MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  FILED
court except for the purpose of establishing                          May 31 2017, 9:39 am
the defense of res judicata, collateral                                    CLERK
estoppel, or the law of the case.                                      Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jeremy K. Nix                                            Curtis T. Hill, Jr.
Matheny, Hahn, Denman & Nix, L.L.P.                      Attorney General of Indiana
Huntington, Indiana
                                                         Abigail R. Recker
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of: La.H., Le.H.,                          May 31, 2017
Lo.H., Ma.H., S.W., W.H., and                            Court of Appeals Case No.
Me.H. (Minor Children),                                  90A02-1609-JC-2135
Children in Need of Services                             Appeal from the Wells Circuit
and                                                      Court
                                                         The Honorable Kenton W.
M.H. (Father),
                                                         Kiracofe, Judge
Appellants-Respondents,                                  Trial Court Cause Nos.
                                                         90C01-1603-JC-15
        v.
                                                         90C01-1603-JC-16
                                                         90C01-1603-JC-17
The Indiana Department of                                90C01-1603-JC-18
Child Services,                                          90C01-1603-JC-20
                                                         90C01-1603-JC-21
Appellee-Petitioner.                                     90C01-1603-JC-22



Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 90A02-1609-JC-2135 | May 31, 2017            Page 1 of 11
                                     Case Summary and Issue
[1]   M.H. (“Father”) appeals the juvenile court’s adjudication of his seven children

      (“Children”) as children in need of services (“CHINS”). Father raises four

      issues on appeal, which we consolidate and restate as a single issue: whether the

      juvenile court’s CHINS determination is clearly erroneous. Concluding the

      juvenile court’s CHINS determination is not clearly erroneous, we affirm.



                                Facts and Procedural History
[2]   Father and R.H. (“Mother”)1 are the parents of six children, ten-year-old

      Ma.H., eight-year-old Le.H, seven-year-old Lo.H., five-year-old W.H., three-

      year-old La.H., and one-year-old Me.H. Mother also has two children from a

      prior relationship, eighteen-year-old R.W. and fifteen-year-old S.W. S.W.

      requires the assistance of a wheelchair and is unable to verbally communicate

      due to cerebral palsy.


[3]   On March 28, 2016, the Indiana Department of Child Services (“DCS”)

      received a report alleging Father had sexually abused his stepdaughter, R.W.,

      multiple times throughout her childhood. One week prior to the DCS receiving

      that report, then seventeen-year-old R.W. left home without permission and




      1
          Mother does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 90A02-1609-JC-2135 | May 31, 2017   Page 2 of 11
      began residing with her maternal aunt and uncle. R.W. turned eighteen on the

      same day the DCS began its investigation.


[4]   In response to the report and allegations, Wendy Garrett, a DCS Family Case

      Manager, visited Mother and Father’s home. Father answered the door but

      refused to permit Garrett to enter the home. Mother and Father refused to

      cooperate with the investigation at that time.


[5]   Following an interview with R.W. concerning her allegations of sexual abuse,

      the DCS removed the Children from the home and placed them with their

      maternal aunt and uncle. While removing the Children, Garrett observed the

      Children had “incredibly poor hygiene” and noted the Children’s hair was

      “matted.” Transcript, Volume II at 16. Garrett further observed Me.H.’s

      diaper was “literally falling off, leaking.” Id. As to the condition of the home,

      Garrett described it as “deplorable” and “unsanitary.” Id. Garrett observed

      food, debris, and trash littering the floor of the home, a cluttered kitchen filled

      with dirty dishes, and piles of soiled clothing throughout the home. Garrett

      also noted the home did not appear to have a shower or access to water except

      through a hose brought in from outside the home. There also appeared to be

      structural issues with the home with portions of the ceiling collapsing over the

      Children’s sleeping space. Garrett was not permitted to view the upstairs area

      because it “wasn’t anything that had been worked on.” Id. at 19.


[6]   On March 31, 2016, the DCS filed verified petitions alleging each child to be a

      CHINS. The DCS later moved to dismiss the CHINS petition as to R.W.


      Court of Appeals of Indiana | Memorandum Decision 90A02-1609-JC-2135 | May 31, 2017   Page 3 of 11
      because she reached the age of eighteen. Mother and Father denied the

      allegations contained in the verified petitions.


[7]   On June 10, 2016, the juvenile court held a fact-finding hearing at which R.W.

      testified concerning her allegations of sexual abuse. R.W. testified the sexual

      abuse began when she was a young girl. During one instance, R.W. stated

      Father called her into the bedroom of their home. When she entered the room,

      he pulled her on top of him and put his hands down her pants. R.W. did not

      remember how old she was when this incident occurred. During another

      instance when she was about twelve years old, R.W. awoke on the living room

      couch and Father was on top of her. R.W. stated Father’s penis touched her

      vagina. Father told R.W. not to tell anyone or he would do it again. R.W.

      attempted to speak to Mother about the incident but was too embarrassed to do

      so. When R.W. was about thirteen years old, Father told R.W. to take water to

      their horses in the barn and insisted on coming with her. R.W. stated she knew

      what Father was going to do. In the barn, Father ordered R.W. to lay on a bale

      of hay and pulled his pants down. Father then inserted his fingers into R.W.’s

      vagina. Father also inserted his penis into her vagina. R.W. stated the sexual

      abuse stopped when she was about fifteen or sixteen years old.


[8]   R.W. testified she did not believe Father has abused any of her siblings,

      although she worried it may happen. She also stated that when she lived in the

      home, she was responsible for helping Mother and Father with the other

      Children, cleaning the house, and feeding and bathing S.W. R.W. also thought

      Father punished S.W. with unnecessary force. Occasionally, S.W. would cry

      Court of Appeals of Indiana | Memorandum Decision 90A02-1609-JC-2135 | May 31, 2017   Page 4 of 11
      uncontrollably and the family struggled to calm her down. Father used to

      spank her over and over in an attempt to make her stop, but she would not.

      Mother would cry and tell Father “she’s not going to stop crying if [you] just

      keep[] beating her.” Id. at 42.


[9]   On June 11, 2016, the juvenile court issued its order which included its findings

      of fact and conclusions thereon. The juvenile court found R.W.’s testimony

      and allegations to be true and adjudicated all seven Children as CHINS.2 In

      addition to the sexual abuse of R.W., the juvenile court also found the Children

      to be CHINS due to the poor condition of the home, the fact Father remained

      in the home after R.W.’s allegations came to light, and the fact R.W., who

      provided care and supervision for the Children, was no longer living in the

      home. The juvenile court ordered the Children to remain in relative placement.

      On August 18, 2016, the juvenile court held a dispositional hearing at which it

      adopted the DCS’ recommendations to have Mother and Father participate in

      services including home based counseling, a parental assessment, random drug

      screens, and a psychological evaluation. Father was also ordered to complete a

      substance abuse assessment and sex offender treatment program. Father now

      appeals. Additional facts will be added as necessary.




      2
          R.W. was not adjudicated as a CHINS.


      Court of Appeals of Indiana | Memorandum Decision 90A02-1609-JC-2135 | May 31, 2017   Page 5 of 11
                                  Discussion and Decision
                                      I. Standard of Review
[10]   When reviewing a juvenile court’s CHINS determination, we neither reweigh

       the evidence nor reassess witness credibility. In re K.D., 962 N.E.2d 1249, 1253

       (Ind. 2012). We consider only the evidence that supports the juvenile court’s

       decision and reasonable inferences drawn therefrom. Id.


[11]   Where, as here, the juvenile court enters findings of fact and conclusions sua

       sponte following the fact-finding hearing, we apply a two-tiered standard of

       review to the issues covered by the findings: (1) we determine whether the

       evidence supports the findings, and (2) whether the findings support the

       judgment. In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). We will reverse only

       upon a showing the court’s decision was clearly erroneous. In re K.D., 962

       N.E.2d at 1253. A finding of fact is clearly erroneous if the record lacks

       evidence, or reasonable inferences from the evidence, to support it. In re

       Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App. 2009), trans. denied. The

       judgment is clearly erroneous if we are left with a “definite and firm conviction

       that a mistake has been made.” In re S.L., 997 N.E.2d 1114, 1123 (Ind. Ct.

       App. 2013).




       Court of Appeals of Indiana | Memorandum Decision 90A02-1609-JC-2135 | May 31, 2017   Page 6 of 11
                                      II. CHINS Determination
[12]   Father contends the juvenile court’s judgment adjudicating the Children as

       CHINS is clearly erroneous. The juvenile court adjudicated the Children as

       CHINS under Indiana Code section 31-34-1-1,3 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

                                   (B) is unlikely to be provided or accepted without
                                   the coercive intervention of the court.


       In other words, the statute requires the State to prove three basic elements: (1)

       the parent’s actions or inactions have seriously endangered the children, (2) the

       children’s needs are unmet, and (3) the children’s needs are unlikely to be met

       without State intervention. In re S.D., 2 N.E.3d at 1287. Because a CHINS




       3
         The juvenile court also adjudicated S.W. a CHINS under Indiana Code section 31-34-1-2, which states, “[a]
       child is a child in need of services if before the child becomes eighteen (18) years of age 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 and the child needs care, treatment, or rehabilitation that the child is not receiving and is unlikely
       to be provided or accepted without the coercive intervention of the court.”

       Court of Appeals of Indiana | Memorandum Decision 90A02-1609-JC-2135 | May 31, 2017                   Page 7 of 11
       proceeding is a civil proceeding, the State must prove the child is a CHINS by a

       preponderance of the evidence. In re K.D., 962 N.E.2d at 1253.


[13]   Father first argues the juvenile court’s determination the Children are CHINS

       due to the long-term sexual abuse of R.W. is clearly erroneous. Father cites to

       In re D.H., 859 N.E.2d 737 (Ind. Ct. App. 2007). There, seventeen-year-old

       S.L. alleged she had been molested by her stepfather for several years as a

       young girl. The DCS removed the other five children from the home and filed

       verified petitions alleging the children to be CHINS. In its fact-finding order,

       the juvenile court found S.L.’s testimony to be credible, but specifically declined

       to find the allegations to be true or not true. Based on its findings, the juvenile

       court concluded that “if the allegations were true, the Children would be

       endangered.” Id. at 744. On appeal, we reversed the juvenile court’s decision

       as clearly erroneous, stating, “to permit the Children to be declared CHINS

       based upon speculation that the Children would be endangered if the

       allegations regarding S.L. were true would contravene the CHINS statutes.” Id.


[14]   Father argues that, similar to In re D.H., the juvenile court’s decision was based

       on speculation of sexual abuse.4 Father is incorrect and In re D.H. is of no




       4
         Father alleges “the [juvenile] court found R.W. credible despite the fact that her testimony did not conform
       to the CHINS petitions.” Corrected Brief of Appellant at 15. Although the juvenile court did not find the
       allegations in the CHINS petitions to be true in their entirety, Father’s contention R.W.’s testimony did not
       conform to the CHINS petitions is simply not accurate. In addition, Father also points to the juvenile court’s
       findings regarding R.W.’s refusal or inability to discuss the abuse with Mother and a prior interview with the
       DCS in which she denied any sexual abuse had occurred. We interpret this as a request to reweigh the
       evidence, which we will not do. In re K.D., 962 N.E.2d at 1253.

       Court of Appeals of Indiana | Memorandum Decision 90A02-1609-JC-2135 | May 31, 2017               Page 8 of 11
       benefit to him in this case. Unlike in In re D.H., the juvenile court specifically

       found R.W.’s testimony to be credible and true. The juvenile court’s finding of

       fact states, “The Court finds that the allegations contained in the Verified

       Petitions Alleging Child in Need of Services . . . as modified consistent with the

       testimony and resultant findings contained herein as to the sexual abuse of

       [R.W.] are true.” Appendix of Appellant, Volume II at 169. Thus, the juvenile

       court’s determination was not based on speculation, but upon testimony from

       R.W. which it found to be true. We further note the CHINS statutes do 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). And although R.W. stated she did not

       believe Father has sexually abused any of the other Children, she did worry for

       their safety and thought it could occur again. Given this evidence and the

       juvenile court’s findings, we cannot say its adjudication of the Children as

       CHINS is clearly erroneous.5


[15]   Father also contends the juvenile court’s judgment regarding coercive

       intervention of the court is clearly erroneous. Here, the juvenile court

       determined coercive intervention was necessary because Mother and Father

       remain living together, they did not comply with the DCS’ investigation, and




       5
        Even assuming the juvenile court’s judgment regarding the sexual abuse allegations is clearly erroneous, we
       note Father does not challenge the juvenile court’s determination the Children’s physical or mental
       conditions were seriously impaired or seriously endangered due to the poor condition of the home.

       Court of Appeals of Indiana | Memorandum Decision 90A02-1609-JC-2135 | May 31, 2017             Page 9 of 11
       they refused to acknowledge the Children’s poor living conditions or the sexual

       abuse of R.W.


[16]   Our supreme court has observed that the “coercive intervention” 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.” In re

       S.D., 2 N.E.3d at 1287 (internal quotations omitted). When determining

       CHINS status under Indiana Code section 31-34-1-1, particularly the “coercive

       intervention” element, courts “should consider the family’s condition not just

       when the case was filed, but also when it is heard.” In re D.J., 68 N.E.3d 574,

       580 (Ind. 2017) (citation omitted).


[17]   The juvenile court’s CHINS order included factual findings supporting its

       conclusion that coercive intervention was necessary at the time the DCS

       received the initial report and allegations. At the time of the fact-finding

       hearing, Mother and Father had only begun to participate in services. Those

       services included homemaker and parent-aid services to both Mother and

       Father. DCS Family Case Manager Alyssa Justice stated both parents were

       complying with the services offered. However, Justice also stated Mother and

       Father had only recently started participating in services and she would not feel

       comfortable with the Children returning to Mother and Father’s home at that

       time, given the severity of the allegations and the unimproved condition of the

       home. Further, Justice stated there had been no acknowledgment from either



       Court of Appeals of Indiana | Memorandum Decision 90A02-1609-JC-2135 | May 31, 2017   Page 10 of 11
       parent of the DCS’ allegations. Accordingly, the juvenile court’s determination

       that coercive intervention of the court was necessary is not clearly erroneous.6



                                                 Conclusion
[18]   The juvenile court’s CHINS order is not clearly erroneous. Accordingly, the

       judgment of the juvenile court is affirmed.


[19]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       6
         Because we affirm the juvenile court’s adjudication of the Children as CHINS under Indiana Code section
       31-34-1-1, and S.W. is included in that adjudication, we do not separately address Father’s argument the
       juvenile court’s adjudication of S.W. as a CHINS under Indiana Code section 31-34-1-2 is clearly erroneous.

       Court of Appeals of Indiana | Memorandum Decision 90A02-1609-JC-2135 | May 31, 2017           Page 11 of 11
