MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                  Jul 30 2020, 9:14 am
court except for the purpose of establishing
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the defense of res judicata, collateral                                    Indiana Supreme Court
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estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jennifer A. Joas                                          Curtis T. Hill, Jr.
Joas Law, LLC                                             Attorney General of Indiana
Madison, Indiana                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of: Pa.J. and Pi.J.                         July 30, 2020
(Children in Need of Services),                           Court of Appeals Case No.
                                                          20A-JC-280
M.J. (Mother),
                                                          Appeal from the Dearborn Circuit
Appellant,                                                Court
        v.                                                The Honorable James D.
                                                          Humphrey, Judge
Indiana Department of Child                               Trial Court Cause Nos.
Services,                                                 15C01-1910-JC-40
                                                          15C01-1910-JC-41
Appellee.



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-JC-280 | July 30, 2020                       Page 1 of 10
[1]   M.J. (“Mother”) appeals the trial court’s order determining that Pa.J. and Pi.J.

      are children in need of services (“CHINS”). We affirm.


                                       Facts and Procedural History

[2]   Pa.J., who was born in December 2003, and Pi.J., who was born in December

      2013, are the children of Mother and K.J. (“Father”). On October 1, 2019, the

      Indiana Department of Child Services (“DCS”) filed a petition alleging the

      children were CHINS. The petition alleged that, on or about August 20, 2019,

      around 12:30 a.m., Father and Mother heard the children moving about in their

      bedroom, Father went to the children’s room and yelled at them to shut up,

      immediately after checking on the children Father saw a bottle in Mother’s

      hand, Father responded by punching Mother in the face, and Mother’s injury

      was so severe that she was required to undergo surgery. It alleged that, “upon

      hearing the beating, the [children] exited the bedroom and witnessed the

      violence because they were woken up.” Appellant’s Appendix Volume II at 33.

      It also alleged that “this is not the first instance of domestic violence.” Id.


[3]   On December 5, 2019, the trial court held a hearing. The parties entered a

      “Deny and Submit Agreement” which provided Mother and Father denied the

      allegations in the CHINS petition and the court would consider evidence

      outlined by the parties in determining whether the allegations were true. Id. at

      39. The parties stipulated to the court considering: the intake officer’s

      preliminary inquiry and investigation (the “preliminary report”), the CHINS

      petition, Mother’s mental health assessment and counseling documents, the


      Court of Appeals of Indiana | Memorandum Decision 20A-JC-280 | July 30, 2020   Page 2 of 10
      assessment completed for the children at the Community Mental Health

      Center, the clinical summaries for the children, Mother’s medical records,

      records and information from Safe Passage, and any other documentation

      provided by Mother. The court advised Mother and Father of the allegations,

      their right to a factfinding hearing and to present witnesses and evidence, their

      right to counsel, and the court’s dispositional alternatives if the children were

      determined to be CHINS. On December 20, 2019, the parties submitted

      evidence to the court in accordance with the Deny and Submit Agreement

      which included proof of insurance carried by Mother, medical enrollment

      forms, a domestic violence presentation from Safe Passages for Mother, a

      personal safety plan signed by Mother, a diagnostic assessment for Mother, and

      treatment plan documents related to Father.


[4]   On January 2, 2020, the court held a hearing at which Mother’s counsel,

      Father, and Father’s counsel were present. DCS caseworker Carol Mulley

      indicated Mother was in Florida with the children. The court stated that it had

      made findings based upon the evidence which had been submitted and found

      the children were CHINS.


[5]   On January 8, 2020, the court issued an Order on Deny and Submit Agreement

      finding the children to be CHINS and providing:

              1. There was a domestic violence incident between [Mother] and
              [Father] on or about August 20, 2019. The violence was severe;
              [Father] struck [Mother] in the face with his fist, resulting in broken
              bones. [Mother’s] injuries were significant and required surgery.


      Court of Appeals of Indiana | Memorandum Decision 20A-JC-280 | July 30, 2020   Page 3 of 10
        2. One or more of the children witnessed the domestic violence
        incident.

        3. The parents admit there has been a history of domestic violence.

        4. Children witnessing domestic violence between two parents have
        their mental condition severely endangered. The impact on the children
        is shown by their reaction when interviewed by the Department of
        Child Services. The children stated that they were not allowed to talk
        about the incident. When asked certain questions, the children put their
        heads down toward the table and said [M]other didn’t want them to talk
        about it. The children did admit that parents sometimes yell. They also
        stated that they feel safe when [F]ather doesn’t yell. The children also
        stated that on the night of the most recent incident that parents were
        wrestling and [M]other received a black eye. They heard parents
        screaming and yelling at each other and also heard banging from the
        bedroom.

        5. [Mother] reluctantly signed the treatment plan that recommended
        individual therapy from her diagnostic assessment at Community
        Mental Health Center (CMHC) dated November 21, 2019. Mother
        denied counseling services or evaluations for the children. The Court
        also finds it significant that in a CMHC assessment on November 21,
        2019 that [Mother], when asked about family strengths, “volunteered no
        problems with her family.” []

        6. [Mother] has stated that she does not need help from [DCS].

        7. None of the proffered evidence from either [Mother] or [Father]
        indicates that either parent took the children to be evaluated to see what
        effect this incident had upon the mental health of the children. The
        domestic violence education materials submitted show the significant
        danger to children exposed to domestic violence.

        8. The Court also considers the brutality of the most recent incident to
        be significant. The Court also considers it consistent with mental health
        issues for [F]ather that following the attack that [F]ather just fell asleep
        as if nothing happened. The Court also considers it significant that both
        parents have minimized the severity of the violence and the effect on the
        children and themselves.

Court of Appeals of Indiana | Memorandum Decision 20A-JC-280 | July 30, 2020   Page 4 of 10
              9. The Court also considers that [Mother] failed to appear for the
              hearing on January 2, 2020. Mother was personally advised of the date
              by the Court.

                      The Court finds that the parents’ continued domestic violence in
              the presence of the children have seriously endangered their children as
              set forth herein. Court also finds that their inactions in addressing the
              root problems of domestic violence and the effect on the children
              seriously endangers the children. Based upon the circumstances
              outlined herein and the evidence submitted, the Court finds that the
              children’s needs are unmet. The Court also finds that based upon the
              actions of the parents outlined in this order and in the evidence
              presented, that it is unlikely that the parents will address the significant
              and dangerous problems present in the family and the children without
              coercive intervention of the Court. . . .


      Id. at 81-82. Following a dispositional hearing, the court entered a dispositional

      order providing that participation by the parents was necessary to facilitate

      reunification and ordering parents to complete certain services including a

      home-based counseling program and parenting assessments and all

      recommendations.


                                                   Discussion

[6]   Mother claims the trial court erred in concluding the children were CHINS.

      She argues DCS failed to prove the children’s physical or mental condition was

      seriously impaired or that she needed the government’s coercive interference to

      ensure services were in place to properly care for her children. She states the

      evidence did not support the finding that one or more of the children witnessed

      the incident, but concedes the children “did see the aftermath of the battery by

      observing Mother with a black eye and swollen face.” Appellant’s Brief at 12.

      Court of Appeals of Indiana | Memorandum Decision 20A-JC-280 | July 30, 2020   Page 5 of 10
      She challenges the court’s finding “stating that the evidence of Children not

      wanting to discuss the incident is evidence that there [sic] mental health was

      seriously impaired.” Id. at 13. She asserts that, while she may have originally

      denied counseling services, she and the children ultimately completed

      counseling evaluations.


[7]   We do not reweigh the evidence or judge the credibility of witnesses and

      consider only the evidence which supports the trial court’s decision and

      reasonable inferences drawn therefrom. In re S.D., 2 N.E.3d 1283, 1286-1287

      (Ind. 2014), reh’g denied. We apply the two-tiered standard of whether the

      evidence supports the findings and whether the findings support the judgment.

      Id. We will reverse a CHINS determination only if it is clearly erroneous. In re

      D.J., 68 N.E.3d 574, 578 (Ind. 2017). A decision is clearly erroneous if the

      record facts do not support the findings or if it applies the wrong legal standard

      to properly found facts. Id.


[8]   Ind. Code § 31-34-1-1 provides:

              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:

                       (A) when the parent, guardian, or custodian is financially able to
                       do so; or


      Court of Appeals of Indiana | Memorandum Decision 20A-JC-280 | July 30, 2020     Page 6 of 10
                        (B) due to the failure, refusal, or inability of the parent, guardian,
                        or custodian to seek financial or other reasonable means to do so;
                        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.

[9]    The CHINS statute does not require a court to wait until a tragedy occurs to

       intervene. In re A.H., 913 N.E.2d 303, 306 (Ind. Ct. App. 2009). Rather, a

       child is a CHINS when he or she is endangered by parental action or inaction.

       Id. The purpose of a CHINS adjudication is to protect children. Id. The

       Indiana Supreme Court has discussed the impact on children of exposure to

       domestic violence including psychological and developmental issues. See S.H.

       v. D.W., 139 N.E.3d 214, 216-217 (Ind. 2020).


[10]   To the extent Mother does not challenge the trial court’s findings of fact, the

       unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.

       Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver

       of the argument that the findings were clearly erroneous), trans. denied. Further,

       where there is evidence sufficient to support the trial court’s ultimate findings

       on the elements necessary to sustain the judgment, we may find that an

       erroneous finding is merely harmless surplusage that did not prejudice the

       appellant and is not grounds for reversal. See In re B.J., 879 N.E.2d 7, 20 (Ind.

       Ct. App. 2008), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 20A-JC-280 | July 30, 2020     Page 7 of 10
[11]   The trial court found that there was a domestic violence incident between Mother

       and Father on or about August 20, 2019, that the violence was severe, that Father

       struck Mother in the face with his fist resulting in broken bones, and that Mother’s

       injuries were significant and required surgery. Mother does not challenge these

       findings. The preliminary report stated Mother “was beat up by [Father] with

       the children present,” Mother “initially reported trying to break up a fight

       between three men and was hit in the face,” she “later admitted her husband hit

       her with his fist,” she “did sustain broken bones from this incident,” “[b]oth

       parents admitted to domestic incidents occurring in the past,” and “[t]here were

       concerns for [Father] drinking alcohol.” Appellant’s Appendix Volume II at

       23. According to the preliminary report, Mother indicated that she and Father

       are divorced but were dating and living together inconsistently, Father has

       mental health issues that have not been addressed, he was screaming and not

       making a lot of sense on the night of the incident, she told him “to quit yelling

       and he got even more worked up,” he then used his fist and punched her in the

       face, he “fell asleep afterwards as if everything was normal,” and the following

       day she went to the hospital and Father went to work. Id. The report stated

       Mother “denied counseling services or evaluations for herself and the children.”

       Id.


[12]   Also according to the preliminary report, Father indicated that he and Mother

       were drinking and arguing, Mother “heard the children wake up and insisted he

       do something about it,” he “cursed at the children to go back to bed,” “[w]hen

       he turned around, [Mother] was charging at him with a glass bottle of Crown


       Court of Appeals of Indiana | Memorandum Decision 20A-JC-280 | July 30, 2020   Page 8 of 10
       Royal,” he “instantly punched [Mother] in her face twice,” he “heard one of the

       children say something but denied they witnessed the incident,” and he

       “admitted that the children are aware of what happened even if they did not

       witness the incident.” Id. The report further provided that the children were

       interviewed but were observed to be hesitant to communicate about the

       incident, “FCM was informed by the children they were not allowed to talk

       about the incident,” “[w]hen asked certain questions, they faced their heads

       down towards the table and stated their mother did not want them to talk about

       it,” and the children reported that, on the night of the incident, their parents

       were wrestling, Mother received a black eye, they heard their parents screaming

       at each other, they heard a lot of banging from the bedroom, and they denied

       witnessing any physical altercations between their parents that night. Id. The

       diagnostic assessment history completed for Mother on November 21, 2019,

       provides in part that she “appeared to reluctantly sign the treatment plan”

       which recommended individual therapy, indicated she did not want anyone else

       involved in treatment, and “denie[d] family member(s) having mental health

       problems.” Id. at 64. Mother “volunteered no problems with her family.” Id.

       at 69.


[13]   To the extent Mother invites us to reweigh the evidence, we are unable to do so.

       See In re S.D., 2 N.E.3d at 1286. The court was able to consider the submitted

       materials and Mother’s actions and omissions, relationship with Father, and

       ability to protect the children. As noted, the CHINS statute does not require

       that a court wait until a tragedy occurs to intervene. See In re A.H., 913 N.E.2d


       Court of Appeals of Indiana | Memorandum Decision 20A-JC-280 | July 30, 2020   Page 9 of 10
       at 306. There is sufficient evidence to support the trial court’s ultimate findings

       on the elements necessary to sustain the judgment. We conclude that the

       judgment reached by the trial court is not clearly erroneous.


[14]   For the foregoing reasons, we affirm the trial court’s order.


[15]   Affirmed.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JC-280 | July 30, 2020   Page 10 of 10
