MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 28 2019, 9:12 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT, T.L. ATTORNEYS FOR APPELLEE Don R. Hostetler Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana ATTORNEY FOR APPELLANT, J.L. Abigail R. Recker Deputy Attorney General Danielle L. Gregory Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In Re the Matter of: February 28, 2019 J.L. and Jo.L., Court of Appeals Case No. Children in Need of Services; 18A-JC-1843 T.L. (Father) and J.L. (Mother), Appeal from the Marion Superior Court Appellants-Respondents, The Honorable Marilyn Moores, v. Judge Trial Court Cause Nos. The Indiana Department of 49D09-1711-JC-3663 49D09-1711-JC-3664 Child Services, Appellee-Plaintiff
and
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1843 | February 28, 2019 Page 1 of 9 Child Advocates, Inc. Appellee-Guardian ad Litem
Pyle, Judge.
Statement of the Case [1] J.L. (“Mother”) and T.L. (“Father”) each appeal the trial court’s order
adjudicating J.L. and Jo.L. to be Children in Need of Services (“CHINS”).
Both parents argue that there is insufficient evidence to support the
adjudication. Concluding that the Indiana Department of Child Services
(“DCS”) presented sufficient evidence to support the CHINS adjudication, we
affirm the trial court.
[2] We affirm.
Issue Whether there is sufficient evidence to support the CHINS adjudication.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1843 | February 28, 2019 Page 2 of 9 Facts [1] The evidence most favorable to the CHINS adjudication reveals that Mother
and Father are the parents of two daughters, J.L., who was born in April 2008,
and Jo.L., who was born in September 2013. In December 2014, Father
dragged Mother down the stairs, choked her, and repeatedly pushed her against
the floor and the wall. In April 2015, Mother admitted that her daughters were
CHINS because the family needed assistance in providing the children with a
home free from domestic violence, and Father waived his right to a factfinding
hearing. Thereafter, the trial court adjudicated both children to be CHINS.
Mother completed domestic violence services and home-based therapy.
Although Father completed no services, the “case was closed successfully in
January of 2016.” (Tr. at 110). At the time, Guardian Ad Litem Jill English-
Cheatham was concerned that Father had not addressed the initial reason for
the children’s removal.
[2] In October 2017, Indianapolis Metropolitan Police Department officers were
dispatched to Mother and Father’s residence for a disturbance that involved
Mother, Father, Mother’s parents, (“Maternal Grandmother” and “Maternal
Grandfather”), and Mother’s brother (“Uncle”). Specifically, Mother had
telephoned Maternal Grandmother, who had heard Mother and Father arguing
before the phone went dead. Maternal Grandmother, Maternal Grandfather,
and Uncle drove to Mother’s home to check on her and the children. When
they arrived at Mother’s home, Mother’s family heard Mother yelling, “get off
of me.” (Tr. 72). When the family went to the front door, Father opened it,
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1843 | February 28, 2019 Page 3 of 9 told the family that they were not welcome there, and grabbed Maternal
Grandmother’s arm. J.L., who was standing behind Father, told him to let go
of her grandmother’s arm.
[3] Maternal Grandmother entered the home and was attempting to calm down
J.L, when Mother came downstairs. Mother appeared dazed and her lips were
discolored. Maternal Grandfather called the police, and Maternal
Grandmother suggested removing the children from the house. Father
responded that no one was taking his children and held his hand on J.L. to
prevent her from leaving. Uncle placed himself between Father and J.L. so that
she could leave the house, and Father swung his arm at Uncle.
[4] When police officers arrived at the scene, Mother told one of the officers that
Father had placed her in a bear hug, held her down, and squeezed her. J.L. and
Jo.L. had witnessed the incident and were crying. Mother was also crying and
told the patrolman that she was did not want Father to go to jail because she
did not want DCS to remove her children.
[5] The children were removed from the home, and Father was charged with three
counts of Level 6 felony domestic battery.1 DCS filed a petition alleging that
J.L. and Jo.L. were CHINS because Mother and Father had failed to provide
their daughters with a “safe, stable, and appropriate living environment free
from domestic violence.” (Mother’s App. at 42). The petition further alleged
1 The State subsequently dismissed the three charges.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1843 | February 28, 2019 Page 4 of 9 that Mother and Father had “an extensive history of domestic violence, and
they were recently involved in a physical altercation in October 2017 in the
presence of the children.” (Mother’s App. at 42).
[6] The trial court held a factfinding hearing on the CHINS petition (“CHINS
hearing”) in February 2018. The testimony at the hearing revealed that DCS
Family Case Manager Emma Derheimer had initially been assigned to the case.
However, shortly thereafter she had asked to be removed from the case because
she felt that Father was aggressive and intimidating when she attempted to
speak with him. DCS Family Case Manager Victor Benavides was assigned to
the case in December 2017. He testified that he had recommended that both
parents participate in domestic violence services. However, both parents
refused his recommendation. Father testified that he had refused services
because he had not touched his wife. According to Father, he was not “going
to take something for something that [he] didn’t do.” (Tr. at 215). Mother
denied that Father had ever been physically violent with her.
[7] Following the factfinding hearing, the trial court issued an order that provides
in, relevant part, as follows:
39. [J.L.] and [Jo.L.] are children in need of services because their parents’ continued domestic violence in their presence seriously endangers both their physical and mental conditions and the children need care and treatment which the children are not receiving and are unlikely to be provided without the coercive intervention of the Court.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1843 | February 28, 2019 Page 5 of 9 (App. 158).
[8] Mother and Father each appeal the trial court’s adjudication that their
daughters are CHINS.
Decision [9] Both parents argue that there is insufficient evidence to support the CHINS
adjudication. When determining whether there is sufficient evidence to support
a CHINS determination, we consider only the evidence most favorable to the
judgment and the reasonable inferences to be drawn therefrom. In re S.D., 2
N.E.3d 1283, 1287 (Ind. 2014). This Court will not reweigh the evidence or
reassess the credibility of the witnesses. Id. at 1286.
[10] Where, as here, a juvenile court’s order contains specific findings of fact and
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 28 2019, 9:12 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT, T.L. ATTORNEYS FOR APPELLEE Don R. Hostetler Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana ATTORNEY FOR APPELLANT, J.L. Abigail R. Recker Deputy Attorney General Danielle L. Gregory Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In Re the Matter of: February 28, 2019 J.L. and Jo.L., Court of Appeals Case No. Children in Need of Services; 18A-JC-1843 T.L. (Father) and J.L. (Mother), Appeal from the Marion Superior Court Appellants-Respondents, The Honorable Marilyn Moores, v. Judge Trial Court Cause Nos. The Indiana Department of 49D09-1711-JC-3663 49D09-1711-JC-3664 Child Services, Appellee-Plaintiff
and
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1843 | February 28, 2019 Page 1 of 9 Child Advocates, Inc. Appellee-Guardian ad Litem
Pyle, Judge.
Statement of the Case [1] J.L. (“Mother”) and T.L. (“Father”) each appeal the trial court’s order
adjudicating J.L. and Jo.L. to be Children in Need of Services (“CHINS”).
Both parents argue that there is insufficient evidence to support the
adjudication. Concluding that the Indiana Department of Child Services
(“DCS”) presented sufficient evidence to support the CHINS adjudication, we
affirm the trial court.
[2] We affirm.
Issue Whether there is sufficient evidence to support the CHINS adjudication.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1843 | February 28, 2019 Page 2 of 9 Facts [1] The evidence most favorable to the CHINS adjudication reveals that Mother
and Father are the parents of two daughters, J.L., who was born in April 2008,
and Jo.L., who was born in September 2013. In December 2014, Father
dragged Mother down the stairs, choked her, and repeatedly pushed her against
the floor and the wall. In April 2015, Mother admitted that her daughters were
CHINS because the family needed assistance in providing the children with a
home free from domestic violence, and Father waived his right to a factfinding
hearing. Thereafter, the trial court adjudicated both children to be CHINS.
Mother completed domestic violence services and home-based therapy.
Although Father completed no services, the “case was closed successfully in
January of 2016.” (Tr. at 110). At the time, Guardian Ad Litem Jill English-
Cheatham was concerned that Father had not addressed the initial reason for
the children’s removal.
[2] In October 2017, Indianapolis Metropolitan Police Department officers were
dispatched to Mother and Father’s residence for a disturbance that involved
Mother, Father, Mother’s parents, (“Maternal Grandmother” and “Maternal
Grandfather”), and Mother’s brother (“Uncle”). Specifically, Mother had
telephoned Maternal Grandmother, who had heard Mother and Father arguing
before the phone went dead. Maternal Grandmother, Maternal Grandfather,
and Uncle drove to Mother’s home to check on her and the children. When
they arrived at Mother’s home, Mother’s family heard Mother yelling, “get off
of me.” (Tr. 72). When the family went to the front door, Father opened it,
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1843 | February 28, 2019 Page 3 of 9 told the family that they were not welcome there, and grabbed Maternal
Grandmother’s arm. J.L., who was standing behind Father, told him to let go
of her grandmother’s arm.
[3] Maternal Grandmother entered the home and was attempting to calm down
J.L, when Mother came downstairs. Mother appeared dazed and her lips were
discolored. Maternal Grandfather called the police, and Maternal
Grandmother suggested removing the children from the house. Father
responded that no one was taking his children and held his hand on J.L. to
prevent her from leaving. Uncle placed himself between Father and J.L. so that
she could leave the house, and Father swung his arm at Uncle.
[4] When police officers arrived at the scene, Mother told one of the officers that
Father had placed her in a bear hug, held her down, and squeezed her. J.L. and
Jo.L. had witnessed the incident and were crying. Mother was also crying and
told the patrolman that she was did not want Father to go to jail because she
did not want DCS to remove her children.
[5] The children were removed from the home, and Father was charged with three
counts of Level 6 felony domestic battery.1 DCS filed a petition alleging that
J.L. and Jo.L. were CHINS because Mother and Father had failed to provide
their daughters with a “safe, stable, and appropriate living environment free
from domestic violence.” (Mother’s App. at 42). The petition further alleged
1 The State subsequently dismissed the three charges.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1843 | February 28, 2019 Page 4 of 9 that Mother and Father had “an extensive history of domestic violence, and
they were recently involved in a physical altercation in October 2017 in the
presence of the children.” (Mother’s App. at 42).
[6] The trial court held a factfinding hearing on the CHINS petition (“CHINS
hearing”) in February 2018. The testimony at the hearing revealed that DCS
Family Case Manager Emma Derheimer had initially been assigned to the case.
However, shortly thereafter she had asked to be removed from the case because
she felt that Father was aggressive and intimidating when she attempted to
speak with him. DCS Family Case Manager Victor Benavides was assigned to
the case in December 2017. He testified that he had recommended that both
parents participate in domestic violence services. However, both parents
refused his recommendation. Father testified that he had refused services
because he had not touched his wife. According to Father, he was not “going
to take something for something that [he] didn’t do.” (Tr. at 215). Mother
denied that Father had ever been physically violent with her.
[7] Following the factfinding hearing, the trial court issued an order that provides
in, relevant part, as follows:
39. [J.L.] and [Jo.L.] are children in need of services because their parents’ continued domestic violence in their presence seriously endangers both their physical and mental conditions and the children need care and treatment which the children are not receiving and are unlikely to be provided without the coercive intervention of the Court.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1843 | February 28, 2019 Page 5 of 9 (App. 158).
[8] Mother and Father each appeal the trial court’s adjudication that their
daughters are CHINS.
Decision [9] Both parents argue that there is insufficient evidence to support the CHINS
adjudication. When determining whether there is sufficient evidence to support
a CHINS determination, we consider only the evidence most favorable to the
judgment and the reasonable inferences to be drawn therefrom. In re S.D., 2
N.E.3d 1283, 1287 (Ind. 2014). This Court will not reweigh the evidence or
reassess the credibility of the witnesses. Id. at 1286.
[10] Where, as here, a juvenile court’s order contains specific findings of fact and
conclusions of law, we engage in a two-tiered review. In re A.G., 6 N.E.3d 952,
957 (Ind. Ct. App. 2014). First, we determine whether the evidence supports
the findings, and then, we determine whether the findings support the
judgment. Id. Findings are clearly erroneous when there are no facts or
inferences in the evidence to support them. Id. A judgment is clearly erroneous
if the findings do not support the juvenile court’s conclusions or the conclusions
do not support the resulting judgment. Id.
[11] We further note that, as a general rule, appellate courts grant latitude and
deference to trial courts in family law matters. Matter of D.P., 72 N.E.3d 976,
980 (Ind. Ct. App. 2017). “This deference recognizes a trial court’s unique
ability to see the witnesses, observe their demeanor, and scrutinize their Court of Appeals of Indiana | Memorandum Decision 18A-JC-1843 | February 28, 2019 Page 6 of 9 testimony, as opposed to this court’s only being able to review a cold transcript
of the record.” Id.
[12] As a preliminary matter, we note that neither parent challenges the trial court’s
findings. As a result, they have waived any argument relating to whether these
unchallenged findings are clearly erroneous. See McMaster v. McMaster, 681
N.E.2d 744, 747 (Ind. Ct. App. 1997) (explaining that unchallenged trial court
findings are accepted as true). We now turn to the substantive issue in this
case.
[13] A CHINS proceeding is a civil action. In re N.E., 919 N.E.2d 102, 105 (Ind.
2010). Therefore, DCS must prove by a preponderance of the evidence that the
child is a CHINS as defined by the juvenile code. Id. INDIANA CODE § 31-34-
1-1 provides that a child is a CHINS 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 the 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.
[14] A CHINS adjudication focuses on the child’s condition rather than the parent’s
culpability. In re N.E., 919 N.E.2d at 105. The purpose of a CHINS
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1843 | February 28, 2019 Page 7 of 9 adjudication is to provide proper services for the benefit of the child, not to
punish the parent. Id. at 106. A CHINS adjudication in no way challenges the
general competency of parents to continue relationships with their children. Id.
at 105.
[15] We further note that it is well-settled that a child’s exposure to domestic
violence can support a CHINS adjudication. In re D.P., 72 N.E.3d 976, 984
(Ind. Ct. App. 2017). Additionally, a single incident of domestic violence in a
child’s presence may support a CHINS finding. Id.
[16] Here, both parents argue that there is insufficient evidence to support the
CHINS adjudication. Specifically, they contend that no domestic violence
occurred. They further contend that even if Father hit Mother, there is no
evidence that the assault occurred in the children’s presence. However, our
review of the testimony at the factfinding hearing reveals that Mother and
Father have a history of domestic violence, and that one instance led to a
CHINS adjudication in 2015. In addition, the evidence at the hearing also
reveals that, in October 2017, Father physically assaulted Mother in the
presence of the children, which resulted in this CHINS adjudication. Parents’
arguments that no domestic violence occurred is an invitation for us to reweigh
the evidence and reassess witness credibility. This we cannot and will not do.
In re S.D., 2 N.E.3d a 1286. There is sufficient evidence to support the CHINS
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1843 | February 28, 2019 Page 8 of 9 determination.2 The decision of the trial court is not clearly erroneous. See In re
K.D., 962 N.E.2d 1249, 1253 (Ind. 2012).
[17] Affirmed.
Najam, J., and Altice, J., concur.
2 Father’s reliance on In re S.D., 2 N.E.3d 1283 (Ind. 2014), is also misplaced. There, the Indiana Supreme Court concluded that there was insufficient evidence that the final training that Mother needed to complete was unlikely to be provided or accepted without the coercive intervention of the court. Id. at 1290. The Supreme Court further explained that where that coercion is not necessary, the State may not intrude into a family’s life and therefore reversed that trial court’s judgment that S.D. was a CHINS. Id. at 1291. Here, however, Mother and Father both refused to participate in domestic violence services. The coercive intervention of the court was therefore necessary.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1843 | February 28, 2019 Page 9 of 9