MEMORANDUM DECISION                                                FILED
                                                               Jun 03 2016, 6:18 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                   CLERK
this Memorandum Decision shall not be                          Indiana Supreme Court
                                                                  Court of Appeals
regarded as precedent or cited before any                           and Tax Court

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
Dylan A. Vigh                                             Gregory F. Zoeller
Law Offices of Dylan A. Vigh, LLC                         Attorney General of Indiana
Indianapolis, Indiana
                                                          Robert J. Henke
                                                          James D. Boyer
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of J.M. and P.M.                            June 3, 2016
(Minor Children), Children in                             Court of Appeals Case No.
Need of Services,                                         49A02-1510-JC-1763
                                                          Appeal from the Marion Superior
and                                                       Court
                                                          The Honorable Marilyn A.
V.M. (Father),                                            Moores, Judge
Appellant-Respondent,                                     Trial Court Cause Nos.
                                                          49D09-1505-JC-1486, -1487
        v.

The Indiana Department of
Child Services,
Appellee-Petitioner



Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JC-1763 | June 3, 2016     Page 1 of 9
      Crone, Judge.



                                            Case Summary

[1]   V.M. (“Father”) appeals a trial court adjudication designating his children J.M.

      and P.M. (collectively “the Children”) as children in need of services

      (“CHINS”). Finding the evidence sufficient to support the CHINS designation,

      we affirm.


                               Facts and Procedural History
[2]   In 2012, Father and A.M. (“Mother”) dissolved their marriage. Pursuant to the

      dissolution decree, they had joint custody of their daughter J.M. (born April 21,

      2006) and son P.M. (born March 21, 2008), with the Children together

      alternating between the parents on a weekly basis.


[3]   In April 2015, the Department of Child Services (“DCS”) investigated a report

      that Father had inappropriately touched the Children and that there was a

      history of domestic violence in the home. Seven-year-old P.M. told a DCS case

      manager that Father had touched him “on the inside of his butt,” and it made

      him feel “uncomfortable and sad.” Appellant’s App. at 37-39. A few days

      later, the Children underwent forensic interviews, during which P.M. disclosed

      that Father had touched him inside his buttocks while he and J.M. were lying

      on a bed watching a movie. J.M. reported that she did not see Father touch

      P.M.’s buttocks but that P.M. had told her about it. P.M. also reported that

      Father had touched his penis while giving him an oil massage.
      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JC-1763 | June 3, 2016   Page 2 of 9
[4]   In May 2015, DCS filed a CHINS petition, alleging that Father had touched

      P.M. inside his buttocks and had touched his penis during an oil massage; that

      Father had bitten J.M. on her cheek and kissed her lips; that Father’s new wife

      had given J.M. an oil massage while J.M. was naked; and that Father had a

      history of abuse and control over Mother. The trial court reviewed the petition,

      removed the Children from each parent’s care, and granted temporary wardship

      to DCS.


[5]   At a child hearsay hearing in July 2015, Mother admitted to the CHINS

      allegations based on the Children’s exposure to Father’s acts of domestic

      violence, the reports of his inappropriate touching, and her inability to protect

      the Children due to Father’s unsupervised parenting time. She agreed to

      participate in home-based services, therapy, and a domestic violence

      assessment. Father requested that the trial court admit the forensic interviews

      of the Children and render its decision based on that evidence in lieu of a

      contested factfinding hearing. The trial court admitted the forensic interviews

      and indicated that it would render its decision based on those interviews and

      Mother’s admissions. Father did not request the admission of additional

      evidence.


[6]   In July 2015, the trial court issued an order designating the Children as CHINS.

      The court held a hearing and issued a dispositional order placing the Children

      with Mother, giving Father supervised parenting time, and ordering both

      parents to participate in home-based therapy.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JC-1763 | June 3, 2016   Page 3 of 9
[7]   On August 26, 2015, Father filed a motion to correct error as to the trial court’s

      CHINS designation, asserting that the trial court erred in ruling primarily on

      the forensic interviews and in failing to consider additional information that

      was not part of the hearing record. He attached to his motion an opinion letter

      from a clinical psychologist and copies of DCS reports not previously in the

      hearing records. Father’s motion to correct error was deemed denied pursuant

      to Indiana Trial Rule 53.3(A). He now appeals the CHINS designation. 1

      Additional facts will be provided as necessary.


                                      Discussion and Decision
[8]   Father challenges the sufficiency of evidence to support the CHINS

      determination. When reviewing the sufficiency of evidence, we give due regard

      to the trial court’s ability to assess the credibility of witnesses. In re Des.B., 2

      N.E.3d 828, 836 (Ind. Ct. App. 2014). We neither reweigh evidence nor judge

      witness credibility; rather, we consider only the evidence and reasonable

      inferences most favorable to the trial court’s decision. In re K.D., 962 N.E.2d

      1249, 1253 (Ind. 2012). Where, as here, the trial court sua sponte issues

      findings of fact and conclusions thereon, we apply a clearly erroneous standard

      for matters covered by the trial court’s findings. In re S.D., 2 N.E.3d 1283, 1287

      (Ind. 2014). In so doing, we apply a two-tiered standard of review, considering

      first whether the evidence supports the findings and then whether the findings




      1
          Mother admitted to the CHINS designation and is not participating in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JC-1763 | June 3, 2016     Page 4 of 9
       support the judgment. Id. As for matters not covered in the findings, we apply

       a general judgment standard, pursuant to which a judgment “will be affirmed if

       it can be sustained on any legal theory supported by the evidence.” Id.


[9]    In a CHINS proceeding, the State bears the burden of proving by a

       preponderance of the evidence that a child meets the statutory definition of a

       CHINS. In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). To meet its burden of

       establishing CHINS status, the State must prove that the child is under age

       eighteen,


               (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.


[10]   A CHINS designation focuses on the condition of the child rather than on an

       act or omission by the parent. N.E., 919 N.E.2d at 105. Whereas the acts or

       omissions of one parent can cause a condition that creates the need for court

       intervention,

               [a] CHINS adjudication can also come about through no
               wrongdoing on the part of either parent, e.g., where a child

       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JC-1763 | June 3, 2016   Page 5 of 9
               substantially endangers the child’s own health or the health of
               another individual; or when a child is adjudicated a CHINS
               because the parents lack the financial ability to meet the child’s
               extraordinary medical needs. While we acknowledge a certain
               implication of parental fault in many CHINS adjudications, the
               truth of the matter is that a CHINS adjudication is simply that—
               a determination that a child is in need of services.


       Id. (citations omitted). A trial court need not wait until a tragedy occurs to

       intervene. In re A.H., 913 N.E.2d 303, 311 (Ind. Ct. App. 2009).


[11]   Here, Father has not specifically challenged any of the trial court’s findings but

       instead makes general denials of inappropriate conduct and general assertions

       concerning the strength of the evidence and inferences drawn from the forensic

       interviews. The trial court’s findings include the following: 2


               4. Father maintained his denial of the allegations but stipulated
               to the authenticity and admissibility of the video of his children’s
               forensic interviews regarding some of the allegations.


               5. And the Court having reviewed the video and being duly
               advised in the premises thereof, now finds:


               6. Father inappropriately touched the inside of P.M.’s buttocks
               and it felt “bad” to the child.




       2
         To the extent that the findings include proper names for Mother, Father, J.M., and P.M., we have removed
       those designations.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JC-1763 | June 3, 2016            Page 6 of 9
               7. Father touched his son P.M. in an inappropriate and sexual
               manner while giving him an oil massage.


               8. Father’s wife … gave J.M. an oil massage while [J.M.] was
               naked.


               9. P.M. did not seem coached in any way during the video. On
               the contrary, the child provided details that would have been very
               difficult for a child his age to remember, if he were lying and
               made time errors that are also very common among children his
               age when they are telling the truth.


               10. P.M. came across as very natural, forthright, embarrassed,
               troubled and … confused by his father’s and his wife’s actions.


               11. J.M., a teenager made no disclosures during her forensic
               interview, but apparently made disclosures once she was reunited
               with her mother.


               ….


               13. Accordingly, the Court finds that the children’s physical and
               mental conditions are seriously impaired and seriously
               endangered as a result of the Father’s commission of sexual
               abuse against at least P.M. and that Mother is unable to protect
               the children while they are in Father’s care because he has
               unsupervised parenting time under the terms of their divorce.


       Appellant’s App. at 5.


[12]   Interestingly, after stipulating to the trial court basing its ruling on the forensic

       interviews in lieu of a factfinding hearing, Father now argues that the trial court

       accorded too much weight to those interviews. As support, he relies on
       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JC-1763 | June 3, 2016   Page 7 of 9
       documents attached to his motion to correct error. These documents – an

       opinion letter from a child psychologist and several DCS reports – were not part

       of the record when the trial court ruled on the CHINS petition. “[Indiana Trial]

       Rule 59(H)(1) requires a motion to correct error that is based on evidence

       outside the record to be ‘supported by affidavits showing the truth of the

       grounds set out in the motion.’” Stoffel v. JPMorgan Chase Bank, N.A., 3 N.E.3d

       548, 554 (Ind. Ct. App. 2014). Father could have submitted these documents

       before or during the factfinding hearing, but instead, he stipulated to a

       procedure that dispensed with the factfinding hearing altogether. See Mid-States

       Aircraft Engines, Inc. v. Mize Co., 467 N.E.2d 1242, 1245 (Ind. Ct. App. 1984)

       (“T.R. 59(H)(1) affidavits may not be used to present evidence the party

       neglected to offer during the proceeding.”). Even so, the documents that Father

       attached to his motion to correct error do not comply with Trial Rule 59(H)(1)

       because they are not themselves affidavits, nor were they accompanied by

       affidavits. 3 As such, they are not properly considerable under the Rule.


[13]   Simply put, Father’s arguments amount to an invitation to reweigh evidence

       and assess witness credibility, which we may not do. Having agreed to the

       abbreviated procedure and then disagreed with the trial court’s decision, Father




       3
          One of the documents is an opinion letter from child psychologist Dr. Steven J. Couvillion. Although it is
       titled, “Affidavit,” it is clearly an expert opinion provided for purposes of litigation. Appellant’s App. at 50-
       54. It does not contain a signed verification, under penalty of perjury, of the truth of matters asserted therein
       and therefore does not satisfy the requirements of an affidavit. Ind. Trial Rule 11(B). Similarly, the attached
       DCS reports of other unsubstantiated neglect and abuse allegations against Father are not accompanied by
       affidavits and thus do not comply with Trial Rule 59(H)(1).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JC-1763 | June 3, 2016                   Page 8 of 9
       attempted to bolster his position by attaching unverified documents to his

       motion to correct error. The unchallenged findings support the CHINS

       designation. The Children were seriously impaired or endangered by Father’s

       conduct 4 and Mother’s inability to supervise them while they were with Father.

       Being subject to the dissolution court’s joint custody order, Mother could not

       legally deny Father his parenting time. As such, absent the coercive

       intervention of the trial court, it is unlikely that the Children would have

       received much-needed care and treatment. Based on the foregoing, we

       conclude that the trial court did not clearly err in designating the Children

       CHINS. Accordingly, we affirm.


[14]   Affirmed.


       Najam, J., and Robb, J., concur.




       4
         Father cites as support for his insufficiency claim the State’s decision not to bring criminal charges against
       him. We remind him that a determination of criminal liability requires a more rigorous standard of proof
       than a CHINS designation.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-JC-1763 | June 3, 2016                   Page 9 of 9
