MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               Jan 18 2017, 8:37 am
regarded as precedent or cited before any                                CLERK
court except for the purpose of establishing                         Indiana Supreme Court
                                                                        Court of Appeals
the defense of res judicata, collateral                                   and Tax Court


estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office LLC                                   Attorney General of Indiana
Brooklyn Indiana
                                                         Robert J. Henke
Christopher L. Arrington                                 David E. Corey
Christopher L. Arrington Attorney at                     Deputy Attorneys General
Law, P.C.                                                Indianapolis, Indiana
Danville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA
In the Matter of:                                        January 18, 2017
                                                         Court of Appeals Case No.
L.B., C.L., B.L., G.L., M.L., and T.L.                   32A01-1606-JC-1367
Children in Need of Services,
                                                         Appeal from the Hendricks
C.B. and T.B.                                            Superior Court
Appellants-Respondents,                                  The Honorable Karen M. Love,
                                                         Judge
        v.                                               Trial Court Cause Nos.
                                                         32D03-1509-JC-88
Indiana Department of Child                              32D03-1509-JC-89
Services,                                                32D03-1509-JC-90
                                                         32D03-1509-JC-91
Appellee-Petitioner.
                                                         32D03-1509-JC-92
                                                         32D03-1509-JC-93




Court of Appeals of Indiana | Memorandum Decision 32A01-1606-JC-1367 | January 18, 2017      Page 1 of 13
      Bailey, Judge.



                                          Case Summary
[1]   C.B. (“Mother”) and T.B. (“Father”) are married, each with children from a

      prior marriage. Their six minor children (the “Children”) include Father’s son,

      L.B., who was fifteen at the time of the instant proceedings, and Mother’s five

      children (“Mother’s Children”), seventeen-year-old G.L., fifteen-year-old C.L.,

      thirteen-year-old T.L., eleven-year-old B.L., and eight-year-old M.L. Father

      and Mother jointly appeal the juvenile court’s adjudication of the Children as

      children in need of services (“CHINS”), raising the sole restated issue of

      whether the evidence is sufficient to support the CHINS adjudication.


[2]   We affirm.



                            Facts and Procedural History
[3]   In the spring of 2015, Mother and Father established a residence in Pittsboro.

      Mother’s Children lived at the residence, and L.B. visited the residence on

      Wednesday evenings and also spent every other weekend there.


[4]   From August 2015 to September 2015, the Department of Child Services

      (“DCS”) received six separate reports relating to three incidents involving the

      Children. Police also responded to the residence four times over a similar

      period. The first time police responded to the residence was in early July when

      the Children were not home. Father had called 9-1-1 because Mother had

      Court of Appeals of Indiana | Memorandum Decision 32A01-1606-JC-1367 | January 18, 2017   Page 2 of 13
      placed a loaded gun in her mouth. Mother entered inpatient care for seventy-

      two hours and then began outpatient therapy.


[5]   The first reported incident involving a child occurred in early August, during

      the period when Mother was still attending outpatient therapy. Father started

      an argument with Mother while C.L., G.L., and T.L. were in the kitchen, and

      Father began yelling at Mother. Father was drinking alcohol that night, and at

      that time Father regularly drank alcohol to excess. Father told C.L. and G.L.

      to go to their rooms, but C.L. refused to leave because he was concerned about

      Mother’s and G.L.’s safety. Father continued to tell C.L. to go to his room, but

      C.L. would not leave the kitchen. Father pushed C.L. into a wall and C.L. fell

      near the stairs leading downstairs. Mother told Father not to push C.L. like

      that, and then G.L. told Father that he could not touch them like that. Father

      responded that he could touch them. Father then pushed G.L., whose head hit

      the wall. Father next “herded” C.L. approximately five feet down the hall by

      chest bumping him.


[6]   Mother told G.L. to call the police, and G.L. complied. Deputy Anthony

      Goodpaster (“Deputy Goodpaster”) responded to the call, and observed that

      Father smelled of alcohol and had glassy, bloodshot eyes. Deputy Goodpaster

      spoke with C.L., who was anxious, and could not stand in one spot. When

      Deputy Goodpaster spoke with Mother, she said there was an argument but felt

      it was not necessary for the police to be there.




      Court of Appeals of Indiana | Memorandum Decision 32A01-1606-JC-1367 | January 18, 2017   Page 3 of 13
[7]   Following the incident, Family Case Manager Sarah Ash (“FCM Ash”) of the

      Hendricks County Office of the DCS conducted an assessment. Father initially

      denied touching C.L. but eventually admitted he shoved and pushed C.L. down

      the hall. Father told FCM Ash that this was a “child problem not a parent

      problem.” (Tr. at 348.) FCM Ash also spoke with Mother, who said she

      believed Father had a drinking problem, anger issues, and was hypersensitive

      when it came to the children. Mother said that the situation between Father

      and the children was stressful and they argued, and she was happy FCM Ash

      was there because she thought FCM Ash could force Father to participate in

      services. FCM Ash observed that Mother seemed nervous when speaking, was

      looking over her shoulder, and wanted to be separate from Father when talking

      to FCM Ash. At the end of the visit, FCM Ash provided information about

      counseling services and scheduled an appointment to create a safety plan.


[8]   Before FCM Ash returned to develop a safety plan, DCS received reports about

      another incident. This incident involved L.B., who at some point prior to 2015

      was diagnosed with ADHD, and could at times enter what Father termed an

      “ADHD meltdown.” (Tr. at 780.) L.B.’s mother, D.B., lives in Noblesville,

      which is approximately forty-five minutes from Pittsboro. In late August,

      Father drove to Noblesville to pick up L.B. for midweek parenting time.

      During the drive to Pittsboro, Father discussed parenting time with L.B., telling

      L.B. that he was to cooperate when Father came to pick him up. During the

      discussion in the car, L.B. was obviously upset, “emotionally in chaos,” (Tr. at

      779), and felt caught in the middle of his parent’s high-conflict divorce. Once


      Court of Appeals of Indiana | Memorandum Decision 32A01-1606-JC-1367 | January 18, 2017   Page 4 of 13
       Father and L.B. arrived in Pittsboro, Father continued discussing parenting

       time with L.B., who became increasingly emotional. Father believed that L.B.

       entered an “ADHD meltdown,” and at some point during the “meltdown,”

       Father placed his hand on L.B.’s chest. No one else was home at the time.


[9]    Later that day, after D.B. picked up L.B., she called the Hendricks County

       Sheriff’s Department, and Deputy Goodpaster again responded to the call.

       After speaking with L.B. and D.B., Deputy Goodpaster went to Father’s and

       Mother’s home, and Father denied any physical altercation. Deputy

       Goodpaster smelled alcohol and believed that Father was intoxicated because

       of Father’s bloodshot eyes, slurred speech, and unsteadiness.


[10]   The third incident occurred in mid-September, when Father, Mother, and the

       Children were at the Pittsboro residence. Father looked out the window and

       observed L.B. and C.L. playing outside. Father claimed he saw L.B. holding a

       ditch ax, swinging it at C.L. and also using the ax to strike a fence post. Father

       yelled for the boys to come in. When the boys came inside, Father told C.L. to

       go do something else, and he did. Father then told L.B. he was going to punish

       him for damaging the fence post and because L.B. did not come inside as

       quickly as Father thought he should. Father told L.B. he was going to spank

       him with his belt. When L.B. questioned why Father was going to spank him,

       Father interpreted the questions as challenging Father’s authority. Father and

       L.B. took their argument to the enclosed porch on the back side of the home.

       Father recorded part of the encounter on his cellphone. During the encounter,

       Father repeatedly told L.B. to turn around. At one point, Father said he would

       Court of Appeals of Indiana | Memorandum Decision 32A01-1606-JC-1367 | January 18, 2017   Page 5 of 13
       take L.B. down, and L.B. urged him do it. The two then tumbled to the porch

       floor, and Father said, “Big man, huh?” L.B.’s voice became weaker and raspy

       as he kept asking Father to please get off of him.


[11]   While Father and L.B. were arguing, C.L. went around the house to the

       enclosed porch, and M.L. was with him. M.L. opened the door and gasped.

       C.L. saw L.B. on his back with Father straddling him. Father had his forearm

       pressing down on what C.L. thought was L.B.’s throat, and Father had a belt in

       his hand. The recording captured Father telling someone to give him “the

       phone” and he then shut the door. Father told C.L. that he would be next.


[12]   Father admitted that he was on top of L.B. until L.B. “went limp.” (Tr. at 873.)

       Father got off of L.B. and spanked L.B. on his buttocks. Father reprimanded

       L.B., and in a raised and angry voice repeatedly asked L.B. what he was

       thinking. Father and L.B. went inside the home, and L.B. got increasingly

       upset and entered an “ADHD meltdown” in front of Mother and the rest of the

       family. Father then took L.B. upstairs to the master bedroom. During the

       encounter upstairs, Father again spanked L.B. with his belt. Father also tried

       showing L.B. the recording of their encounter downstairs, and when Father did,

       L.B. became more and more emotional to the point of crying. C.L., G.L., M.L.

       and Mother heard Father and L.B. yelling, and went upstairs to investigate.

       When Mother opened the door, C.L. saw L.B. backed up against the wall with

       Father in his face. L.B.’s face was red, he was crying, and he looked both

       scared and angry. L.B. asked Mother to call the police. Mother went into the

       bathroom and either C.L. or G.L. called the police.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1606-JC-1367 | January 18, 2017   Page 6 of 13
[13]   Multiple officers responded to the police call, and Hendricks County Sheriff’s

       Deputy Nathan Hibschman (“Deputy Hibschman”) was the investigating

       officer. L.B. told Deputy Hibschman that he was strangled and that Father had

       been on top of him, pressing down with all of his weight. When L.B. spoke, he

       was visibly upset, on the verge of tears, and shaking. Deputy Hibschman did

       not observe red marks on L.B.’s neck or see obvious signs of injury, but did not

       examine L.B.’s chest or buttocks. When Deputy Hibschman spoke with

       Father, Father was calm. Father told Deputy Hibschman that L.B. was defiant

       and that Father was attempting to discipline L.B. Another responding officer

       spoke with C.L., who observed that C.L. was upset and anxious. C.L. was

       nervous with fast speech. The officer also observed L.B., who was crying and

       upset but who calmed down when he left with D.B.


[14]   Beyond conducting basic investigations, the police took no further action after

       responding to the three incidents involving Father. On September 30, 2015,

       DCS filed CHINS petitions as to all of the Children. Following a fact-finding

       hearing spanning several days, the juvenile court entered a single order

       adjudicating all of the Children as CHINS on March 22, 2016. The juvenile

       court entered a dispositional order on May 26, 2016.


[15]   This appeal ensued.



                                  Discussion and Decision


       Court of Appeals of Indiana | Memorandum Decision 32A01-1606-JC-1367 | January 18, 2017   Page 7 of 13
[16]   Mother and Father challenge the sufficiency of the evidence supporting the

       CHINS adjudications. For a child to be adjudicated a CHINS, “‘the State must

       prove by a preponderance of the evidence that a child is a CHINS as defined by

       the juvenile code.’” In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012) (quoting In

       re N.E., 919 N.E.2d 102, 105 (Ind. 2010)). In reviewing a CHINS adjudication,

       we neither reweigh the evidence nor judge the credibility of witnesses. Id. We

       consider only the evidence that supports the juvenile court’s decision and all

       reasonable inferences to be drawn therefrom. Id.


[17]   Here, the juvenile court entered findings and conclusions sua sponte, pursuant to

       Indiana Trial Rule 52(A). In reviewing findings and conclusions, we give due

       regard to the trial court’s ability to assess the credibility of witnesses. Ind. Trial

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

       clearly erroneous. Id. “As to the issues covered by the findings, we apply the

       two-tiered standard of whether the evidence supports the findings, and whether

       the findings support the judgment.” In re S.D., 2 N.E.3d 1283, 1287 (Ind.

       2014). We review any remaining issue under the general judgment standard,

       under which a judgment will be affirmed if it can be sustained on any legal

       theory supported by the evidence. 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. State v. Int'l Bus.

       Machines Corp., 51 N.E.3d 150, 158 (Ind. 2016).




       Court of Appeals of Indiana | Memorandum Decision 32A01-1606-JC-1367 | January 18, 2017   Page 8 of 13
[18]   In this case, DCS alleged that the Children were CHINS under Indiana Code

       section 31-34-1-1,1 which reads as follows:


               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.


[19]   Mother and Father first argue that DCS failed to prove that their actions or

       inactions seriously endangered the Children’s physical or mental condition.

       Mother and Father focus their argument on whether Father was justified in

       imposing discipline of the type he used during the incidents, observing that

       Indiana Code section 31-34-1-15 expressly provides that the CHINS statutes do

       not limit a parent’s right to use “reasonable corporal punishment when




       1
        DCS also petitioned under Indiana Code section 31-34-1-2. However, because each CHINS adjudication,
       at minimum, rested upon Indiana Code section 31-34-1-1, we need only discuss this section.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1606-JC-1367 | January 18, 2017   Page 9 of 13
       disciplining the child.” Mother and Father also point out that the juvenile

       court, in its findings and conclusions, used language such as “battering” (App.

       Vol. 2 at 193) and “violence” (App. Vol. 2 at 192) that appeared to improperly

       cast disapproval on their protected choice of parenting style. The juvenile

       court, however, did not ultimately adjudicate the Children CHINS because of

       any of Father’s physical interactions with them. Rather, as Mother and Father

       acknowledge, the adjudication was based on Father’s mental abuse of the

       Children.


[20]   Mother and Father also briefly assert that any so-called mental abuse related

       only to Father’s authoritarian parenting style, which should be protected. Here,

       there was testimony that an authoritarian approach with a child with ADHD

       can make things more difficult and frustrating for the child. Moreover, in the

       months preceding the incidents, L.B. appeared to be on edge and overly

       stressed whenever parenting time with Father neared. Following the incidents,

       L.B. was diagnosed with anxiety, and a primary source of his anxiety was the

       possibility of returning to live with Father. One witness characterized L.B.’s

       relationship with Father as a “vicious cycle” (Tr. at 733), and the juvenile court

       determined that Father “deliberately pushes [L.B.] into ‘ADHD meltdowns.’”

       (App. Vol. 2 at 195.) The juvenile court found the first incident involving L.B.

       illustrative, where Father began a lengthy discussion about parenting time and

       then continued the discussion after Father saw L.B. become increasingly

       emotional and approach a “meltdown.” Ultimately, irrespective of potentially




       Court of Appeals of Indiana | Memorandum Decision 32A01-1606-JC-1367 | January 18, 2017   Page 10 of 13
       protected parenting choices, there was sufficient evidence from which the

       juvenile court could conclude that father mentally abused L.B.


[21]   As to Mother’s Children, at one point before the reported incidents, Father

       locked Mother and some of Mother’s Children out of the house at night, and

       refused to allow them to come back inside. That night, those children slept at

       their biological father’s house. B.L., their biological father, told FCM Ash that

       he felt there was mental abuse going on in Mother’s and Father’s household.

       B.L. had witnessed Mother passed out drunk at the table while Father was

       “blowing a gasket” at Mother’s Children. (Tr. at 403.) G.L. and C.L. said they

       were afraid of Father, did not feel safe in the home, and lacked support from

       Mother. G.L. kept food in her room because she and her siblings were hungry

       but did not want to go downstairs because they did not want to get yelled at.

       Moreover, the guardian ad litem appointed to Mother’s Children had concerns

       for their emotional well-being. Thus, the evidence supports a determination

       that the Children were mentally abused.


[22]   Mother and Father also challenge the sufficiency of evidence that the Children

       needed care, treatment, or rehabilitation they were not receiving. Their

       argument, however, focuses only on whether the Children’s need for counseling

       arose from Father’s protected parenting choices. Having already concluded

       that there was sufficient evidence of mental abuse, Mother and Father have not

       directed us to reversible error with respect to this statutory requirement.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1606-JC-1367 | January 18, 2017   Page 11 of 13
[23]   Last, Mother and Father challenge whether DCS presented sufficient evidence

       that the Children were not likely to receive needed care, treatment, or

       rehabilitation without the coercive intervention of the court. Our supreme

       court has observed that this “element guards against unwarranted State

       interference in family life, reserving that intrusion for families where parents

       lack the ability to provide for their children, not merely where they encounter

       difficulty in meeting a child’s needs.” In re S.D., 2 N.E.3d at 1287 (internal

       quotations omitted). Moreover, it is well-established that “a CHINS

       adjudication may not be based solely on conditions that no longer exist,”

       rather, the juvenile court “should also consider the parents’ situation at the time

       the case is heard.” In re R.S., 987 N.E.2d 155, 159 (Ind. Ct. App. 2013)

       (internal citation omitted).


[24]   Here, L.B.’s therapist testified that, at this point in L.B.’s therapy, L.B. needed

       to cease contact with Father so that L.B. could successfully undergo the

       individual therapy he needed. Yet, in light of Father’s and D.B.’s high-conflict

       divorce, the juvenile court observed that D.B. would be unable to prevent

       Father from contacting L.B. without the court’s intervention. With respect to

       Mother’s Children, FCM Ash suggested that the court order family therapy,

       and the evidence supported the inference that Mother’s Children were in need

       of family therapy—therapy that would require Father’s participation. Although

       Father testified that he was undergoing some degree of therapy, the juvenile

       court had reason to doubt whether Father would willingly participate in the sort

       of therapy Mother’s Children needed. For example, in the context of Father’s


       Court of Appeals of Indiana | Memorandum Decision 32A01-1606-JC-1367 | January 18, 2017   Page 12 of 13
       dissolution proceeding, Father had assured the guardian ad litem that he would

       get counseling, but he did not. Father had also previously refused to participate

       in a child and family team meeting that FCM Ash requested. Accordingly,

       there is sufficient evidence from which the juvenile court could conclude that

       the court’s coercive intervention was necessary.



                                               Conclusion

[25]   There was sufficient evidence to support the CHINS adjudication.


[26]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1606-JC-1367 | January 18, 2017   Page 13 of 13
