MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Nov 29 2018, 6:52 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Karen E. Wrenbeck                                        Curtis T. Hill, Jr.
Monroe County Public Defender’s Office                   Attorney General of Indiana
Bloomington, Indiana
                                                         Katherine A. Cornelius
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of R.F. (a Child in                        November 29, 2018
Need of Services)                                        Court of Appeals Case No.
                                                         18A-JC-1394
                                                         Appeal from the Monroe Circuit
Z.F. (Father),                                           Court
Appellant-Respondent,                                    The Honorable Stephen R. Galvin,
                                                         Judge
        v.
                                                         Trial Court Cause No.
                                                         53C07-1710-JC-822
The Indiana Department of
Child Services,
Appellee-Petitioner.



Bailey, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-JC-1394 | November 29, 2018                   Page 1 of 16
                                                Case Summary
[1]   Following fact-finding and dispositional hearings and orders, Z.F. (“Father”)

      appeals1 the trial court’s order adjudicating his child, R.F. (“Child”), to be a

      Child in Need of Services (“CHINS”). He raises one issue on appeal: whether

      there was sufficient evidence to support the determination that Child is a

      CHINS.


[2]   We affirm.



                                Facts and Procedural History
[3]   Father and Mother are the parents of Child, who was born on April 20, 2016.

      From a previous marriage to R.B., Mother also has another child, O.B., born

      March 8, 2013. Mother and R.B. had a history of committing domestic

      violence in front of O.B. and entered into an Informal Adjustment Agreement

      (“IAA”) with the Indiana Department of Child Services (“IDCS”) to address

      domestic violence issues in 2013. However, the IAA was ultimately closed

      after Mother and R.B. consistently failed to participate in services.


[4]   After Child was born, she, Mother, Father, and O.B. began living together. In

      January 2017, IDCS received, assessed, and substantiated a report against

      Mother and Father for engaging in domestic violence in the presence of Child




      1
          J.S. (“Mother”) does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-1394 | November 29, 2018   Page 2 of 16
      and O.B. In March of 2017, Father and Mother entered into an IAA under

      which Mother was to receive services and Father was ordered to “immediately

      report to the Family Case Manager any attempts by [Mother] to have access to

      or communicate with [Father].”2 Ex. 4 at 90. Child resided with Father, and

      Father obtained a protective order that forbade Mother to come into contact

      with Father. Father obtained sole custody of Child in July 2017.


[5]   Despite the protective order, in the summer of 2017, Father allowed Mother to

      move back into the home with Father and Child. On October 24, 2017, Mother

      and Father again engaged in domestic violence in the presence of Child. On

      October 25, 2017, IDCS filed a petition3 alleging Child and O.B. were CHINS.

      Specifically, the CHINS petition asserted that Mother and Father engaged in

      domestic violence in the presence of Child and O.B.,4 thus placing the children

      in danger, and that Father “was observed by DCS to be impaired as he was

      irate, violent, and smelled of alcohol[, and h]e made homicidal and suicidal

      threats in the presence of [Child].” Verified Petition Alleging Children to be

      Children in Need of Services, Cause No. 53C07-1710-JC-822.




      2
       Thus, Father is incorrect when he asserts that the IAA did not order him “to do anything.” Appellant’s Br.
      at 15.
      3
        Neither party to this proceeding provided in the record a copy of the CHINS petition. However, we were
      able to access that document through the court’s electronic case management system, and we take judicial
      notice of that document pursuant to Indiana Rule of Evidence 201(a). See, e.g., Horton v. State, 51 N.E.3d
      1154, 1161-62 (Ind. 2016).
      4
        The CHINS petition related to both Child and O.B. However, the CHINS finding as to O.B. is not at issue
      in this case.

      Court of Appeals of Indiana | Memorandum Decision 18A-JC-1394 | November 29, 2018               Page 3 of 16
[6]   The court conducted a fact-finding hearing on February 7, February 21, and

      March 19, 2018, at which IDCS introduced as Exhibit 8 the mental health and

      substance use evaluation of Father conducted by Cornerstone in January 2018.

      In that evaluation, Father denied ever engaging in domestic violence and said

      Mother was the only one who engaged in such violence. Father also stated

      “that he has never been violent in his entire life,” and he denied any history of

      intending to hurt others. Exhibit 8 at 125-27.


[7]   On April 17, 2018, the trial court issued Findings of Fact and Conclusions of

      Law which stated in relevant part:


                                              Findings of Fact


                                                     ***


              5.     In June, 2016, [Child] was two months old. [Mother] and
              [Father] engaged in an altercation when [Father] came home
              intoxicated. [Mother] was holding [Child]. [Father] grabbed
              [Mother] so violently that her head bumped into [Child]’s.
              [Mother] almost dropped [Child]. Fortunately, the child was
              unhurt. [Mother] did not report this incident to law enforcement.


              6.     In October or November, 2016, [Mother] became upset
              with [Father]. [Father] had stolen [Mother]’s money to buy
              drugs. [Father] attacked [Mother]. [Mother] smashed [Father]’s
              guitar on the concrete.


              7.     On January 25, 2017, [Mother] threatened [Father] with a
              knife, punched him, and tried to strangle him. [Father] had a
              black eye. [O.B.] witnessed this altercation.


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-1394 | November 29, 2018   Page 4 of 16
        8.    [Mother] was charged with Domestic Battery in the
        Presence of a Child less than l6 years old. The case is still
        pending. [Mother] admits that [O.B.] witnessed an altercation
        between herself and [Father]. However, she characterizes her
        actions as self-defense. She admits that there is a history of
        physical violence between the two. She believes [Father] is an
        alcoholic.


        9.    [Father] obtained an Order of Protection against [Mother]
        on February 14, 2017. The Order prohibits [Mother] from
        having contact with [Father].


        10. On April 26, 2017, [Mother] violated the Protective Order
        by going to [Father]’s home in an attempt to take [Child].
        [Father] called the police. [Mother] was arrested for Invasion of
        Privacy.


        11. As a result of the altercation in the presence of [O.B.],
        [Mother] and [Father] entered into an Informal Adjustment
        Agreement with the DCS. The Informal Adjustment was
        approved by the Court on May 23, 2017.


        12. On July l3, 2017, [Father] was granted sole legal and
        physical custody of [Child]. The Court noted that [Father] was
        providing [Child] with a safe and stable environment. [Mother]’s
        inability to control her anger was characterized as “troubling and
        not conducive to appropriate parenting.”


        13. Despite the Protective Order and Custody Order, [Father]
        allowed [Mother] to return to his home. He allowed her to live
        in the home off and on prior to October 24, 2017. Predictably,
        another altercation occurred on October 24, 2017. During the
        altercation, [Mother] grabbed [Father] by the neck and scratched
        him. He was bleeding from the elbow when Sheriff’s Deputies
        arrived. When discussing the incident with DCS caseworker

Court of Appeals of Indiana | Memorandum Decision 18A-JC-1394 | November 29, 2018   Page 5 of 16
        Dennis Martin, [Father] began yelling. He threatened suicide.
        He also threatened a Family Case Manager. [Child] was in the
        room at the time.


        14. [Father] became very aggressive. He was screaming and
        incoherent. [Father] was detained by the Deputies and taken to
        Bloomington Hospital. He was admitted on a 72 hour hold for
        psychiatric evaluation. He was very belligerent to the ambulance
        staff. He smelled of alcohol.


        15. [Mother] denied staying with [Father]. She stated that
        [Father] was drunk and assaulted her. She stated that [Father]
        dragged her into the home where [Child] was present. [Child]
        was hitting [Father] in an attempt to get him to stop. During the
        altercation, [Mother] inadvertently kicked [Child] in the head.
        [Mother] had damage to her lip. [O.B.] was in the car when
        [Father] dragged her into the home. [Mother] stated that [O.B.]’s
        face was cut when [Father] broke a window in her vehicle.
        [Mother] had injuries to her arm and face.


        16. The investigating officer made no arrests because he could
        not determine who was at fault. He did note that [O.B.] was
        visibly distraught and had glass in his hair. Based on his
        observations, the officer felt the children were in danger because
        of the actions of the parents.


        l7.    [Father] suffers from clinical depression. He attempted
        suicide in May, 2016.


        l8.    [Father] completed a psychological evaluation in January,
        2018, at Centerstone, the local mental health center. He was
        diagnosed with Major Depressive Disorder and Alcohol Use
        Disorder, Moderate. Intensive outpatient treatment (IOP) and
        individual therapy were recommended. A psychiatric assessment
        might be appropriate once he is engaged in individual therapy.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-1394 | November 29, 2018   Page 6 of 16
        The evaluator noted that he might be a good candidate for the
        SoberLink program.


                                               ***


        21. [Father] recently pled guilty to Operating while
        Intoxicated, a Level 6 Felony.


        22. [Mother] participated in individual therapy in 2017 and
        2018. The therapy did not prevent her from engaging in acts of
        domestic violence in the presence of her children.


                                     Conclusions of Law


        1.     Mother has engaged in a pattern of domestic violence in
        the presence of her children. Treatment and intervention by the
        DCS has not been effective. This pattern includes the following:


                                               ***


                i.       Although [Father] knew that he and [Mother] had a
                         history of domestic violence in the presence of the
                         children, he allowed [Mother] to move back into his
                         home. Predictably, on October 24, 2017, another
                         incident of domestic violence occurred. During the
                         altercation, [Mother] grabbed [Father] by the neck
                         and scratched him. He was bleeding from the
                         elbow. [Mother] had injuries to her arm and face.
                         [Mother] stated that [Father] dragged her into his
                         home while Child was present. Child was hitting
                         [Father] in an attempt to get him to stop. [O.B.]
                         was covered in glass when the car window was
                         smashed during the altercation. [O.B.] was visibly
                         distraught and had glass in his hair. The officers at

Court of Appeals of Indiana | Memorandum Decision 18A-JC-1394 | November 29, 2018   Page 7 of 16
                         the scene felt the children were in danger because of
                         the parents’ actions.


                                               ***


        3.     [Child] is only two years old. When two months old, her
        mother bumped her head and almost dropped her during an
        altercation with [Father]. In October, [Child] was hitting
        [Father] in an attempt to stop the altercation between [Father]
        and [Mother]. [Mother] accidentally kicked [Child] in the head
        during the altercation.


        4.      These children are being raised in an atmosphere where
        domestic violence is a regular occurrence. It is only a matter of
        time before they are injured. During the incidents of domestic
        violence, the parents utterly fail to offer appropriate care and
        supervision for their children. They are intent on engaging in
        their fights and are oblivious to the impact on the children.
        Clearly, the physical and mental condition of the children is
        seriously impaired or seriously endangered as a result of the
        refusal and neglect of the parents to supply the children with
        necessary supervision.


        5.      [Mother] has engaged in ongoing individual therapy over
        the past year. This therapy has been wholly unproductive. She
        continues to engage in acts of domestic violence. She takes no
        responsibility for her actions. She has signed two Informal
        Adjustment Agreements with DCS. She failed to comply with
        the first Informal Adjustment Agreement and failed to benefit
        from services offered during the second.


        6.     [Father] and [Mother] have a history of domestic violence
        in the presence of the children. Despite that history, [Father]
        allowed [Mother] to return to his home. This precipitated a new
        incident of domestic violence in the presence of the children.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-1394 | November 29, 2018   Page 8 of 16
              [Father] cannot be trusted to enforce the terms of the protective
              order or the custody order. He cannot ensure that the children
              will not be exposed to more domestic violence between himself
              and [Mother].


              ***


              8.     In light of the parents’ lengthy histories of domestic
              violence in front of the children, and their failure to benefit from
              services offered by DCS, it is unlikely that they will voluntarily
              participate in services designed to prevent future domestic
              violence without the coercive intervention of the Court.


              9.    The Department of Child Services has proven, by a
              preponderance of the evidence, that [O.B.] and [Child] are
              Children in Need of Services.


      App. at 8-13.


[8]   On May 3, 2018, IDCS filed a Pre-Dispositional Report and addendum

      recommending services for both parents, including Father’s participation in a

      domestic violence prevention program. The trial court conducted a

      dispositional hearing on May 14, 2018, at which Father testified that IDCS had

      requested that he engage in domestic violence prevention services, but that his

      therapist believed he could address domestic violence through individual

      therapy alone. Family case manager (“FCM”) Lindsey McDonald testified that

      IDCS recommended domestic battery services for both parents, but that IDCS

      intended to work with a local domestic violence service provider and Father’s

      therapist to “get a therapeutic opinion” regarding which domestic violence


      Court of Appeals of Indiana | Memorandum Decision 18A-JC-1394 | November 29, 2018   Page 9 of 16
       services were appropriate for Father. FCM McDonald stated that IDCS would

       abide by that therapeutic opinion. Id.


[9]    On May 14, 2018, the trial court issued a Dispositional and Review Order in

       which it found that Child needs “a safe and stable home, free from domestic

       violence and neglect,” and ordered Child to remain in placement with the

       paternal grandparents pending further proceedings. App. at 14. This appeal

       ensued.



                                  Discussion and Decision
                                        Standard of Review
[10]   The juvenile court adjudicated Child to be a CHINS pursuant to Indiana Code

       Section 31-34-1-1, which 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; and


               (2) the child needs care, treatment, or rehabilitation that:


               (A) the child is not receiving; and




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1394 | November 29, 2018   Page 10 of 16
               (B) is unlikely to be provided or accepted without the coercive
               intervention of the court.


[11]   In reviewing a CHINS determination, we do not reweigh evidence or assess

       witness credibility but consider only the evidence in favor of the juvenile court’s

       judgment, along with any reasonable inferences arising therefrom. J.M. v. Ind.

       Dep’t of Child Serv. (In re N.C.), 72 N.E.3d 519, 523 (Ind. Ct. App. 2017). When

       the trial court enters findings of fact and conclusions of law sua sponte, we apply

       a two-tiered standard of review to the issues covered by the findings: we

       consider, first, whether the evidence supports the findings and, second, whether

       the findings support the judgment. Ind. Trial Rule 52(A); In re S.D., 2 N.E.3d

       1283, 1287 (Ind. 2014).


[12]   However, “we review the remaining issues under the general judgment

       standard, under which a judgment will be affirmed if it can be sustained on any

       legal theory supported by the evidence.” In re S.D., 2 N.E.3d at 1287.

       (quotation marks and citation omitted). Under the general judgment standard

       of review, the reviewing court “may look both to other findings and beyond the

       findings to the evidence of record to determine if the result is against the facts

       and circumstances before the court.” C.B. v. B.W., 985 N.E.2d 340, 344 (Ind.

       Ct. App. 2013), trans. denied. In deference to the trial court’s proximity to the

       issues, an appellate court will “disturb the judgment only where there is no

       evidence supporting the findings or the findings fail to support the judgment.”

       In re Guardianship of B.H., 770 N.E.2d 283, 287-288 (Ind. 2002) (quotations and

       citations omitted).

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1394 | November 29, 2018   Page 11 of 16
                 Sufficiency of Evidence that Child is a CHINS
[13]   A CHINS adjudication under Indiana Code Section 31-34-1-1 requires 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 at 1287. That final element “guards against unwarranted State

       interference in family life, reserving that intrusion for families where parents

       lack the ability to provide for their children, not merely where they encounter

       difficulty in meeting a child’s needs.” Id. (quotation marks and citation

       omitted).


[14]   Courts should consider the family’s condition not only at the time the CHINS

       case was filed, but also when the case is heard at the fact-finding hearing. Gr.J.

       v. Ind. Dep’t of Child Serv. (In re D.J.), 68 N.E.3d 574, 580 (Ind. 2017); see also,

       E.B. v. Ind. Dep’t of Child Serv. (In re Des.B.), 2 N.E.3d 828, 836 (Ind. Ct. App.

       2014) (quotation marks and citation omitted) (“A CHINS adjudication may not

       be based solely on conditions that no longer exist, but the court should consider

       the family’s situation at the time the case is heard by the court.”). IDCS has the

       burden of proving by a preponderance of the evidence that the child is a

       CHINS. See, e.g., J.J. v. Ind. Dep’t of Child Serv. (In re K.S.), 78 N.E.3d 740, 744

       (Ind. Ct. App. 2017). IDCS may not simply rely upon allegations; rather, it

       must gather the facts and the evidence to support its CHINS petition. D.B. v.

       Ind. Dep’t of Child Serv. (In re D.B.), 43 N.E.3d 599, 606 (Ind. Ct. App. 2015).



       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1394 | November 29, 2018   Page 12 of 16
[15]   Here, the trial court based its CHINS determination on the parents’ repeated

       episodes of domestic violence in the presence of Child.5 And there was

       abundant evidence in the record that Father’s and Mother’s violent fights in the

       presence of Child endangered her both physically and emotionally. When

       Child was only two months old, Father grabbed Mother so hard that her head

       struck Child and she almost dropped Child. And right before the CHINS

       petition was filed, the parents’ violent fighting caused Mother to accidentally

       kick Child and Child to hit Father in an attempt to make him stop fighting.

       Moreover, there was evidence that neither Father nor Mother had any

       compunction about physically assaulting each other in the presence of Child’s

       half-sibling, O.B. O.B. witnessed repeated instances of domestic violence,

       causing him to be afraid. In the most recent instance, a car window was

       shattered due to the parents’ physical altercation, and it caused glass to fall

       down onto O.B. while he was sitting in the car. All of that evidence supports

       the trial court’s findings that Father and Mother engaged in repeated instances

       of domestic violence in the presence of Child and her half-sibling and, in doing

       so, seriously endangered Child.6




       5
         Although the CHINS petition referenced Father’s alcohol use and mental health in addition to the
       domestic violence, the trial court only based its CHINS decision on the domestic violence in the presence of
       Child. App. at 12-13, Conclusions 4-8. Therefore, we do not address issues of substance use or mental
       health.
       6
         Furthermore, we note that the “CHINS statute does not require the juvenile court and the DCS to wait
       until a child is physically or emotionally harmed to intervene.” M.W.B. v. Ind. Dep’t of Child Serv. (In re K.B.),
       24 N.E.3d 997, 1003-04 (Ind. Ct. App. 2015). Rather, IDCS must only show that the parents’ actions
       seriously endanger the child. I.C. § 31-34-1-1.

       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1394 | November 29, 2018                    Page 13 of 16
[16]   And those findings support the trial court’s conclusion that “[d]uring the

       incidents of domestic violence, the parents utterly fail to offer appropriate care

       and supervision of their children.” App. at 12. Instead, the parents’ repeated

       acts of violence against each other put the children’s physical and emotional

       safety at great risk. The findings also support the trial court’s conclusion that

       the domestic violence in the presence of the children was unlikely to end

       without the coercive intervention of the court. Father knew that he and Mother

       had a history of committing violence against each other in the presence of

       Child, yet he allowed Mother to return to his home even when a protective

       order was in place, leading to more violence in Child’s presence. The trial court

       did not err in concluding that “[Father] cannot be trusted to enforce the terms of

       the protective order or the custody order[,]” nor can he “ensure that the

       children will not be exposed to more domestic violence between himself and

       [Mother].” Id. at 13.


[17]   Father contends that IDCS failed to establish that the condition of domestic

       violence had not been remedied at the time of the fact-finding hearing. We

       disagree. Even “a single incident of domestic violence in a child’s presence

       may support a CHINS finding, and it need not necessarily be repetitive.” M.P.

       v. Ind. Dep’t of Child Serv. (Matter of D.P.), 72 N.E.3d 976, 984 (Ind. Ct. App.

       2017). But here there was evidence of a pattern of domestic violence in the

       presence of Child and her half-sibling. Such a pattern may support a CHINS

       finding, even if there have been no further reports of domestic violence at the

       time of the fact-finding hearing. M.W.B. v. Ind. Dep’t of Child Serv. (In re K.B.),


       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1394 | November 29, 2018   Page 14 of 16
       24 N.E.3d 997, 1003-04 (Ind. Ct. App. 2015) (noting that, although there were

       no further reported cases of violence when the trial court issued its CHINS

       finding, that “by no means proves that … the domestic violence problems had

       been solved”). Here, while Father does have a protective order in place, the

       evidence established that he has shown a willingness in the past to ignore the

       requirements of such an order and to ignore the Informal Adjustment

       requirement that he immediately inform IDCS if Mother attempted to contact

       him. Father has also exhibited an unwillingness to take responsibility for his

       part in the domestic violence, insisting at the Cornerstone evaluation that he

       had “never been violent in his entire life.” Ex. 8 at 125. Further, at the time of

       the fact-finding hearing, Father had not yet attended domestic violence

       prevention services. Thus, it is reasonable to infer that the fact that no further

       domestic violence had taken place in front of the children at the time of the

       CHINS hearing was only due to the fact that the children had been removed

       from Mother’s and Father’s care.



                                               Conclusion
[18]   The evidence supported the finding that Child was a CHINS. Specifically, the

       evidence of the parents’ pattern of engaging in domestic violence in the

       presence of Child (and her half-sibling), leading to physical and/or emotional

       injury to Child, and Father’s unwillingness to enforce a protective order against

       Mother, supported the conclusions that Father’s actions endangered Child and




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1394 | November 29, 2018   Page 15 of 16
       that her need for supervision and care were not being met and were unlikely to

       be met in the future without the coercive intervention of the court.


[19]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JC-1394 | November 29, 2018   Page 16 of 16
