Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                     Feb 04 2014, 10:10 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS:                          ATTORNEYS FOR APPELLEE:

PATRICIA CARESS MCMATH                            GREGORY F. ZOELLER
Marion County Public Defender Agency              Attorney General of Indiana
Indianapolis, Indiana
                                                  ROBERT J. HENKE
                                                  Office of the Indiana Attorney General
                                                  Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

IN THE MATTER OF C.U.,                )
A CHILD IN NEED OF SERVICES,          )
                                      )
C.U. and J.U.,                        )
                                      )
       Appellants-Respondents,        )
                                      )
               vs.                    )                       No. 49A05-1307-JC-354
                                      )
INDIANA DEPARTMENT OF CHILD SERVICES, )
                                      )
       Appellee-Petitioner.           )


                     APPEAL FROM THE MARION SUPERIOR COURT
                     The Honorable Danielle Gaughan, Judge Pro Tempore
                             Cause No. 49D09-1304-JC-12375


                                       February 4, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge
                             STATEMENT OF THE CASE

       C.U., Sr. (“Father”) and J.U. (“Mother”) (collectively, “the Parents”) appeal the

trial court’s adjudication of their child, C.U. (“the Child”), as a child in need of services

(“CHINS”). The Parents present a single issue for our review, namely, whether the

evidence supports the trial court’s determination that the Child is a CHINS under Indiana

Code Section 31-34-1-1. We affirm.

                        FACTS AND PROCEDURAL HISTORY

       C.U. was born on December 22, 2000, to Father and the Child’s biological mother.

The Child and his siblings resided with the biological mother in Daviess County. In

2008, the Child and his siblings were found to be CHINS and were removed from the

custody of the biological mother. When that CHINS case closed in 2012, the Child and

his siblings were placed with Father and his wife, Mother, who subsequently adopted all

of Father’s children.

       During the course of the Daviess County CHINS proceeding, C.U. had been

treated as an in-patient and an outpatient for mental health issues. C.U. also received SSI

benefits for “his mental and emotional disabilities.” Transcript at 5. The Child also

received services in 2012, and the same year Father and Mother engaged in services

through DCS before the Child and his siblings were placed with the Parents. The Child

continued in therapy for several months until shortly before April 2013. The therapy

ended due to scheduling difficulties.

       On April 2, 2013, the Child reported to a neighbor that Mother had abused him.

The Child was transported to Riley Hospital, where medical personnel examined C.U.


                                             2
and found petechiae1 around both of the Child’s eyes and on his neck, which is consistent

with strangulation, and bruising and abrasions on his face, abdomen, arms, and legs. The

Child also reported that Mother had sat on him and had hit and strangled him and that his

parents hit him often. Medical personnel reported the case to DCS, and DCS placed the

Child in the emergency shelter care section of Lutherwood in Indianapolis.

        On April 4, DCS filed a request to file a petition alleging the Child was a CHINS

and, with court approval, filed a petition alleging the Child to be a CHINS under Indiana

Code Sections 31-34-1-1 and -2. The same day, the trial court held an initial hearing and

a detention hearing, which the Parents attended. The Parents denied the allegations in the

CHINS petition, and the trial court continued the Child’s placement at the emergency

shelter care section of Lutherwood. At some point the Child’s behavior necessitated his

transfer to the inpatient juvenile psychiatric ward at Community North Hospital. On May

12, the court held a fact-finding hearing. By the time of that hearing, the child had been

discharged from Community North and was in the residential section of Lutherwood. At

the conclusion of the hearing, Father’s attorney asked the trial court to amend the CHINS

petition to conform to the evidence. In particular, Father requested that trial court to

consider the Child to be a CHINS under Indiana Code Section 31-34-1-6, but the trial

court denied the motion. And on June 5, the court approved its fact-finding order, which

provides in part:



        1
          “Petechiae” are “pinpoint, round spots that appear on the skin as a result of bleeding under the
skin.   The bleeding causes the petechiae to appear red, brown or purple.”                  Mayo Clinic,
http://www.mayoclinic.org/symptoms/petechiae/basics/definition/sym-20050724 (last visited January 16,
2014). “Petechiae commonly appear in clusters and may look like a rash. Usually flat to the touch,
petechiae don't lose color when you press on them.” Id.
                                                    3
4.     [The Child] is presently in a residential placement at Lutherwood
and has been there since April 12, 2013.
5.     Father wants [the Child] to stay in Lutherwood. He does not want
[the Child] to live with him right now. Father admits refusing to pick [the
Child] up at Lutherwood in April and also admits that he refused to
participate in home builders [sic] services offered by MCDCS. By his own
admission Father has not been to see [the Child] at Lutherwood.
6.     The family has had previous DCS involvement in Davies[s] County
in 2008. At that time a number of services were referred for [the Child].
[The Child] was then placed with Father and his wife and [the Child’s]
behaviors seemed to stabilize for a few months.
7.     After a few months, however, the violent and aggressive behaviors
returned.
8.     Father states that [the Child] was in therapy when he first came to
live with him; his last therapy appointment was a few months ago. Father
does not believe that [the Child] benefits from therapy and that is why he
did not participate with home builders [sic].
9.     Father states that he “is done” after 5 1/2 years of “dealing with
this.”
10.    Father acknowledges “whooping [the Child] with his hand.”
11.    Mother acknowledges that they do not want to participate in any
more services. Mother feels the family has been through therapy, nothing
has improved and they are not willing to put their other children through
this anymore. Mother states that she would only want to be reunified with
[the Child] if she knew he would not hurt the other children anymore.
12.    On or about April 2, 2013[,] MCDCS received a report that [the
Child] had been physically abused. CPS investigator[] Donald Summer
was assigned to the case. He went over the allegations with Mother. [The
Child] had small spots around his eyes and neck. Mother admitted putting
[the Child] in a hold on the couch because of his severe behavioral
problems. When he tried to leave the house, she put him in a hold on the
floor; she admitted to straddling him on the floor. Mother indicated that
[the Child] had been in therapy but the family had discontinued therapy.
13.    Donald Summer also spoke to Father who admitting to giving [the
Child] a whooping with his hand or a paddle.
14.    Home Builders [sic] services were offered but the family refused.
The parents said that [the Child] has had intensive services in the past and
participating in these services would only disrupt the family.
15.    Both parents refused to pick [the Child] up at Lutherwood. They
said that his presence in the home would be disruptive and that he was a
danger to the family.
16.    Donald Summer observed [the Child] to have may marks and bruises
on his body. He had marks on his neck and around his eyes.


                                     4
17.     [The Child] was removed from the home and the allegations were
substantiated because of statements by medical personnel and because of
parent’s [sic] refusal to pick him up at Lutherwood.
18.     Candra Limburg is the ongoing family case manager assigned to this
case. She has referred wrap[-]around services for this family but the
parents have not participated.
19.     MDCDS is recommending services for [the Child], as well as
services for the family
20.     Melissa Lewis is a residential therapist at Lutherwood and is the
residential therapist for [the Child] and has been since his admission to
Lutherwood on April 12, 2013. Ms. Lewis recommends continued therapy
for [the Child] because he struggles with anger management and aggressive
outbursts. Ms. Lewis also recommends family therapy so that issues are
being addressed with a team approach. Ms. Lewis also recommends that
the parents visit with [the Child]. To the best of her knowledge, parents
have not visited him.
21.     Parents concede that [the Child] is a child in need of services, but
argue that he is a child in need of services under I.C. 31-34-1-6 because
[he] substantially endangers his own health and the health and safety of his
family. [The Child’s] behaviors are challenging, aggressive and destructive
at times but parents stopped therapy for a few months after the prior DCS
involvement, have not participated in therapy since that time, have refused
to pick [the Child] up at Lutherwood, have refused to participate in services
or in [the Child’s] treatment since [the Child] was placed in Lutherwood,
and have not visited [the Child] since his placement at Lutherwood, in
effect abandoning him.
22.     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 parents, guardian or custodian to supply the child with necessary
food, clothing, shelter, medical care, education or supervision. [The Child]
has behavioral problems; there has been prior DCS history and he has had
therapy. The family, however, ended the therapy, and now does not want
to participate in therapy and does not want him in the home. Services have
been referred, family therapy has been recommended and both parents have
refused to participate. They have never visited their son at Lutherwood.
Parent’s [sic] position seems to be that therapy has not helped in the past
and will not help and so they have simply quit and refused to participate.
23.     The child needs care, treatment or rehabilitation that he is not
receiving and that he is unlikely to be provided or accepted without the
coercive intervention of the court. The parents have refused to participate
in services, they have refused to pick [the Child] up at Lutherwood, and
they have refused to visit him at Lutherwood. Parents have made it clear
that they do not want [the Child] home and think he should be
institutionalized.
                                     5
Appellant’s App. at 55-58. The trial court then found that C.U. was a CHINS and

continued his placement at Lutherwood.

       On June 20, DCS filed its dispositional report, and on June 21 the trial court held

the dispositional hearing. On the same date, the court issued its dispositional decree and

parental participation order, continuing the Child’s placement at Lutherwood and

ordering the parents and siblings to participate in services as recommended by DCS. The

Parents now appeal.

                            DISCUSSION AND DECISION

       The Parents appeal the trial court’s adjudication of C.U. as a CHINS. Indiana

Code Section 31-34-1-1 provides that a child is a child in need of services if, before the

child becomes eighteen 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 DCS has the

burden of proving by a preponderance of the evidence that a child is a CHINS. Ind. Code

§ 31-34-12-3; Davis v. Marion Cnty. Dep’t of Child Servs. (In re M.W.), 869 N.E.2d

1267, 1270 (Ind. Ct. App. 2007). When reviewing the sufficiency of the evidence to

support a CHINS adjudication, we consider only the evidence favorable to the judgment

and the reasonable inferences raised by that evidence. In re M.W., 869 N.E.2d at 1270.

This court will not reweigh evidence or judge witnesses’ credibility. Id.
                                             6
       Moreover, the trial court entered findings of fact and conclusions thereon pursuant

to Indiana Trial Rule 52(A). We may not set aside the findings or judgment unless they

are clearly erroneous. Ind. Trial R. 52(A); Menard, Inc. v. Dage–MTI, Inc., 726 N.E.2d

1206, 1210 (Ind. 2000). In our review, we first consider whether the evidence supports

the factual findings. Menard, 726 N.E.2d at 1210. Second, we consider whether the

findings support the judgment. Id. “Findings are clearly erroneous only when the record

contains no facts to support them either directly or by inference.” Quillen v. Quillen, 671

N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous if it relies on an incorrect

legal standard. Menard, 726 N.E.2d at 1210. We give due regard to the trial court’s

ability to assess the credibility of witnesses. T.R. 52(A). While we defer substantially to

findings of fact, we do not do so to conclusions of law. Menard, 726 N.E.2d at 1210.

We do not reweigh the evidence; rather we consider the evidence most favorable to the

judgment with all reasonable inferences drawn in favor of the judgment. Yoon v. Yoon,

711 N.E.2d 1265, 1268 (Ind. 1999).

       The Parents contend that the evidence does not support the trial court’s

determination that the Child is a CHINS under Indiana Code Section 31-34-1-1.

Specifically, they argue that the evidence does not support a finding that they were

negligent because there is no evidence that the Child’s “physical or mental condition was

seriously impaired or seriously endangered as a result of the inability, refusal or neglect

of the [C]hild’s parent, guardian, or custodian to supply the child with necessary food,

clothing[,] shelter, medical care, education or supervision, as required by I.C. § 31-34-1-

1.” Appellants’ Brief at 8. We cannot agree.


                                            7
       The Parents rely on this court’s opinion in J.H. v. Ind. Dep’t of Child Servs. (In re

V.H.), 967 N.E.2d 1066, 1072 (Ind. Ct. App. 2012), where we reversed a CHINS

adjudication and parental participation order. There, in April 2011 the mother called for

police assistance when her sixteen-year-old daughter became physically aggressive with

her. Based on a police report to the DCS that the daughter had been a victim of physical

abuse, DCS began an investigation.        In May 1, before the investigation had been

completed, Mother again telephoned police after an altercation with the daughter. The

daughter was arrested and placed at the emergency shelter care at Lutherwood. The trial

court ultimately determined that the daughter was a CHINS.

       On appeal, the mother challenged the trial court’s finding of neglect and that the

coercive intervention of the court was necessary to provide for the daughter’s needs.

Before the DCS had become involved, the mother had taken the daughter to Gallahue

Mental Health Services for an assessment, where the daughter had been diagnosed with

Oppositional Defiant Disorder. The daughter had attended three group therapy sessions

before the April call to police. And the mother had helped to develop the daughter’s

individual education plan at school to include the special education services the daughter

needed. Based on that evidence, showing that the mother was indeed providing for the

daughter’s needs, we reversed the CHINS adjudication and parental participation order.

Id. at 1073.

       The facts in In re V.H. are distinguishable. Here, the Parents initially participated

in services when the DCS was involved prior to the Child’s placement with the Parents

and adoption by Mother. But, despite the Child’s prior history of outbursts, violent


                                             8
behavior, and prior institutionalizations, the Parents discontinued the Child’s therapy due

to “scheduling difficulties.” Transcript at 30. When the Child’s behavior escalated,

Mother employed restraint techniques that had not been taught to her, resulting in an

altercation with the Child in which the Child sustained petechiae on the neck and eyes

consistent with choking as well as bruising and abrasions on his face, abdomen, arms,

and legs. And following the Child’s placement by the DCS in emergency shelter care,

the Parents refused the DCS’ recommendation that the Child return home with

appropriate services. Instead, the Parents declined to pick up the Child from Lutherwood,

did not visit the Child at Lutherwood, and refused to participate in services offered to

them by the DCS. We agree with the trial court that such evidence supports a finding that

the Parents abandoned the Child.

       In sum, the Parents refused to provide shelter or treatment for the Child, leaving

the Child’s care in the hands of the DCS. Although the Parents testified that the Child

needs to be institutionalized, they took no steps to acquire such treatment for him and

only assured the continuation of that treatment by their non-participation in the Child’s

life. These facts support the trial court’s determination that the Child’ physical or mental

condition was seriously impaired or seriously endangered as a result of the Parents’

inability, refusal, or neglect in supplying the Child with the necessary shelter, medical

care, or supervision and that the Child was in need of care, treatment, or rehabilitation

that the Child was not receiving and was unlikely to be provided or accepted without the

coercive intervention of the court. See Ind. Code § 31-34-1-1. The Parents’ arguments to




                                             9
the contrary amount to a request that we reweigh the evidence, which we will not do.2 In

re M.W., 869 N.E.2d at 1270.

        The Parents also argue that the trial court should have adjudicated the Child a

CHINS under Indiana Code Section 31-34-1-6 because the Child substantially endangers

his own health or the health of another, namely, his family members. But we have

already found that the evidence supports the trial court’s findings and conclusion that the

Child is a CHINS under Section 31-34-1-1. Thus, whether the evidence would have

supported a determination under Section 31-34-1-6 is not properly before us. Moreover,

the trial court observed that, when a CHINS petition is filed under Section 31-34-1-6,

counsel must be appointed for the Child. Here, when Father moved to amend the

pleadings to conform to the evidence to consider a CHINS determination under Section

31-34-1-6, the trial court observed that the CHINS petition had not been filed under that

section and, therefore, the Child had not been given the benefit of counsel. As such, the

trial court refused to consider a CHINS determination under Section 31-34-1-6. The

Parents have not shown that the trial court erred when it refused to make a CHINS

determination under that statute.

        Affirmed.

BAKER, J., and CRONE, J., concur.




        2
          The Parents also argue that the DCS “cannot carry its burden to prove Mother and Father were
refusing to meet C.U.’s needs when it could not prove what Mother and Father had to do to meet his
needs.” Appellant’s Brief at 11-12. But the Parents refused to provide shelter for the Child, at home or
elsewhere, and left all decisions regarding his mental health care to the DCS. That evidence satisfies the
DCS’ burden of proof.
                                                   10
