accept services without
    coercive intervention given her refusal to acknowledge non-accidental
    harm to the child and her ongoing contact with [Father].
28. IC 31-34-1-1 (“CHINS 1”) specifically provides as follows: The children’s
    physical or mental condition is seriously impaired or seriously endangered
    as a result of the inability, refusal, or neglect of the children’s parent(s),
    guardian(s), or custodian(s) to supply the children with necessary food,
    clothing, shelter, medical care, education, or supervision.
                                           *****
30. Pursuant to IC 31-34-12-4, there is a rebuttable presumption that a child is
    in need of services because of an act or omission of the child’s parent,
    guardian, or custodian if DCS introduces evidence of probative value that
    (1) the child has been injured, (2) at the time the child was injured, the
    parent, guardian, or custodian either had the care, custody, or control of
    the child or 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 the parent, guardian, or custodian, and (4) there is a
    reasonable probability the injury was not accidental. DCS presented such
    evidence. Mother and [Father] failed to rebut such presumption.
                                           *****
34. Although it is uncertain whether Mother herself or [Father] inflicted the
    injuries to [L.G.], there is no question the child suffered harm while under
    the care of Mother as a parent or [Father] as a custodian.
35. Mother either failed to supervise the children, failed to protect the children
    from exposure to injury, or both. The Court is not required to wait until a
    greater tragedy occurs or until the other children suffer a similar harm
    before intervening.
    Court finds it is in the best interests of the children to be removed from the
    home because continuation in the home would not be in the best interest
    of the children and would be contrary to the welfare of the children.


Court of Appeals of Indiana | Memorandum Decision 79A02-1411-JC-790 | July 9, 2015   Page 8 of 14
             The responsibility for the placement of the children is granted to the
             Tippecanoe County Department of Child Services.
             Court finds the least restrictive placement for the children is continued
             placement in foster care.


      Id. at 38-41.


[8]   On November 10, 2014, the court held a dispositional hearing and issued its

      dispositional order for Father, which provides in part that Father must abide by the

      terms of the Parental Participation Decree, submit to drug and alcohol screens,

      attend supervised visitations with T.D., and participate in services focusing on

      personal development and learning about effective and safe methods of discipline

      including the impact that abuse and domestic violence has upon children.

      Additionally, the dispositional order confirmed the adjudication of the children as

      CHINS and ordered their placement in foster care to continue.


                                                      Discussion

[9]   The issue is whether sufficient evidence supports the trial court’s determination

      that T.D. is a CHINS. When we review the sufficiency of evidence, we consider

      only the evidence and reasonable inferences therefrom that are most favorable to

      the judgment. In re A.H., 913 N.E.2d 303, 305 (Ind. Ct. App. 2009). We neither

      reweigh the evidence nor reassess the credibility of the witnesses. Id. DCS is

      required to prove by a preponderance of the evidence that a child is a CHINS. Id.

      When a court’s orders contain specific findings of fact and conclusions of law, we

      engage in a two-tiered review. Id. First, we determine whether the evidence

      supports the findings. Id. Then, we determine whether the findings support the


         Court of Appeals of Indiana | Memorandum Decision 79A02-1411-JC-790 | July 9, 2015   Page 9 of 14
       judgment. Id. We reverse the trial court’s judgment only if it is clearly erroneous.

       Id. A judgment is clearly erroneous if it is unsupported by the findings and

       conclusions. Id. When deciding whether the findings are clearly erroneous, we

       consider only the evidence and reasonable inferences therefrom that support the

       judgment. Id.


[10]   Ind. Code § 31-34-1-1 governs the CHINS determination as to T.D. and provides:

          A child is a child in need of services if before the child becomes eighteen (18)
          years of age:
                  (1) the child’s physical or mental condition is seriously impaired or
                  seriously endangered as a result of the inability, refusal, or neglect of
                  the child’s parent, guardian, or custodian to supply the child with
                  necessary food, clothing, shelter, medical care, education, or
                  supervision; and
                  (2) the child needs care, treatment, or rehabilitation that:
                           (A) the child is not receiving; and
                           (B) is unlikely to be provided or accepted without the coercive
                           intervention of the court.


       The CHINS statute does not require a tragedy to occur before a court may

       intervene. In re A.H., 913 N.E.2d at 306. “Rather, a child is a CHINS when he or

       she is endangered by parental action or inaction.” Id. “The purpose of a CHINS

       adjudication is not to punish the parents, but to protect the children.” Id.


[11]   Father argues that the evidence is insufficient to sustain the trial court’s conclusion

       that T.D. was a CHINS. Specifically, he contends that the evidence does not

       support Findings 5, 6, 8, 9, 12, 14, 15, 16, 17, and 34 of the court’s order and that

       the trial court’s findings do not support the conclusion that T.D. was seriously

          Court of Appeals of Indiana | Memorandum Decision 79A02-1411-JC-790 | July 9, 2015   Page 10 of 14
       endangered. DCS argues that the unchallenged findings taken apart from the

       challenged findings support the trial court’s conclusions and that the challenged

       trial court findings are supported by the evidence. DCS concedes that some of

       Father’s arguments concerning the challenged findings have merit, but argues that

       most of the challenges are simply requests to reweigh the evidence.


[12]   To the extent that Father challenges Findings 5, 6, 8, 12, 15, 16, and 17, he does

       not argue that the injuries described in or underlying those findings did not occur.

       Instead, Father asserts that the court did not adequately take into account

       testimony that tends to mitigate Mother and Father’s role in the occurrence of the

       injuries to L.G.


[13]   Father challenges Finding 9, and argues that the statements on which it is based

       were hearsay.5 However, Father failed to object to the admission of the statements

       he now challenges. Accordingly, we conclude that Father has waived this issue on

       appeal. See Cavens v. Zaberdac, 849 N.E.2d 526, 533 (Ind. 2006) (“In order to

       properly preserve an issue on appeal, a party must, at a minimum, ‘show that it

       gave the trial court a bona fide opportunity to pass upon the merits of the claim

       before seeking an opinion on appeal.’” (quoting Endres v. Ind. State Police, 809

       N.E.2d 320, 322 (Ind. 2004))).


[14]   Father challenges the portion of Finding 14 that asserts Dr. Hibbard had sufficient

       information to form her opinion and argues that she could not have had sufficient

       information because she failed to speak with either Mother or Father. Ind.

       5
           In his brief, Father cites to Finding 10, but refers to the substance of Finding 9.


              Court of Appeals of Indiana | Memorandum Decision 79A02-1411-JC-790 | July 9, 2015   Page 11 of 14
       Evidence Rule 703 provides that an expert witness may base her opinion on “facts

       or data in the case that the expert has been made aware of or personally observed”

       and that “[e]xperts may testify to opinions based on inadmissible evidence,

       provided that it is the type reasonably relied upon by the experts in the field.” Dr.

       Hibbard reviewed the DCS intake report regarding the preliminary investigation,

       medical records, photographs, and a radiology CD in forming her opinion, all of

       which are of the type a physician may reasonably rely upon in testifying as an

       expert witness. Furthermore, a physician acting as an expert witness need not

       examine the person in question. See Cain v. Back, 889 N.E.2d 1253, 1257 (Ind. Ct.

       App. 2008) (“Rule 703 eliminates the requirement of personal perception for

       witnesses offering expert testimony . . . .” (quoting 13 ROBERT LOWELL MILLER,

       JR., INDIANA PRACTICE, INDIANA EVIDENCE § 703.101, at 548 (3d ed. 2007))),

       trans. denied. Accordingly, we cannot say the court erred in entering Finding 14.


[15]   Father’s challenge to Finding 34 is also unpersuasive. The finding is merely that

       L.G. suffered harm while under the care and supervision of Mother and Father

       regardless of whether Mother, Father, the siblings, or some other party was

       responsible for causing the injuries. The finding that L.G. suffered harm while

       Mother, as parent, and Father, as custodian, were charged with his care and

       supervision is amply supported by the evidence presented to the trial court.


[16]   With respect to the court’s conclusion that T.D.’s physical or mental condition is

       seriously impaired or seriously endangered as a result of the actions or inactions of

       Mother and Father, the court found that the multiple injuries sustained by L.G.

       occurred while in the care of Mother and Father, but that it was uncertain whether

          Court of Appeals of Indiana | Memorandum Decision 79A02-1411-JC-790 | July 9, 2015   Page 12 of 14
       Mother and Father had inflicted the injuries themselves. Moreover, the court also

       found that “Mother either failed to supervise the children, failed to protect the

       children from exposure to injury, or both.” Appellant’s Appendix at 41. Based on

       the record and the findings establishing multiple inadequately explained injuries,

       we conclude that it is not clearly erroneous for the court to have determined that

       T.D.’s mental or physical condition was seriously impaired or endangered by

       Mother and Father’s inability, refusal, or neglect to provide the children with

       necessary supervision, or by Mother and Father’s failure to protect them from

       injury, whether such injury was inflicted by Mother, Father, or another person. See

       In re A.H., 913 N.E.2d at 306 (“[A] child is a CHINS when he or she is endangered

       by parental action or inaction.”)


[17]   Furthermore, we conclude that the findings of the trial court support the

       conclusion that T.D. needs care, treatment, or rehabilitation that is unlikely to be

       provided or accepted without the coercive intervention of the court because the

       court found it to be “unlikely Mother would accept services without coercive

       intervention given her refusal to acknowledge non-accidental harm to [L.G.] and

       her ongoing contact with [Father].” Appellant’s Appendix at 40. Based upon the

       record, we conclude that the judgment reached by the court is not clearly

       erroneous.


                                                       Conclusion

[18]   For the foregoing reasons, we affirm the trial court’s judgment that T.D. is a

       CHINS.


          Court of Appeals of Indiana | Memorandum Decision 79A02-1411-JC-790 | July 9, 2015   Page 13 of 14
[19]   Affirmed.


       Crone, J., and Pyle, J., concur.




          Court of Appeals of Indiana | Memorandum Decision 79A02-1411-JC-790 | July 9, 2015   Page 14 of 14
