MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Oct 12 2018, 7:53 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Anna Onaitis Holden Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of: October 12, 2018
Aa.P., T.B., Aj.B., K.B., At.P., Court of Appeals Case No. 18A-JC-1168 and Az.B., Children Alleged to be in Need of Services; Appeal from the Marion Superior Court S.B. (Mother), The Honorable Gary Chavers, Appellant-Respondent, Judge Pro Tempore
v. The Honorable Marcia J. Ferree, Magistrate
Indiana Department of Child Trial Court Cause Nos. 49D09-1712-JC-4012 Services, 49D09-1712-JC-4013 Appellee-Petitioner, 49D09-1712-JC-4014 49D09-1712-JC-4015 and 49D09-1712-JC-4016 49D09-1712-JC-4017
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1168 | October 12, 2018 Page 1 of 7 Child Advocates, Inc.,
Co-Appellee.
Najam, Judge.
Statement of the Case [1] S.B. (“Mother”) appeals the trial court’s adjudication of her minor children,
Aa.P., T.B., Aj.B., K.B., At.P., and Az.B. (collectively “the Children”), as
children in need of services (“CHINS”). Mother raises one issue for our review,
namely, whether the trial court erred when it adjudicated the Children to be
CHINS.1
[2] We affirm.
Facts and Procedural History [3] Mother has six children: Aa.P., born October 28, 2006; T.B., born October 19,
2009; Aj.B., born September 5, 2011; K.B., born July 8, 2015; At.P, born
February 25, 2016; and Az.B., born April 2, 2017. D.C. is the biological father
1 D.C. and T.W., the fathers of Az.B. and T.B., respectively, were respondents below but do not participate in this appeal. A.P. is the father of the other four children and does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1168 | October 12, 2018 Page 2 of 7 of Az.B. On November 27, 2017, Officer Dominique Clark with the
Indianapolis Metropolitan Police Department “responded to a domestic call
along with a shots fired run” at Mother’s house in Indianapolis. Appellant’s
App. Vol. II at 194. When Officer Clark arrived, D.C. was not home, but
Mother told Officer Clark that “there had been an altercation about [D.C.]’s
cell phone” where D.C. “got out a gun, chased [Aa.P.] up the stairs and said he
would shoot out the televisions and blow out the windows.” Id. Mother then
told Officer Clark that D.C. “went outside and fired the gun.” Id. Mother also
stated that D.C. “choked her until she couldn’t breathe and she struggled and
fought to get him off of her.” Id. A few hours later, when D.C. returned to
Mother’s home, Mother called the police, and Officer Clark returned and
arrested D.C.
[4] On December 5, Jourdan Taylor, a Family Case Manager (“FCM”) with the
Indiana Department of Child Services (“DCS”), went to Mother’s house to
investigate the safety and well-being of the Children given the incident on
November 27 that led to D.C.’s arrest. Mother told Taylor that Mother and
D.C. had only gotten into “a small disagreement” on that date, “that there was
not a gun involved, and that none of the children were present at the time of the
altercation.” Id. at 195. Mother told Taylor that Mother would not get an
order of protection against D.C. “because there was not an altercation and that
she would not be pursuing any legal action” against D.C. Id. Mother admitted
to Taylor that Mother had previously been the victim of domestic violence
committed by A.P.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1168 | October 12, 2018 Page 3 of 7 [5] On December 7, DCS filed petitions alleging that the Children were CHINS
because of the incident on November 27, and the trial court granted wardship of
the Children to DCS. Following a factfinding hearing on March 22, 2018, the
trial court concluded that the Children were CHINS. In particular, the court
found that each of the Children’s physical or mental condition was seriously
impaired or endangered as a result of Mother’s inability, refusal, and neglect to
provide the Children with a safe and stable home environment free from
domestic violence. The court found further that (1) the Children need a safe
and stable home environment that is free from domestic violence, which they
are unlikely to receive without the coercive intervention of the Court; and (2)
the Children need therapy which they are unlikely to receive without the
coercive intervention of the court. This appeal ensued.
Discussion and Decision [6] Mother contends that the trial court erred when it adjudicated the Children to
be CHINS. Our Supreme Court recently set out our standard of review:
When reviewing a trial court’s CHINS determination, we do not reweigh evidence or judge witness credibility. In re S.D., 2 N.E.3d 1283, 1286 (Ind. 2014). “Instead, we consider only the evidence that supports the trial court’s decision and [the] reasonable inferences drawn therefrom.” Id. at 1287 (citation, brackets, and internal quotation marks omitted). When a trial court supplements a CHINS judgment with findings of fact and conclusions law, we apply a two-tiered standard of review. We consider, first, “whether the evidence supports the findings” and, second, “whether the findings support the judgment.” Id. (citation omitted). We will reverse a CHINS determination only
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1168 | October 12, 2018 Page 4 of 7 if it was clearly erroneous. In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012). 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.” Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997) (citation omitted).
Gr. J. v. Ind. Dep’t. of Child Servs. (In re D.J.), 68 N.E.3d 574, 577-78 (Ind. 2017)
(alterations in original).
[7] Mother’s sole contention on appeal is that the trial court erred when it
concluded that the Children need therapy which they are unlikely to receive
without the coercive intervention of the court. In particular, Mother asserts that
two of the trial court’s findings in support of that conclusion are erroneous, and
she asserts, generally, that the evidence does not support that conclusion. But
Mother ignores the trial court’s conclusion that the Children were also CHINS
because they need a safe and stable home environment that is free from
domestic violence, which they are unlikely to receive without the coercive
intervention of the court. Thus, Mother has waived this issue for our review.
[8] DCS alleged that the Children were CHINS pursuant to Indiana Code Section
31-34-1-1 (2018), which provides that a child is a child in need of services if,
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Oct 12 2018, 7:53 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Anna Onaitis Holden Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of: October 12, 2018
Aa.P., T.B., Aj.B., K.B., At.P., Court of Appeals Case No. 18A-JC-1168 and Az.B., Children Alleged to be in Need of Services; Appeal from the Marion Superior Court S.B. (Mother), The Honorable Gary Chavers, Appellant-Respondent, Judge Pro Tempore
v. The Honorable Marcia J. Ferree, Magistrate
Indiana Department of Child Trial Court Cause Nos. 49D09-1712-JC-4012 Services, 49D09-1712-JC-4013 Appellee-Petitioner, 49D09-1712-JC-4014 49D09-1712-JC-4015 and 49D09-1712-JC-4016 49D09-1712-JC-4017
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1168 | October 12, 2018 Page 1 of 7 Child Advocates, Inc.,
Co-Appellee.
Najam, Judge.
Statement of the Case [1] S.B. (“Mother”) appeals the trial court’s adjudication of her minor children,
Aa.P., T.B., Aj.B., K.B., At.P., and Az.B. (collectively “the Children”), as
children in need of services (“CHINS”). Mother raises one issue for our review,
namely, whether the trial court erred when it adjudicated the Children to be
CHINS.1
[2] We affirm.
Facts and Procedural History [3] Mother has six children: Aa.P., born October 28, 2006; T.B., born October 19,
2009; Aj.B., born September 5, 2011; K.B., born July 8, 2015; At.P, born
February 25, 2016; and Az.B., born April 2, 2017. D.C. is the biological father
1 D.C. and T.W., the fathers of Az.B. and T.B., respectively, were respondents below but do not participate in this appeal. A.P. is the father of the other four children and does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1168 | October 12, 2018 Page 2 of 7 of Az.B. On November 27, 2017, Officer Dominique Clark with the
Indianapolis Metropolitan Police Department “responded to a domestic call
along with a shots fired run” at Mother’s house in Indianapolis. Appellant’s
App. Vol. II at 194. When Officer Clark arrived, D.C. was not home, but
Mother told Officer Clark that “there had been an altercation about [D.C.]’s
cell phone” where D.C. “got out a gun, chased [Aa.P.] up the stairs and said he
would shoot out the televisions and blow out the windows.” Id. Mother then
told Officer Clark that D.C. “went outside and fired the gun.” Id. Mother also
stated that D.C. “choked her until she couldn’t breathe and she struggled and
fought to get him off of her.” Id. A few hours later, when D.C. returned to
Mother’s home, Mother called the police, and Officer Clark returned and
arrested D.C.
[4] On December 5, Jourdan Taylor, a Family Case Manager (“FCM”) with the
Indiana Department of Child Services (“DCS”), went to Mother’s house to
investigate the safety and well-being of the Children given the incident on
November 27 that led to D.C.’s arrest. Mother told Taylor that Mother and
D.C. had only gotten into “a small disagreement” on that date, “that there was
not a gun involved, and that none of the children were present at the time of the
altercation.” Id. at 195. Mother told Taylor that Mother would not get an
order of protection against D.C. “because there was not an altercation and that
she would not be pursuing any legal action” against D.C. Id. Mother admitted
to Taylor that Mother had previously been the victim of domestic violence
committed by A.P.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1168 | October 12, 2018 Page 3 of 7 [5] On December 7, DCS filed petitions alleging that the Children were CHINS
because of the incident on November 27, and the trial court granted wardship of
the Children to DCS. Following a factfinding hearing on March 22, 2018, the
trial court concluded that the Children were CHINS. In particular, the court
found that each of the Children’s physical or mental condition was seriously
impaired or endangered as a result of Mother’s inability, refusal, and neglect to
provide the Children with a safe and stable home environment free from
domestic violence. The court found further that (1) the Children need a safe
and stable home environment that is free from domestic violence, which they
are unlikely to receive without the coercive intervention of the Court; and (2)
the Children need therapy which they are unlikely to receive without the
coercive intervention of the court. This appeal ensued.
Discussion and Decision [6] Mother contends that the trial court erred when it adjudicated the Children to
be CHINS. Our Supreme Court recently set out our standard of review:
When reviewing a trial court’s CHINS determination, we do not reweigh evidence or judge witness credibility. In re S.D., 2 N.E.3d 1283, 1286 (Ind. 2014). “Instead, we consider only the evidence that supports the trial court’s decision and [the] reasonable inferences drawn therefrom.” Id. at 1287 (citation, brackets, and internal quotation marks omitted). When a trial court supplements a CHINS judgment with findings of fact and conclusions law, we apply a two-tiered standard of review. We consider, first, “whether the evidence supports the findings” and, second, “whether the findings support the judgment.” Id. (citation omitted). We will reverse a CHINS determination only
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1168 | October 12, 2018 Page 4 of 7 if it was clearly erroneous. In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012). 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.” Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997) (citation omitted).
Gr. J. v. Ind. Dep’t. of Child Servs. (In re D.J.), 68 N.E.3d 574, 577-78 (Ind. 2017)
(alterations in original).
[7] Mother’s sole contention on appeal is that the trial court erred when it
concluded that the Children need therapy which they are unlikely to receive
without the coercive intervention of the court. In particular, Mother asserts that
two of the trial court’s findings in support of that conclusion are erroneous, and
she asserts, generally, that the evidence does not support that conclusion. But
Mother ignores the trial court’s conclusion that the Children were also CHINS
because they need a safe and stable home environment that is free from
domestic violence, which they are unlikely to receive without the coercive
intervention of the court. Thus, Mother has waived this issue for our review.
[8] DCS alleged that the Children were CHINS pursuant to Indiana Code Section
31-34-1-1 (2018), which provides that a child is a child in need of services if,
before the child becomes eighteen 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
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1168 | October 12, 2018 Page 5 of 7 without the coercive intervention of the court. Our Supreme Court has
interpreted this provision to require “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.” J.B. v. Ind. Dep’t. of Child. Serv. (In re S.D.), 2 N.E.3d
1283, 1287 (Ind. 2014).
[9] Again, the trial court made conclusions under both prongs of Indiana Code
Section 31-34-1-1, including two independent conclusions under the second
prong. On appeal, Mother only challenges one of the court’s two conclusions
relevant to the second prong of the statute. Mother does not dispute that the
evidence supports the trial court’s conclusions both that (1) the physical or
mental condition of each of the Children was seriously impaired or endangered
as a result of Mother’s inability, refusal, and neglect to provide the Children
with a safe and stable home environment free from domestic violence; and (2)
that the Children need a safe and stable home environment that is free from
domestic violence, which they are unlikely to receive without the coercive
intervention of the court. Indeed, the undisputed evidence shows that, after she
initially reported the November 27, 2017, incident to Officer Clark, Mother
then recanted and failed to show up for D.C.’s trial, which led to the State’s
dismissal of all charges. Mother did not seek an order of protection and
continued to regularly see D.C. throughout the CHINS proceedings.
[10] It is well settled that a child’s exposure to domestic violence can support a
CHINS adjudication under Indiana Code Section 31-34-1-1. See N.L. v. Ind.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1168 | October 12, 2018 Page 6 of 7 Dep’t. of Child. Serv. (In re N.E.), 919 N.E.2d 102, 106 (Ind. 2010); see also M.P.
v. Ind. Dep’t. of Child. Serv. (In re D.P.), 72 N.E.3d 976, 984 (Ind. Ct. App. 2017)
(“[A] single incident of domestic violence in a child’s presence may support a
CHINS finding, and [the violence] need not necessarily be repetitive.”). Here,
DCS presented testimony regarding Mother’s “history of choosing partners that
are physically aggressive to herself and the [C]hildren,” as well as the trauma
that domestic violence can cause in children, which “could affect them as they
grow[.]” Tr. at 55-56. In light of the evidence most favorable to the judgment,
we cannot say that the trial court’s adjudication of the Children as CHINS is
clearly erroneous. As such, we affirm the trial court’s judgment.
[11] Affirmed.
Crone, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-1168 | October 12, 2018 Page 7 of 7