MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                   Aug 26 2015, 8:39 am
Memorandum Decision shall not be regarded as
precedent or cited before any 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
Michael B. Troemel                                        Gregory F. Zoeller
Lafayette, Indiana                                        Attorney General of Indiana
                                                          Robert J. Henke
                                                          James D. Boyer
                                                          Deputies Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of:                                        August 26, 2015
                                                         Court of Appeals Case No.
R.F. (Minor Child), Child in Need of                     79A04-1412-JC-601
Services
And                                                      Appeal from the Tippecanoe
A.P. (Mother),                                           Superior Court
                                                         The Honorable Faith A. Graham,
Appellant-Respondent,                                    Judge
                                                         The Honarable Crystal A. Sanders,
        v.                                               Magistrate
                                                         Cause No. 79D03-1407-JC-201
The Indiana Department of Child
Services,
Appellee-Petitioner,




Robb, Judge.


Court of Appeals of Indiana | Memorandum Decision 79A04-1412-JC-601 |August 26, 2015    Page 1 of 11
                                   Case Summary and Issues
[1]   A.P. (“Mother”), appeals the juvenile court’s ruling that her six-year-old son,

      R.F., is a child in need of services (“CHINS”), pursuant to Indiana Code

      sections 31-34-1-1 and -2. Mother raises three issues on appeal that we restate

      as whether the evidence supports the findings and whether the findings support

      the judgment. Concluding that substantial evidence supports the juvenile

      court’s findings and that those findings support the judgment, we affirm.



                               Facts and Procedural History
[2]   Mother knew C.B. (“Boyfriend”) in high school and began dating him in March

      2014. Beginning in May of that year, Mother left R.F. and her fourteen-month-

      old daughter, S.F., in Boyfriend’s care for up to nine hours at a time while

      Mother went to work. Boyfriend cared for the children on three or four

      occasions prior to the events at issue here.


[3]   On Friday, July 18, 2014, S.F. was not feeling well. The next morning, S.F.

      was still not feeling well and was not eating normally. Mother gave S.F. some

      Tylenol. Mother went to work around 9:30 a.m., leaving R.F. and S.F. in

      Boyfriend’s care. S.F. then napped off and on through the day. When she

      awoke from her last nap, S.F. appeared to Boyfriend to be back to normal.

      Boyfriend held S.F. on his lap while the other children 1 played. S.F. leaned




      1
          Boyfriend’s three-year-old son was also present that day.


      Court of Appeals of Indiana | Memorandum Decision 79A04-1412-JC-601 |August 26, 2015   Page 2 of 11
      back to take a drink from her sippy cup and then went limp in Boyfriend’s arms.

      Boyfriend called Mother, who was on her way home from work. After she

      arrived home and saw S.F., Mother called her mother, T.D. (“Grandmother”).

      Boyfriend wanted to call 9-1-1, but Mother wanted to wait for Grandmother’s

      opinion.


[4]   Grandmother arrived shortly thereafter. By that time, S.F. was conscious but

      appeared dazed. Mother decided to wait until the next day to go to the hospital

      to see if S.F.’s condition improved. Grandmother recommended that they give

      S.F. Tylenol and that they keep an eye on the child. Grandmother noticed that

      S.F. had a bite mark on her right hand and what appeared to be fingerprints on

      her upper left arm. Grandmother asked Boyfriend and Mother about the marks

      but received no explanation. S.F. spent most of the next day, Sunday, with

      Grandmother and appeared to be acting normally. Monday morning S.F. had

      a mild temperature. Mother administered more Tylenol before putting S.F. in

      her crib. Mother placed S.F. and R.F. in Boyfriend’s care and left the home for

      an appointment.


[5]   Later that day, S.F. became unresponsive. S.F. was treated at a local hospital

      and then was airlifted to Riley Hospital in Indianapolis. S.F. had twenty

      separate areas of bruising on her body, including on the left and right side of her

      forehead, on her right ear, behind her left ear, on the right side of her neck, on

      her right hand, wrist, forearm, and armpit, on her left arm near the armpit and

      elbow, on her chestwall, on her abdomen in multiple places, up and down her

      right and left legs, and on her right buttock. In addition, S.F. had sustained a

      Court of Appeals of Indiana | Memorandum Decision 79A04-1412-JC-601 |August 26, 2015   Page 3 of 11
      subdermal hematoma. She could no longer breathe on her own, and her pupils

      had ceased to react to light. S.F. died from her injuries on July 22, 2014. It was

      the opinion of the physician who treated S.F. that S.F.’s injuries were non-

      accidental and consistent with child abuse.


[6]   Following S.F.’s death, R.F. was removed from Mother’s home and placed

      with a relative. A CHINS petition was filed. At the fact-finding hearing on the

      petition, Mother and Boyfriend denied inflicting S.F.’s injuries. Neither

      Mother nor Boyfriend offered an explanation as to how S.F. sustained her

      injuries. The juvenile court found that R.F. was a CHINS. Additional facts

      will be added as necessary.



                                 Discussion and Decision
                                      I. Standard of Review
[7]   When, as here, the juvenile court enters findings of fact and conclusions

      thereon in a CHINS determination, we apply a two-tiered standard of review.

      In re J.V., 875 N.E.2d 395, 402 (Ind. Ct. App. 2007), trans. denied. First, we

      determine whether the evidence supports the findings, and second, we

      determine whether the findings support the conclusions. Id. In making this

      determination, we do not reweigh the evidence or reassess witness credibility.

      Id. We will reverse only if, considering the evidence favorable to the juvenile

      court’s judgment, the evidence does not support the findings or the findings do

      not support the judgment. Id. We may not set aside the findings or judgment

      unless they are clearly erroneous. In re Des.B., 2 N.E.3d 828, 836 (Ind. Ct. App.
      Court of Appeals of Indiana | Memorandum Decision 79A04-1412-JC-601 |August 26, 2015   Page 4 of 11
      2014) (citing Ind. Trial Rule 52(A); Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d

      1206, 1210 (Ind. 2000)). “Findings are clearly erroneous only when the record

      contains no facts to support them either directly or by inference.” Id. (quoting

      Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996)).


                        II. Evidence Supporting the Findings
[8]   Regarding the Saturday incident when S.F. first lost consciousness, the juvenile

      court found that

              [b]oth Mother and Grandmother went to the home and, upon arrival,
              both report [S.F.] was breathing and did not appear to be in distress,
              though she was unconscious.
      Appellant’s Appendix at 40 (emphasis added). Mother argues that this finding

      was not supported by evidence.


[9]   Boyfriend testified as follows:

              Q: So that was about 15 minutes later after you called the Mother for
              the – or since you had spoken to her and she was on her way home?
              A: Yes.
              Q: And then was [S.F] still unconscious?
              A: By the time her mom - by the time her mom showed up there she was
              like, she had come to. It was like a switch flipped, like you know she
              was responsive, she was looking around and everything, smiling, like
              back to normal.
              Q: How long did it take for [S.F.] to become responsive again?
              A: Probably like – as soon as – for about like two minutes or so before
              her mom pulled up to that apartment is when she like started coming to.
              She was like –
              Q: When you say her do you mean the Mother or the grandmother?


      Court of Appeals of Indiana | Memorandum Decision 79A04-1412-JC-601 |August 26, 2015   Page 5 of 11
               A: The grandmother, the grandmother.
       Transcript at 79 (emphasis added).


[10]   With respect to Mother, the evidence showed that she arrived at the home and

       then called Grandmother. Grandmother arrived five or ten minutes later.

       Thus, according to Boyfriend’s testimony, there was a period of time between

       Mother’s and Grandmother’s arrival during which S.F. was still unconscious.

       This evidence supports the juvenile court’s finding that S.F. was still

       unconscious when Mother arrived. In her Brief, Mother does not address the

       fact that Boyfriend clarified that he was referring to the grandmother’s arrival in

       his testimony.


[11]   We agree with Mother that the evidence did not support the juvenile court’s

       finding as to Grandmother. No one testified that S.F. was still unconscious

       upon Grandmother’s arrival. However, given the other findings supporting the

       judgment, the partial insufficiency of this finding does not undermine the

       CHINS determination.



                   III. Findings Supporting the Judgment
[12]   A CHINS determination requires that the juvenile court find that a child is

       endangered and that court intervention is necessary. Ind. Code §§ 31-34-1-1, -2.

       The juvenile court’s Fact-Finding Order provided in relevant part as follows:

               The Court finds, by a preponderance of the evidence, that [R.F. is a
               CHINS], as defined by Indiana law:



       Court of Appeals of Indiana | Memorandum Decision 79A04-1412-JC-601 |August 26, 2015   Page 6 of 11
                . . . wherein 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 parents, guardian, or custodian to supply the
               child with necessary food, clothing, shelter, medical care, education,
               or supervision.
                . . . wherein the child’s physical or mental health is seriously
               endangered due to injury by the act or omission of the child’s parent,
               guardian, or custodian.
               In that: [sic] Court finds [R.F.] to be a CHINS based on Mother’s
               failure to seek medical care for [S.F.], Mother’s failure to supervise the
               children, and Mother’s failure to protect the child from the supervising
               custodian.
               The Court further finds that the child need [sic] care, treatment, or
               rehabilitation that the child is not receiving; and that is unlikely to be
               provided or accepted without the coercive intervention of the Court.
       Appellant’s App. at 42. Mother argues that the juvenile court’s findings that

       she failed to supply medical care, failed to supervise, and failed to protect do

       not support the judgment.


                                  A. Failure to Seek Medical Care
[13]   The findings pertaining to Mother’s failure to seek medical care for S.F. are as

       follows:

               8. Sometime Satuday afternoon, [Boyfriend] contacted Mother and
               Grandmother because [S.F.] passed out while in his care.
               9. Both Mother and Grandmother went to the home and, upon
               arrival, both report [S.F.] was breathing and did not appear to be in
               distress, though she was unconscious. Neither Mother, Grandmother
               nor [Boyfriend] took [S.F.] to the hospital or a physician to be
               examined.
               10. Grandmother reports she noticed a bite mark and bruising on
               [S.F.’s] arm but [S.F.] was unable to articulate the source of the
               bruising due to her age. Neither Mother nor Grandmother reported


       Court of Appeals of Indiana | Memorandum Decision 79A04-1412-JC-601 |August 26, 2015   Page 7 of 11
               the bite marks or bruising to CPS or law enforcement. Further, the
               only explanation offered by [Boyfriend] to Mother for the bruising was
               that [R.F] grabbed [S.F.’s] arm and would not let go.
               ***
               23. Further, Mother did not seek medical treatment for [S.F.] after
               [S.F.] was unresponsive on the first occasion.
       Appellant’s App. at 40-42. Mother argues that, because S.F. eventually

       appeared to act normally after she passed out on Saturday, there was seemingly

       no reason to take S.F. for medical treatment. Mother also briefly argues that

       any failure on her part to seek medical care for S.F. would not repeat itself

       because R.F. is old enough to speak.


[14]   We disagree. There was no evidence presented at the fact-finding hearing that

       S.F. had a history of losing consciousness. Although it is unclear from the

       record precisely how long S.F. was unconscious, it was for more than just a

       moment. The sustained loss of consciousness, especially in a child who has no

       prior history of it, is a significant health event, even if the child does

       subsequently appear normal. Given that S.F. had not been feeling well, passed

       out, and exhibited a bite mark and bruises on her arm, the juvenile court’s

       conclusion that Mother should have been alerted that something was wrong

       with S.F. that merited medical attention was not clearly erroneous. To the

       extent that Mother argues that the intervention of the court was not necessary

       because R.F. can speak, we note that the potential capability of a child to

       explain why he lost consciousness would not alter the fact that the child had

       passed out and needed medical attention. We conclude that the juvenile court’s



       Court of Appeals of Indiana | Memorandum Decision 79A04-1412-JC-601 |August 26, 2015   Page 8 of 11
       findings regarding Mother’s failure to seek medical care support the judgment

       that R.F. was endangered and that court intervention was necessary.


                     B. Failure to Supervise/Protect from Custodian
[15]   The juvenile court’s order provided the following regarding Mother’s failure to

       supervise the children and/or protect them from her chosen custodian,

       Boyfriend:

               7. On Saturday, July 19, 2014, Mother had [Boyfriend] babysit the
               children.
               8. Sometime Saturday afternoon, [Boyfriend] contacted Mother and
               Grandmother because [S.F.] passed out while in his care.
               ***
               11. On Monday, July 21, 2014, Mother again left [S.F.] home with
               [Boyfriend] while she went for a manicure. Mother was gone
               approximately one to one and one-half (1 ½ ) hours….
               ***
               22. It is unknown whether Mother or [Boyfriend] inflicted the injuries
               upon [S.F], however, a child is now deceased after being in the care of
               Mother and/or a custodian approved by Mother. In addition, Mother
               continued to leave the children in the care of [Boyfriend] without
               sufficient information to explain the injuries to [S.F.] in the form of a
               bite mark and bruising on her arm.
               ***
               24. Mother either failed to supervise the children or failed to protect
               the children from exposure to injury, and the result is the tragic death
               of a child.
               25. The Court is not required to wait until [R.F.] suffers a similar
               harm before intervening.
       Appellant’s App. 40-42. Mother argues that the juvenile court’s findings do not

       support the conclusion that she failed to supervise the children or to protect

       Court of Appeals of Indiana | Memorandum Decision 79A04-1412-JC-601 |August 26, 2015   Page 9 of 11
       them from Boyfriend because “it amounts to a finding that [M]other should

       have foreseen the harm coming to S.F.” Brief of Appellee at 10. Mother argues

       that nothing would have caused her to foresee that S.F. would become ill or

       injured, and she directs us to evidence supporting her decision to allow

       Boyfriend to care for her children.


[16]   Mother’s argument is unpersuasive in that it focuses only on her version of the

       events that preceded S.F.’s death. In making a CHINS determination, a

       juvenile court considers the circumstances surrounding the events that caused

       the petition to be filed as well as the circumstances at the time of the fact-

       finding hearing. In re R.S., 987 N.E.2d 155, 159 (Ind. Ct. App. 2013) (reversing

       a CHINS determination where juvenile court failed to consider improvement

       made by parents by the time of the fact-finding hearing). Mother has never

       disputed that she had custody of S.F. and that S.F. died after being in the care

       of Boyfriend. It was the opinion of the physician who treated S.F. at Riley

       Hospital that S.F. was the victim of abuse and that her injuries were non-

       accidental.


[17]   At the fact-finding hearing, Mother denied inflicting S.F.’s injuries, and she had

       no explanation as to how those injuries had occurred. Since the cause of S.F.’s

       injuries was unknown, we cannot say that it was clearly erroneous for the

       juvenile court to conclude that Mother had failed to supervise or protect her

       children and that removal was necessary to protect R.F. This is particulary true

       in light of the fact that “‘[a] CHINS adjudication does not establish culpability

       on the part of a particular parent.’” In re Des.B., 2 N.E.3d at 835 (quoting N.L.

       Court of Appeals of Indiana | Memorandum Decision 79A04-1412-JC-601 |August 26, 2015   Page 10 of 11
       v. Ind. Dep’t of Child Servs. (In re N.E.), 919 N.E.2d 102, 105 (Ind. 2010)). “Said

       differently, the purpose of a CHINS adjudication is to protect children, not

       punish parents.” In re N.E., 919 N.E.2d at 106.



                                               Conclusion
[18]   We conclude that the juvenile court’s finding that S.F. was unconscious when

       Grandmother arrived is unsupported by the evidence, but that the insufficiency

       does not undermine the CHINS determination. The trial court’s judgment that

       Mother failed to seek medical care for S.F. and failed to supervise or protect her

       children, endangering R.F. and requiring the coercive intervention of the court,

       was supported by the findings.


[19]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1412-JC-601 |August 26, 2015   Page 11 of 11
