MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                               Nov 04 2016, 9:45 am
this Memorandum Decision shall not be
                                                                          CLERK
regarded as precedent or cited before any                             Indiana Supreme Court
                                                                         Court of Appeals
court except for the purpose of establishing                               and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michelle Laux                                            Gregory F. Zoeller
St. Joseph County                                        Attorney General of Indiana
Public Defender’s Office
                                                         Robert J. Henke
South Bend, Indiana                                      Abigail R. Recker
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of:                                        November 4, 2016
N.S. (Minor Child), Child in                             Court of Appeals Case No.
Need of Services,                                        71A03-1603-JC-606
     and                                                 Appeal from the St. Joseph Probate
                                                         Court
C.S. (Father),
                                                         The Honorable James N. Fox,
Appellant-Respondent,                                    Judge

        v.                                               Trial Court Cause No.
                                                         71J01-1506-JC-339

The Indiana Department of
Child Services,
Appellee-Petitioner




Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A03-1603-JC-606 | November 4, 2016        Page 1 of 11
[1]   C.S. (Father) appeals the trial court’s order adjudicating Father’s child, N.S.

      (Child), to be a Child in Need of Services (CHINS). Father argues that there is

      insufficient evidence supporting the CHINS adjudication. Finding the evidence

      sufficient, we affirm.


                                                    Facts
[2]   Child was born to Father and J.B. (Mother) on November 20, 2012. On May

      19, 2015, the Department of Child Services (DCS) received a report regarding

      domestic violence between Father and Mother. On June 2, 2015, Mother met

      with a DCS family case manager (FCM) and made the following statements to

      the FCM: (1) Father has been diagnosed with schizophrenia and bipolar

      disorder and was not taking his medication; (2) during the altercation in

      question, her brother and Father got into a fight and Father tried to push

      Mother and her brother out of the home; (3) Child was present during that

      altercation; and (4) the previous Friday, she and Father had been in an

      altercation.


[3]   On June 12, 2015, the FCM met with Mother and Father. Father admitted that

      he was having problems with his medication, did not get along with his

      therapist, and was suffering from mental health issues as a result. The parents

      agreed to participate in a program of Informal Adjustment (IA). But when the

      parents returned to DCS on a later date to sign the IA, they refused to sign or

      participate in services.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1603-JC-606 | November 4, 2016   Page 2 of 11
[4]   On July 8, 2015, DCS filed a petition alleging Child to be a CHINS, based on

      multiple reports of domestic violence between Mother and Father while Child

      was present as well as Father’s ongoing mental health issues. On July 9, 2015,

      Child was removed from her parents’ care and custody and placed in relative

      care with her maternal grandmother. The parents denied the allegations in the

      CHINS petition and the trial court set a CHINS factfinding hearing for January

      22, 2016.1


[5]   At the factfinding hearing, the following evidence was introduced:


           The South Bend Police Department has been called to the parents’ home
            “multiple times” for incidents of domestic violence. Tr. p. 18. Child was
            present for all of these incidents. Id. at 24.
           On April 9, 2014, police were called to the home. Mother told the
            responding officer that when she tried to leave the house, Father blocked
            the door. He then “threw her to the ground,” held a lamp above her
            head and threatened to beat her with it, attempted to hit her with a
            broom and threw her to the ground again, put his arms around her neck
            and held her down, and Child was “in the middle of the living[]room
            screaming and crying.” Id. at 40. Father was arrested as a result of the
            incident.
           On May 17, 2015, police were again called to the home. Responding
            officers witnessed Father punching Mother’s brother in the face. Mother
            told an officer that Father had threatened to snap her neck and to kill her,
            that he had thrown a plate of food and the dish at her, and that the
            previous Friday, another physical altercation resulted in bruising to


      1
       Father points out that the CHINS hearing was set significantly past the sixty-day deadline set forth in
      Indiana Code section 31-34-11-1(a), but stops short of arguing that the CHINS finding should be reversed
      because of this failure to meet the statutory deadline. Father has not provided us with the transcript of the
      July 9, 2015, hearing, so we have no way of knowing whether he consented or objected to this hearing date.
      Additionally, there is no evidence that he filed a motion to dismiss the case pursuant to Indiana Code section
      31-34-11-1(d). Consequently, we decline to address this issue.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1603-JC-606 | November 4, 2016            Page 3 of 11
           Mother. Mother was afraid she would not be able to leave the home
           safely, which is why she asked her brother to come over. Two officers
           observed bruising on Mother’s wrists.
          Maternal grandmother testified that during the spring of 2015, Mother
           called maternal grandmother, saying that Father “had a gun on her” and
           was holding Child in his arms. Id. at 78-79. Maternal grandmother has
           concerns about Mother and Child’s safety.
          On April 22, 2014, Father pleaded guilty to class A misdemeanor
           intimidation.
          DCS employees testified that they were concerned for Child’s safety with
           the ongoing domestic violence in the home. Because the parents refused
           to engage in the IA, the FCM did not believe they would participate in
           services without the coercive intervention of the court.
          Although the parents had been involved with DCS for over six months,
           they had yet to participate in the services DCS had referred on their
           behalf. Father was unsuccessfully discharged from services at the
           YWCA because of his behavior and failed to participate in a batterer’s
           intervention program.

On February 2, 2016, the trial court found Child to be a CHINS. On March 2,

2016, a dispositional hearing took place, and on March 3, 2016, the trial court

entered a dispositional decree. Among other things, Father is ordered to

complete a psychological evaluation and comply with all recommendations and

complete a batterer’s intervention program. Father now appeals.2




2
    Mother is not participating in this appeal.


Court of Appeals of Indiana | Memorandum Decision 71A03-1603-JC-606 | November 4, 2016   Page 4 of 11
                                   Discussion and Decision
                                     I. Standard of Review
[6]   Father argues that there is insufficient evidence supporting the CHINS

      adjudication. Our Supreme Court has explained the nature of a CHINS

      proceeding and appellate review of a CHINS finding as follows:

              A CHINS proceeding is a civil action; thus, “the State must
              prove by a preponderance of the evidence that a child is a
              CHINS as defined by the juvenile code.” In re N.R., 919 N.E.2d
              102, 105 (Ind. 2010). We neither reweigh the evidence nor judge
              the credibility of the witnesses. Egly v. Blackford County Dep’t of
              Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We consider
              only the evidence that supports the trial court’s decision and
              reasonable inferences drawn therefrom. Id. We reverse only
              upon a showing that the decision of the trial court was clearly
              erroneous. Id.


              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. In re N.E., 919
              N.E.2d at 105.


      In re K.D., 962 N.E.2d 1249, 1253–54 (Ind. 2012) (footnote omitted).


[7]   Here, DCS alleged that the child was CHINS pursuant to Indiana Code section

      31-34-1-1, which provides as follows:

      Court of Appeals of Indiana | Memorandum Decision 71A03-1603-JC-606 | November 4, 2016   Page 5 of 11
              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.


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

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

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

      needs are unlikely to be met without State coercion.” In re S.D., 2 N.E.3d 1283,

      1287 (Ind. 2014).


                                            II. Sufficiency
                                              A. Findings
[8]   In attacking the evidence supporting the CHINS finding, Father first focuses on

      some of the findings made by the trial court in the CHINS order. He contends

      that these specific findings are not supported by the evidence.


[9]   First, he directs our attention to the finding “[t]hat on multiple occasions

      between June of 2014 and May of 2015 parents became involved in disputes

      Court of Appeals of Indiana | Memorandum Decision 71A03-1603-JC-606 | November 4, 2016   Page 6 of 11
       that required intervention of law enforcement[.]” Appellant’s App. p. 12.

       Father insists that there was evidence of only two altercations, not “multiple”

       altercations. Initially, we note that “multiple” means “more than one,”

       meaning that two incidents would qualify as multiple incidents. Merriam-

       Webster Dictionary, http://www.merriam-webster.com/dictionary/multiple.

       And in any event, there was evidence presented of more than two altercations:


            Mother testified that police have been called to their home on “several”
             occasions. Tr. p. 62.
            Law enforcement has been called to parents’ home “multiple times” for
             domestic violence incidents. Id. at 18.
            Physical altercations occurred on April 9, 2014, and May 17, 2015, that
             required intervention of law enforcement.

       This evidence readily supports the trial court’s finding.


[10]   Second, Father directs our attention to the finding “[t]hat on one occasion the

       parents became engaged in an argument that became a physical altercation

       where father knocked plates and food out of mother’s hands[.]” Appellant’s

       App. p. 12. A police officer testified that Mother reported that Father had

       thrown a plate of food and the dish at Mother. Tr. p. 45. When asked whether

       Father had “knock[ed] a plate of food out of [her] hand in the hallway,”

       Mother responded “[y]eah, he flipped a plate” and the “plate of food went

       flying[.]” Id. at 65. This evidence supports the trial court’s finding.


[11]   Third, Father challenges the trial court’s finding “[t]hat on another occasion the

       parents again became engaged in an argument that became a physical

       altercation[.]” Appellant’s App. p. 12. The evidence in the record reveals that
       Court of Appeals of Indiana | Memorandum Decision 71A03-1603-JC-606 | November 4, 2016   Page 7 of 11
       on April 9, 2014, Father threw Mother to the ground, held a lamp above her

       head and threatened to beat her with it, attempted to hit her with a broom and

       threw her to the ground again, put his arms around her neck and held her

       down, and tried to stop Mother when she tried to get away. Tr. p. 39-40.

       Mother testified that this incident did, in fact, happen. Id. at 56. This evidence

       readily supports the trial court’s finding.


[12]   Fourth, Father highlights the finding that “Mother claimed that father

       threatened her and that a gun was present[.]” Appellant’s App. p. 12. Maternal

       grandmother testified that sometime during the spring of 2015, Mother called

       her and said that Father “had a gun on her” and that Child was in Father’s

       arms. Tr. p. 78. That Mother, herself, did not testify regarding this altercation

       does not undercut this finding. We find that the evidence supports the finding.


[13]   Finally, Father challenges the trial court’s finding that “[c]onfrontations have

       occurred in the presence of the child[.]” Appellant’s App. p. 12. We find

       ample evidence in the record supporting this finding:


            Mother told a police officer that Child was “in the middle of the
             living[]room screaming and crying” during the April 9, 2014, incident.
             Tr. p. 40-41. She testified at trial that the incident was “partial[ly]”
             observed by Child. Id. at 57.
            The same officer testified that Father walked out of the house with Child
             directly following the April 9, 2014, incident.
            Maternal Grandmother testified that during the incident in spring of 2015
             when Father pointed a gun at Mother, Father was holding Child in his
             arms.
            Mother testified that during the May 17, 2015, incident when Father
             knocked the plate out of her hands, Child was present in the home.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1603-JC-606 | November 4, 2016   Page 8 of 11
       In sum, we find that all of the complained-of findings were supported by the

       evidence in the record and decline to reverse on this basis.


                                         B. CHINS Finding
       Father contends that the trial court’s findings do not support its conclusion that

       Child is a CHINS. As noted above, our Supreme Court has summarized the

       statutory requirements for finding a child to be a CHINS, noting that these are

       the three basic elements that must be proved: “that the parent’s actions or

       inactions have seriously endangered the child, that the child’s needs are unmet,

       and (perhaps most critically) that those needs are unlikely to be met without

       State coercion.” S.D., 2 N.E.3d at 1287.


[14]   It is well established that a child’s exposure to domestic violence can support a

       CHINS finding. E.g., In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). DCS and the

       trial court need not wait until a child is physically or emotionally harmed to

       intervene; instead, a child may be found to be a CHINS if his or her physical or

       mental condition is endangered. E.g., In re R.P., 949 N.E.2d 395 (Ind. Ct. App.

       2011); see also In re E.M., 4 N.E.3d 636, 644 (Ind. 2014) (observing that exposure

       to violence during the first three years of life can cause detrimental effects to the

       brain’s neural pathways and that “[i]nfants as young as fifteen months exhibit

       behavioral disturbances from spousal violence”).


[15]   Father focuses primarily on his argument that there is no evidence indicating

       that Child actually witnessed the domestic violence. Initially, we note that

       there is not necessarily a requirement that a child be a witness to ongoing

       Court of Appeals of Indiana | Memorandum Decision 71A03-1603-JC-606 | November 4, 2016   Page 9 of 11
       domestic violence in the home to support a CHINS finding. And in any event,

       there is ample evidence in the record here establishing that Child did, indeed,

       witness domestic violence on more than one occasion. On April 9, 2014, when

       Father repeatedly threw Mother to the ground, threatened to beat her with a

       lamp and attempted to beat her with a broom, and put his arms around her

       neck, Child was in the middle of the room, “screaming and crying.” Tr. p. 40.

       In the spring of 2015, Mother called her mother and said that Father was

       pointing a gun at her and had Child in his arms. In May 2015, Father

       threatened to snap Mother’s neck and kill her and knocked a plate of food out

       of her hands. She did not feel she could safely leave the home and had to call

       her brother to come and help. Mother admitted that Child was present during

       this period of time. Id. at 65-66.


[16]   In sum, the record reveals multiple instances of domestic violence with Child

       present. Additionally, Father had serious mental illnesses for which he was not

       receiving appropriate treatment, causing frequent agitation and unpredictability.

       The parents refused to participate in services with an IA.3 Maternal

       Grandmother and DCS employees were concerned about Child’s safety and

       well-being when in the care and custody of her parents. We find that this

       evidence supports the trial court’s conclusion that Child is a CHINS. Father’s




       3
         Father does not challenge the trial court’s conclusion that the coercive intervention of the court was
       necessary, but we note that the parents’ refusal to participate with services through an IA readily supports
       that conclusion.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1603-JC-606 | November 4, 2016            Page 10 of 11
       arguments to the contrary amount to a request that we reweigh the evidence

       and assess witness credibility, and we decline to do so.


[17]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1603-JC-606 | November 4, 2016   Page 11 of 11
