MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 18 2017, 10:07 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Amy E. Karozos Curtis T. Hill, Jr. Greenwood, Indiana Attorney General of Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of Jay.C. and L.R., December 18, 2017 Jr. (Minor Children), Children in Court of Appeals Case No. Need of Services, 49A04-1706-JC-1401 and Appeal from the Marion Superior Court Jaq.C. (Mother), The Honorable Marilyn Moores, Appellant-Respondent, Judge
v. The Honorable Rosanne Ang, Magistrate Trial Court Cause Nos. The Indiana Department of 49D09-1608-JC-2765 Child Services, 49D09-1608-JC-2766 Appellee-Petitioner.
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1706-JC-1401 | December 18, 2017 Page 1 of 7 Case Summary [1] Jaq.C. (“Mother”) has two sons with L.R. (“Father”), Jay.C. and L.R., Jr.
(“Children”). After investigating a report involving domestic violence, the
Marion County Department of Child Services (“DCS”) filed a petition alleging
that Children were Children in Need of Services (“CHINS”). Following a
hearing, the juvenile court adjudicated Children CHINS, and Mother now
challenges that adjudication.1 She presents the sole issue of whether there is
sufficient evidence to support the CHINS adjudication.
[2] We affirm.
Facts and Procedural History [3] On July 14, 2016, DCS received a report alleging that Father struck Mother
while Children were present. DCS investigated the report, which led to the
filing of a CHINS petition. In its petition, DCS alleged that Children were
CHINS because, among other things, Mother failed to provide Children “with
a safe, stable, and appropriate living environment” that was free from domestic
violence. App. Vol. II at 42. The juvenile court held a hearing on the CHINS
petition—at which time Children were four years old and two years old—and
the court subsequently entered an order adjudicating Children CHINS. The
1 Father did not appear during the CHINS proceedings, and he does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 49A04-1706-JC-1401 | December 18, 2017 Page 2 of 7 juvenile court later held a dispositional hearing, after which the court entered a
dispositional order on May 30, 2017. This appeal ensued.
Discussion and Decision [4] In adjudicating Children CHINS, the juvenile court, sua sponte, entered written
findings and conclusions. “As to the issues covered by the findings, we apply
the two-tiered standard of whether the evidence supports the findings, and
whether the findings support the judgment.” In re S.D., 2 N.E.3d 1283, 1287
(Ind. 2014). We review the remaining issues under the general judgment
standard, wherein a judgment will be affirmed if it can be sustained on any legal
theory supported by the evidence. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind.
1997). In conducting our review, “[w]e neither reweigh the evidence nor judge
the credibility of the witnesses,” In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012),
and we give “due regard . . . to the opportunity of the trial court to judge the
credibility of the witnesses.” Ind. Trial Rule 52(A). Moreover, we consider
only the evidence and the reasonable inferences that support the court’s
decision. In re S.D., 2 N.E.3d at 1287. We will not set aside the findings or the
judgment unless we identify clear error, see T.R. 52(A), which is error that
“leaves us with a definite and firm conviction that a mistake has been made.”
Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992).
[5] Here, DCS alleged that Children were CHINS under Indiana Code Section 31-
34-1-1. Under this section, a child under eighteen years old is a CHINS if
Court of Appeals of Indiana | Memorandum Decision 49A04-1706-JC-1401 | December 18, 2017 Page 3 of 7 (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.
Ind. Code § 31-34-1-1. DCS bears the burden of proving by a preponderance of
the evidence that a child is a CHINS. See I.C. § 31-34-12-3. A preponderance
of the evidence is the greater weight of the evidence. See Galloway v. State, 938
N.E.2d 699, 708 n.7 (Ind. 2010).
[6] A child’s exposure to domestic violence can support a CHINS adjudication
under Section 31-34-1-1. See In re N.E., 919 N.E.2d 102, 106 (Ind. 2010); see also
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, the evidence favorable to
the CHINS adjudication indicates that Father had a history of being violent
with Mother, that Children witnessed domestic violence, and that Children
needed play therapy because they witnessed the violence. Moreover, the
juvenile court determined that Children’s “physical and emotional safety [wa]s
Court of Appeals of Indiana | Memorandum Decision 49A04-1706-JC-1401 | December 18, 2017 Page 4 of 7 at risk” until Mother “fully addressed” the issue of domestic violence. App.
Vol. II at 132.
[7] Mother does not dispute that Children were exposed to domestic violence.
Rather, Mother argues that there is insufficient evidence to support the CHINS
adjudication because domestic violence was no longer an issue; thus, according
to Mother, Children were no longer at risk. Mother focuses on the actions she
took after the CHINS petition was filed, including trying to get a protective
order, taking domestic violence classes, and establishing a residence at a
location unknown to Father.
[8] In adjudicating Children CHINS, the juvenile court acknowledged that Mother
had taken steps pertinent to remedying the issue of domestic violence, but the
court was unconvinced that Mother had meaningfully addressed the risk to
Children. In so determining, the juvenile court observed that Father was
present when DCS initially interviewed Mother, and Mother failed to identify
Father to DCS.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 18 2017, 10:07 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Amy E. Karozos Curtis T. Hill, Jr. Greenwood, Indiana Attorney General of Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of Jay.C. and L.R., December 18, 2017 Jr. (Minor Children), Children in Court of Appeals Case No. Need of Services, 49A04-1706-JC-1401 and Appeal from the Marion Superior Court Jaq.C. (Mother), The Honorable Marilyn Moores, Appellant-Respondent, Judge
v. The Honorable Rosanne Ang, Magistrate Trial Court Cause Nos. The Indiana Department of 49D09-1608-JC-2765 Child Services, 49D09-1608-JC-2766 Appellee-Petitioner.
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1706-JC-1401 | December 18, 2017 Page 1 of 7 Case Summary [1] Jaq.C. (“Mother”) has two sons with L.R. (“Father”), Jay.C. and L.R., Jr.
(“Children”). After investigating a report involving domestic violence, the
Marion County Department of Child Services (“DCS”) filed a petition alleging
that Children were Children in Need of Services (“CHINS”). Following a
hearing, the juvenile court adjudicated Children CHINS, and Mother now
challenges that adjudication.1 She presents the sole issue of whether there is
sufficient evidence to support the CHINS adjudication.
[2] We affirm.
Facts and Procedural History [3] On July 14, 2016, DCS received a report alleging that Father struck Mother
while Children were present. DCS investigated the report, which led to the
filing of a CHINS petition. In its petition, DCS alleged that Children were
CHINS because, among other things, Mother failed to provide Children “with
a safe, stable, and appropriate living environment” that was free from domestic
violence. App. Vol. II at 42. The juvenile court held a hearing on the CHINS
petition—at which time Children were four years old and two years old—and
the court subsequently entered an order adjudicating Children CHINS. The
1 Father did not appear during the CHINS proceedings, and he does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 49A04-1706-JC-1401 | December 18, 2017 Page 2 of 7 juvenile court later held a dispositional hearing, after which the court entered a
dispositional order on May 30, 2017. This appeal ensued.
Discussion and Decision [4] In adjudicating Children CHINS, the juvenile court, sua sponte, entered written
findings and conclusions. “As to the issues covered by the findings, we apply
the two-tiered standard of whether the evidence supports the findings, and
whether the findings support the judgment.” In re S.D., 2 N.E.3d 1283, 1287
(Ind. 2014). We review the remaining issues under the general judgment
standard, wherein a judgment will be affirmed if it can be sustained on any legal
theory supported by the evidence. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind.
1997). In conducting our review, “[w]e neither reweigh the evidence nor judge
the credibility of the witnesses,” In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012),
and we give “due regard . . . to the opportunity of the trial court to judge the
credibility of the witnesses.” Ind. Trial Rule 52(A). Moreover, we consider
only the evidence and the reasonable inferences that support the court’s
decision. In re S.D., 2 N.E.3d at 1287. We will not set aside the findings or the
judgment unless we identify clear error, see T.R. 52(A), which is error that
“leaves us with a definite and firm conviction that a mistake has been made.”
Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992).
[5] Here, DCS alleged that Children were CHINS under Indiana Code Section 31-
34-1-1. Under this section, a child under eighteen years old is a CHINS if
Court of Appeals of Indiana | Memorandum Decision 49A04-1706-JC-1401 | December 18, 2017 Page 3 of 7 (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.
Ind. Code § 31-34-1-1. DCS bears the burden of proving by a preponderance of
the evidence that a child is a CHINS. See I.C. § 31-34-12-3. A preponderance
of the evidence is the greater weight of the evidence. See Galloway v. State, 938
N.E.2d 699, 708 n.7 (Ind. 2010).
[6] A child’s exposure to domestic violence can support a CHINS adjudication
under Section 31-34-1-1. See In re N.E., 919 N.E.2d 102, 106 (Ind. 2010); see also
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, the evidence favorable to
the CHINS adjudication indicates that Father had a history of being violent
with Mother, that Children witnessed domestic violence, and that Children
needed play therapy because they witnessed the violence. Moreover, the
juvenile court determined that Children’s “physical and emotional safety [wa]s
Court of Appeals of Indiana | Memorandum Decision 49A04-1706-JC-1401 | December 18, 2017 Page 4 of 7 at risk” until Mother “fully addressed” the issue of domestic violence. App.
Vol. II at 132.
[7] Mother does not dispute that Children were exposed to domestic violence.
Rather, Mother argues that there is insufficient evidence to support the CHINS
adjudication because domestic violence was no longer an issue; thus, according
to Mother, Children were no longer at risk. Mother focuses on the actions she
took after the CHINS petition was filed, including trying to get a protective
order, taking domestic violence classes, and establishing a residence at a
location unknown to Father.
[8] In adjudicating Children CHINS, the juvenile court acknowledged that Mother
had taken steps pertinent to remedying the issue of domestic violence, but the
court was unconvinced that Mother had meaningfully addressed the risk to
Children. In so determining, the juvenile court observed that Father was
present when DCS initially interviewed Mother, and Mother failed to identify
Father to DCS. Later, Mother sought a protective order, but at the hearing on
her request, Mother indicated that Father was not a threat to her or Children.
Moreover, at the fact-finding hearing, Mother was asked why Father did not
know where she lived, and Mother testified that it was because of “this
whole . . . case.” Tr. Vol. II at 185. Further, in explaining why she moved,
Mother indicated that she did not like her old neighborhood but also that she
was under the impression that Children would not return to her if she lived with
Father. The juvenile court ultimately determined that Mother did not cease
contact with Father because of the danger he posed to her and Children, but
Court of Appeals of Indiana | Memorandum Decision 49A04-1706-JC-1401 | December 18, 2017 Page 5 of 7 instead was “modifying her contact with [Father] due to . . . th[e] [CHINS]
action” and the ongoing involvement of the court and DCS. App. Vol. II at
132-33. The court concluded that Mother needed “additional time . . . to work
with a therapist to ensure her and . . . [C]hildren’s safety from domestic
violence.” Id. at 133.
[9] In arguing that she had adequately remedied the issue of domestic violence,
Mother essentially asks that we reweigh the evidence. We may not do so.
Rather, the evidence and the reasonable inferences therefrom support the trial
court’s determination that Mother had not fully addressed the issue of domestic
violence and that she would not remedy the issue without the coercive
intervention of the court. Moreover, to the extent Mother argues that the
danger posed to Children was too speculative, we disagree. Children had
witnessed domestic violence and could verbalize what they saw, and DCS
recommended play therapy to address Children’s exposure to the violence.
Furthermore, because of the continuing prospect of domestic violence,
Children’s physical and mental health remained in serious danger. 2 Thus, the
evidence is sufficient to support the CHINS adjudication.
2 Mother emphasizes that at the time of the dispositional hearing there were no longer concerns regarding the issue of domestic violence. Nonetheless, the evidence supports the determination that Children were CHINS at the time of the CHINS adjudication. See I.C. § 31-34-11-2 (“If the court finds that a child is a child in need of services, the court shall . . . enter judgment accordingly.”).
Court of Appeals of Indiana | Memorandum Decision 49A04-1706-JC-1401 | December 18, 2017 Page 6 of 7 [10] Affirmed.
Kirsch, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1706-JC-1401 | December 18, 2017 Page 7 of 7