MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                           Jan 13 2017, 9:32 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Steven Knecht                                            Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana

                                                         Robert J. Henke
                                                         Deputy Attorney General

                                                         James D. Boyer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of D.T.T.                                  January 13, 2017
A Child Alleged to be in Need of                         Court of Appeals Case No.
                                                         79A02-1605-JC-1147
Services
                                                         Appeal from the Tippecanoe
                                                         Superior Court
M.T.,                                                    The Honorable Faith A. Graham,
Appellant-Respondent,                                    Judge
                                                         The Honorable Tricia L.
        v.                                               Thompson, Magistrate
                                                         Trial Court Cause No.
Indiana Department of Child                              79D03-1601-JC-27
Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 79A02-1605-JC-1147 | January 13, 2017   Page 1 of 10
      Altice, Judge.


                                                        Case Summary


[1]   D.T.T. (Child) was adjudicated a Child in Need of Services (CHINS) by the

      Tippecanoe Superior Court. M.T. (Father) appeals, arguing that the

      Department of Child Services (DCS) did not present sufficient evidence to

      support the trial court’s determination.


[2]   We affirm.


                                            Facts & Procedural History


[3]   Child was born on May 5, 2007, to A.C. (Mother)1 and Father. In December

      2015, Mother and Father were separated and Father had custody of Child. On

      December 13, 2015, police responded to Father’s home because of an alleged

      domestic dispute between Father and Mother. Child was present in the home

      when the altercation occurred. Officer Jason Huber of the Tippecanoe County

      Sheriff’s Department was the second officer to arrive and spoke with Mother,

      who was at the end of the driveway. Officer Huber noted that Mother was

      “[e]xtremely upset” and crying and that she had redness, swelling, and

      abrasions around her neck. Transcript at 7. Mother told Officer Huber that

      Father had shoved her head and neck into a car door. While Mother was

      talking to Officer Huber, Child came around the side of the house and ran to




      1
          Mother does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1605-JC-1147 | January 13, 2017   Page 2 of 10
      Mother. Officer Huber described Child as being “panicked and fearful.” Id. at

      8. Father was ultimately arrested for domestic battery and Mother was

      transported to the hospital by ambulance given her complaint of severe head

      pain. On December 22, 2015, Mother sought and obtained a protective order in

      which both she and Child were identified as protected persons. Mother sought

      to have the protective order amended on January 19, 2016, in order for Father

      to have access to Child.


[4]   On January 22, 2016, DCS intervened upon learning that Mother and Child

      were living in Father’s home in violation of the protective order. Child was

      placed with his paternal uncle in Hamilton County. DCS filed a CHINS

      petition on January 25, 2016. In the CHINS petition, DCS alleged that

      “parents have a history of domestic violence” and noted that they were

      involved in a previous CHINS action that was closed in October 2015.

      Appellant’s Appendix Vol. II at 12. DCS further noted the December 2015

      domestic violence incident and subsequent protective order, which Father and

      Mother violated. At an initial hearing held on February 2, 2016, Mother and

      Father both denied the allegations in the CHINS petition.


[5]   A fact-finding hearing on the CHINS petition was held on March 4 and April 8,

      2016. At both hearings, Father requested that Child be returned to his custody,

      but the court denied both requests. On April 25, 2016, the trial court

      determined Child to be a CHINS. A CHINS dispositional order and parental

      participation decree were issued on April 28, 2016. Father filed his notice of

      appeal on May 19, 2016. Additional facts will be provided as necessary.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1605-JC-1147 | January 13, 2017   Page 3 of 10
                                          Discussion & Decision


[6]   Father argues that the court’s CHINS determination is not supported by the

      evidence. When determining whether sufficient evidence exists in support of a

      CHINS determination, we consider only the evidence most favorable to the

      judgment and the reasonable inferences therefrom. In re S.D., 2 N.E.3d 1283,

      1287 (Ind. 2014). This court will not reweigh the evidence or reassess the

      credibility of the witnesses. Id. at 1286. When a juvenile court’s order contains

      specific findings of fact and conclusions thereon, we engage in a two-tiered

      review. In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014) (citing In re T.S., 906

      N.E.2d 801, 804 (Ind. 2009)). First, we determine whether the evidence

      supports the findings, and then, we determine whether the findings support the

      judgment. Id. Findings are clearly erroneous when there are no facts or

      inferences drawn therefrom that support them. Id. A judgment is clearly

      erroneous if the findings do not support the juvenile court’s conclusions or the

      conclusions do not support the resulting judgment. Id.


[7]   CHINS proceedings are civil actions, and therefore, “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.E., 919 N.E.2d 102, 105 (Ind. 2010). On review, we

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

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

      reasonable inferences drawn therefrom. Id. We reverse only upon a showing

      that the decision of the juvenile court was clearly erroneous. Id.



      Court of Appeals of Indiana | Memorandum Decision 79A02-1605-JC-1147 | January 13, 2017   Page 4 of 10
[8]   To meet its burden of establishing CHINS status, DCS must prove that the

      child is under 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.


      Ind. Code § 31-34-1-1. Although the acts or omissions of one or both parents

      can cause a condition that creates the need for court intervention, the CHINS

      designation focuses on the condition of the child rather than on an act or

      omission of the parents. In re N.E., 919 N.E.2d at 105. “[T]he purpose of a

      CHINS adjudication is to protect children, not punish parents.” N.L. v. Ind.

      Dep’t of Child Servs, 919 N.E.2d 102, 106 (Ind. 2010).


[9]   In its order finding Child to be a CHINS, the court made the following findings:

              2. [Child] was previously found to be a Child in Need of Services
              (CHINS) on January 8, 2015.


              3. In that case, the Court found that parents have an extensive
              history of domestic violence with both parents becoming violent
              at times while [Child] was present. [Child] was able to recount
      Court of Appeals of Indiana | Memorandum Decision 79A02-1605-JC-1147 | January 13, 2017   Page 5 of 10
        details of incidents to the DCS investigator which Mother
        admitted were true.


        4. Prior to that CHINS case, parents had separated but
        continued to have tumultuous interactions with each other.
        Despite the history of violence between them, Mother discussed
        reuniting with Father during the investigation.


        5. The Court also found that Mother had been testing positive
        for marijuana and had issues with abusing her prescription pain
        medications.


                                                ***


        7. The first CHINS case ended with [Child] in Father’s custody
        and Mother having supervised parenting time.


        8. On December 13, 2015, officers were called to Father’s
        residence in Tippecanoe County. Mother was present and
        Lieutenant Jason Huber of the Tippecanoe County Sheriff’s
        Department interviewed her. Mother was extremely emotional
        and crying. Mother complained of severe head pain and Lt.
        Huber observed injury to Mother’s neck. Mother requested an
        ambulance. Mother told Lt. Huber that Father strangled her and
        shut her neck in the car door.


        9. Lt. Huber observed [Child] run from the side of the house to
        Mother. [Child] was visibly upset.


        10. Father was arrested and Mother was transported to the
        hospital. [Child] stayed with a family friend.




Court of Appeals of Indiana | Memorandum Decision 79A02-1605-JC-1147 | January 13, 2017   Page 6 of 10
        11. DCS Investigator Kuhn interviewed Mother several days
        later and Mother said that Father picked her up and threw her
        out and slammed her head in the car door.


        12. Mother obtained a protective order against Father on
        December 21, 2015. Mother’s petition for protective order
        indicates that Father attempted to strangle her and smashed her
        head in the car door. Mother stated that [Child] witnessed
        Father throw Mother out the door. Mother claimed that Father
        has battered her since [Child] was born.


        13. [Child] was removed from parents’ care on January 22, 2016
        when DCS was informed that Mother and [Child] were living
        with Father.


        14. Mother later changed her story about what happened to DCS
        investigator Kuhn. Mother also requested that the protective
        order be dismissed. Mother testified that she wanted the
        protective order dismissed because Father was no threat to her.


        15. Mother had been obtaining prescription pills from her doctor
        since the end of the first CHINS case. Mother admitted she takes
        more pills than prescribed then gets pills from someone else after
        she runs out of her prescription. Mother admitted that she has
        been struggling with her pain pill addiction since she was thirteen
        years old.


        16. On the second day of the fact finding hearing, Mother
        appeared in custody. Mother had been arrested in Tippecanoe
        County for a misdemeanor offense and was also being held for a
        White County case for Driving While Suspended. Mother is on
        probation for battery of Father’s female friend.


        17. [Child] is less than eighteen (18) years of age.

Court of Appeals of Indiana | Memorandum Decision 79A02-1605-JC-1147 | January 13, 2017   Page 7 of 10
               18. [Child’s] physical or mental condition is seriously impaired
               or seriously endangered as a result of the inability, refusal or
               neglect of his parents to supply him with necessary food,
               clothing, shelter, medical care, education, or supervision. [Child]
               has been repeatedly exposed to domestic violence and a pattern
               of volatility in parents’ relationship. Additionally, Mother
               continues to struggle with substance abuse addiction.


               19. [Child] needs care or treatment that he is not receiving.


               20. Parents are unlikely to provide the necessary care and
               treatment for [Child] without the coercive intervention of the
               court. Neither parent seems to understand the significant
               negative impact that their ongoing volatile relationship has on
               [Child].


               21. Parents received services in the first CHINS case to address
               domestic violence and substance abuse issues. Those same issues
               are still present in this family and services continue to be needed.
               Parents have not sought services on their own.


[10]   Appellant’s Appendix Vol. II at 63-64. Father does not challenge the court’s

       factual findings. Rather, Father argues that those findings do not support the

       court’s conclusion that Child’s condition was seriously impaired or endangered

       or that Child was deprived of any of the necessities required by I.C. § 31-34-1-1.

       Specifically, Father asserts that exposure to domestic violence is not sufficient

       to support a CHINS determination.


[11]   In support of his argument, Father disagrees with prior holdings that exposure

       to domestic violence can support a CHINS finding. See N.E., 919 N.E.2d at

       106; K.B. v. Ind. Dep’t of Child Servs., 24 N.E.3d 997, 1003 (Ind. Ct. App. 2015).

       Court of Appeals of Indiana | Memorandum Decision 79A02-1605-JC-1147 | January 13, 2017   Page 8 of 10
       Father asserts that the CHINS statute should be strictly construed against the

       State and notes that the statute does not set forth domestic violence as a ground

       upon which to base a CHINS determination. However, as noted by the court

       in K.B., “the CHINS statute does not require the juvenile court and DCS to

       wait until a child is physically or emotionally harmed to intervene; rather, a

       child may be determined to be a CHINS if his or her physical or mental

       condition is endangered.” 24 N.E.3d at 1003 (citing In re R.P., 949 N.E.2d 395,

       401 (Ind. Ct. App. 2011)).


[12]   Here, as in K.B., Child was of an age at which he was old enough to

       comprehend the violence between Mother and Father. An officer who

       responded to the December 2015 domestic disturbance call noted that Child

       came running from the side of the house to Mother and that Child appeared

       “panicked and fearful.” Transcript at 8. Child reported to a DCS worker that

       the December 2015 incident was not the first time he had witnessed a physical

       altercation between Mother and Father and that it “scares” him when Mother

       and Father fight. Appellant’s Appendix Vol. II at 16. Moreover, it was reported

       to DCS that Child was physically injured when he was “scratched on the neck”

       during the December 2015 incident. Id. at 14.


[13]   Further, DCS had closed a prior CHINS proceeding, which was based in part

       on domestic violence in Child’s presence, only two months prior to the

       December 2015 incidence between Mother and Father. Although Mother

       initially sought a protective order in the weeks leading up to this case, she

       ignored the protective order within a matter of weeks when she began living

       Court of Appeals of Indiana | Memorandum Decision 79A02-1605-JC-1147 | January 13, 2017   Page 9 of 10
       with Father again. Our review of the record leads us to conclude that the

       evidence supports the court’s findings, and the findings support the court’s

       CHINS determination.


[14]   Judgment affirmed.


[15]   Riley, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1605-JC-1147 | January 13, 2017   Page 10 of 10
