In the Matter of: K.A.H., a Child in Need of Services, and A.V.U. (Mother) v. The Indiana Department of Child Services , 119 N.E.3d 1115 ( 2019 )

FILED
Feb 21 2019, 8:07 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Roberta L. Renbarger Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: K.A.H., a Child February 21, 2019
in Need of Services, Court of Appeals Case No.
18A-JC-1763
and
Appeal from the Allen Superior
A.V.U. (Mother), Court
Appellant-Respondent, The Honorable Richard Karcher,
Temporary Judge
v. The Honorable Sherry Hartzler,
Magistrate
The Indiana Department of Trial Court Cause No.
Child Services, 02D08-1711-JC-731
Appellee-Petitioner.
Tavitas, Judge.
Court of Appeals of Indiana | Opinion 18A-JC-1763 | February 21, 2019 Page 1 of 20
Case Summary
[1] A.V.U. (“Mother”) appeals from the trial court’s finding that her minor child,
K.H., is a child in need of services (“CHINS”). We affirm.
Issue
[2] Mother raises one issue, which we restate as whether the evidence establishes,
by a preponderance of the evidence, that K.H. is a CHINS.
Facts
[3] Mother, her boyfriend, M.V. (“Boyfriend”), and Mother’s children, M.G. and
K.H. lived together in Fort Wayne, Indiana. Mother and Boyfriend had a
verbally and physically abusive relationship. M.G. and K.H. often overheard
and witnessed Boyfriend’s screaming, belittling, and battering of Mother. Still,
Mother often left M.G. and K.H. in Boyfriend’s care because Mother believed
that Boyfriend was only violent with her.
[4] In October 2017, the Allen County Department of Child Services (“DCS”)
opened an investigation regarding alleged abuse or neglect of then-two-year-old
M.G., who had a black eye and exhibited petechiae. 1 Mother told investigators
that M.G. had received stitches after falling in the bathtub, and that, after the
stitches were removed, the resulting bruising and scarring resembled a black
1
“When a person is strangled by compressing the jugular veins, blood vessels in the head become over-
inflated with blood, and the smaller vessels will burst, leaving petechiae. When petechiae are caused by
strangulation, they are found only in the head. When they are caused by something else, they can be found
throughout the body.” Smith v. State, 891 N.E.2d 163, 165 (Ind. Ct. App. 2008) (citations omitted).
Court of Appeals of Indiana | Opinion 18A-JC-1763 | February 21, 2019 Page 2 of 20
eye. DCS determined that the claim was unsubstantiated and closed the
investigation.
[5] On November 28, 2017, Boyfriend babysat M.G. Later that day, M.G.
complained to Mother that his head hurt. The following day, Boyfriend again
babysat M.G., while K.H. was at school. When K.H. returned from school,
Boyfriend would not allow K.H. inside the house despite the cold; Boyfriend
insisted that K.H. should play in the backyard. Boyfriend subsequently
telephoned Mother to say that M.G. was nonresponsive. M.G. was transported
to the hospital, where he was declared deceased.
[6] After M.G.’s death, DCS observed “significant and apparent bruising” on
M.G.’s “face, forehead, back, hips and buttocks in multiple stages of healing.”
App. Vol. II p. 18. An autopsy revealed that M.G. had sustained “multiple
blows and strikes from a closed fist,” “severe[ ] injur[ies],” and “blunt force
trauma to his appendix” before his death. 2 Id. at 15, 20. DCS removed K.H.
from Mother’s care that day.
[7] On December 4, 2017, DCS filed a petition alleging that K.H. was a CHINS. 3
After a hearing, the trial court ordered that K.H. be placed with her maternal
grandparents and granted supervised visits to Mother and A.H. (“Father”).
2
On December 6, 2017, the State charged Boyfriend with murder, domestic battery to a minor resulting in
death, and aggravated battery.
3
DCS filed an amended petition on December 17, 2018.
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[8] On January 16, 2018, DCS filed a petition to introduce a videotaped forensic
interview (“Statement”) of K.H. On or about January 30, 2018, the State
charged Mother with neglect of a dependent. On March 14, 19, and 23, 2018,
the trial court conducted a fact-finding hearing and a hearing to determine
whether child hearsay was admissible. On March 23, 2018, the trial court
granted DCS’ petition to introduce the Statement. 4
[9] On July 10, 2018, the trial court entered the following findings of fact and
conclusions of law:
*****
16. The Court finds that the following is undisputed and
uncontroverted:
*****
i. During the course of Mother’s relationship with
[Boyfriend], the couple would often fight in the family
home for which the fights would range from arguments
about bills to cheating accusations.
4
The trial court found that: (1) sufficient indicia of reliability justified admission of the Statement; (2) a
psychologist certified that participation in the CHINS proceedings “would create a substantial likelihood of
emotional or mental harm” to K.H.; and (3) “due to the child’s adjustment disorder, depression, anxiety and
age, [testifying] would cause [K.H.] to shut down, harm her emotional and mental wellbeing, and worsen her
adjustment disorder, depression and anxiety.” App. Vol. II p. 17. The trial court, thus, declared K.H. an
unavailable witness, pursuant to Indiana Code Section 31-34-13-3, and found that K.H.’s Statement was
admissible in the proceeding to determine K.H.’s CHINS status.
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j. . . .[A]t times [Boyfriend] would physically abuse
Mother in the home with the children present in the home
by pushing, shoving her to the ground, and hitting her
causing her bruising to her back on one occasion. Mother
does not dispute that the children would either be on the
trampoline or in their rooms within earshot of the fighting.
k. During the course of arguments, [Boyfriend] would hit
[Mother] if she could not dodge his punch. [Boyfriend]
would frequently confine Mother to the bedroom and
prevent her from leaving. [Boyfriend] would strike Mother
either with an open hand or closed fist and he would hit
her on her head, back and legs.
*****
17. The Court finds that what is disputed is whether the coercive
intervention of the Court is required for which the Court finds as
follows:
a. Mother has long been the victim of domestic violence by
multiple partners.
b. Mother’s previous husband, [L.], the father of
[Boyfriend 5], was convicted of domestic battery
precipitating the end of their marriage.
c. Prior to these current proceedings, Mother had never
received any counseling concerning domestic violence.
5
We assume that this is a scrivener’s error, and that L. is the father of M.G., and not Boyfriend.
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d. During the course of Mother’s intake interview with
SCAN (Stop Child Abuse and Neglect) concerning her
visitation on December 13, 2017, Mother stated that
[Boyfriend] only ever pushed her.
e. Through the testimony of Mother, she claimed that she
was only ever concerned with domestic violence if her
children actually witnessed the abuse; that [Boyfriend]
didn’t “get physical” often and “would stop and
immediately start to apologize.”
f. Through the testimony of Mother, the court finds that
Mother contended that [Boyfriend] wouldn’t scream at the
kids like he screamed at her; that she would intervene
during his discipline of the children if he was mad about
them spilling things; that she did frown upon his responses
and discipline; and that she thought they “agreed they
wouldn’t touch each other’s kids.”
g. However, despite Mother’s victimization, she left the
children with [Boyfriend] on nearly a daily basis.
h. After the inception of these proceedings, Mother has
been receiving therapy and has started to address domestic
violence for the first time. According to Mother[,] “now
that I know what I know, it concerns me.” However, also
according to Mother “I wasn’t concerned if I was being
abused because he couldn’t do that to a child.”
i. At the time of the fact-finding proceedings, and having
seen the autopsy, [Mother] now accepts [Boyfriend] is a
“dangerous guy.” However, leading up to [M.G.’s] death,
[Boyfriend] would provide [Mother with] an explanation
that made sense to her. “My son never had marks that
were hidden—the marks made sense—I never suspected
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anything was going on.” Mother now accepts that the
child was severely injured and additionally sustained blunt
force trauma to his appendix.
18. Mother has not been able to and is currently unable to obtain
sufficient help on her own without the State’s aid. Prior to the
inception of these proceedings, Mother had no recognition that
she and her children were in danger. It wasn’t until the death of
her two-year-old child, the provision of some therapy, and
viewing the autopsy report did [sic] Mother accept that
[Boyfriend] committed this heinous act against two-year-old
[M.G.]. At the time of these proceedings, Mother had not
completed her counseling and has not full [sic] comprehended
the danger of domestic violence.
19. However, [Mother’s] acceptance of the brutality of
[Boyfriend] does not conclude the need for the coercive
intervention of this Court. Despite having been the victim of
domestic violence in the past, Mother did not comprehend that
she was being abused again. Moreover, Mother did not
comprehend the danger that domestic violence posed to her
children. Now, Mother is facing criminal charges for which a no
contact [order] has been issued against her in favor of her
surviving child.
20. Mother’s own supports [sic] did not recognize that two-year-
old [M.G.] was being abused even despite having witnessed
bruises on the child prior to his death. The Court is struck with
the fact that it took the death of [M.G.] for anyone to intervene.
Sadly, although it is too late for [M.G.], it is not too late to
protect [K.H.].
21. The Court concludes that [K.H.] was [a] witness to the
domestic violence to her Mother and was present in the home on
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the day that [M.G.] died. Yet, Mother persists in her contention
that the coercive intervention of the Court is not required.
22. The evidence and the reasonable inferences from the evidence
and testimony support this Court’s determination that Mother
had not fully addressed the issue of domestic violence and that
she will not remedy the issue without the coercive intervention of
the court. Moreover, [K.H.] had witnessed domestic violence
and could verbalize what she saw. Furthermore, because of the
continuing prospect of domestic violence absent this Court’s
coercive intervention, [K.H.’s] physical and mental health
remain in serious danger. Thus, the evidence is sufficient to
support the CHINS adjudication.
23. “A child’s exposure to domestic violence can support a
CHINS finding.” K.B. v. Indiana Dep’t of Child Servs., 24 N.E.3d
997, 1003 (Ind. Ct. App. 2015). Additionally, a single incident of
domestic violence in a child’s presence may support a CHINS
finding, and it need not necessarily be repetitive. See id. at 1003-
04. In K.B., there was evidence that the parties’ children
witnessed domestic violence and were old enough to
comprehend it.
24. Acting under its parens patriae power, the State may interfere
with parental autonomy when it is “necessary to protect the
health and safety of children.” In re V.H., 967 N.E.2d 1066, 1072
(Ind. Ct. App. 2012). The purpose of the CHINS statute is “to
help families in crisis—to protect children, not punish parents.”
In re S.D., 2 N.E.3d 1283, 1285 (Ind. 2014).
25. This trial court must intervene to appropriately protect
[K.H.]. The CHINS adjudication is simply a determination that
[ ] children are in need of services and are unlikely to receive
those services without the court’s intervention; it is not a
determination of parental fault. In re N.E., 919 N.E.2d 102, 105
Court of Appeals of Indiana | Opinion 18A-JC-1763 | February 21, 2019 Page 8 of 20
[Ind. 2010)]. Clearly Mother requires services to learn how to
protect herself so that she can ensure that her child is protected
and in a home free from domestic violence.
26. The Court concludes the following initially denied allegations
concerning the Petition filed on December 17, 2017 and the
Second Amended Petition filed on February 18, 2018, are
sustained by a preponderance of the evidence: 5, 6, 7, 8, 9, 10,
11,14, 15, 16, 17, 18, 17.
JUDGMENT
27. The Court finds and concludes that [K.H.] is “seriously
impaired or seriously endangered as a result of the inability,
refusal, and neglect of Mother to supply the children with
appropriate shelter and supervision.” I.C. 31-34-1-1(1).
28. The Court finds and concludes that [K.H.] requires care,
treatment, and rehabilitation that she is not receiving and [that]
are unlikely to be provided or accepted without the coercive
intervention of the Court. I.C. 31-34-1-1 (2).
App. Vol. II pp. 18-22. Mother now appeals. 6
Analysis
[10] Mother appeals from the trial court’s CHINS determination. CHINS
proceedings are civil actions; thus, “the State must prove by a preponderance of
the evidence that a child is a CHINS as defined by the juvenile code.” N.L. v.
6
Father has admitted that K.H. is a CHINS. App. Vol. II pp. 15-16.
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Ind. Dep’t of Child Servs (In re N.E.), 919 N.E.2d 102, 106 (Ind. 2010). On
review, we neither reweigh the evidence nor judge the credibility of the
witnesses. Id. We consider only the evidence that supports the juvenile court’s
decision and reasonable inferences drawn therefrom. Id. We reverse only upon
a showing that the decision of the juvenile court was clearly erroneous. Id.[11] Indiana Code Section 31-34-1-1 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 without
the coercive intervention of the court.
[12] “[T]he purpose of a CHINS adjudication is to protect children, not [to] punish
parents.” In re N.E., 919 N.E.2d at 106. A CHINS adjudication is not a
determination of parental fault but rather is a determination that a child is in
need of services and is unlikely to receive those services without intervention of
the court. Id. at 105.
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A CHINS adjudication focuses on the condition of the child . . .
. [T]he acts or omissions of one parent can cause a condition
that creates the need for court intervention. A CHINS
adjudication can also come about through no wrongdoing on the
part of either parent, e.g., where a child substantially endangers
the child’s own health or the health of another individual, I.C. §
31-34-1-6; or when a child is adjudicated a CHINS because the
parents lack the financial ability to meet the child’s extraordinary
medical needs.
Id. (citations omitted).
[13] We initially note that “a child’s exposure to domestic violence can support a
CHINS finding.” 7 K.B. v. Indiana Dep’t of Child Servs., 24 N.E.3d 997, 1003
(Ind. Ct. App. 2015). Additionally, a single incident of domestic violence in a
child’s presence may support a CHINS finding, and it need not necessarily be
repetitive. See id. at 1003-04.
[14] Mother challenges the trial court’s finding that “K.H. is seriously impaired or
seriously endangered as a result of the inability, refusal, and neglect of Mother
to supply the children with appropriate shelter and supervision.” App. Vol. II
p. 21. Specifically, Mother disputes the trial court’s findings that: (1) Mother
failed to prevent K.H. from viewing domestic violence in the home; (2) K.H.
observed Boyfriend battering Mother; and (3) K.H. was present in the home
7
In K.B., we affirmed the trial court’s adjudication of the parties’ children as CHINS where the children
witnessed domestic violence and were old enough to comprehend it.
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when Boyfriend allegedly killed M.G. See Appellant’s App. pp. 19-21; see
Appellant’s Br. pp. 12-13. Mother also maintains that Boyfriend’s arrest
“resolved” any “immediate issue of exposure to domestic violence, occurring in
the home[.]” Id. at 15.
[15] Additionally, Mother counters that K.H. has no need of the trial court’s
coercive intervention because Mother and K.H. are “involved in ongoing
counseling”; K.H. receives grief counseling; and, after M.G.’s death, K.H. was
placed with maternal grandparents, who comprise “a major portion of
[Mother’s] support group[.]” 8 Appellant’s Br. p. 13, 15, 16.
[16] We paraphrase and restate the following key findings of the trial court, which
go to the heart of its determination that K.H. is a CHINS: (1) before the
underlying proceedings, Mother did not recognize the extent to which she and
her children were in danger; (2) despite having previously been victimized by
domestic violence, Mother did not recognize that she was being abused again
when Boyfriend battered her; and (3) given the continuing prospect of domestic
violence, Mother requires services to empower her so that she can protect
herself and ensure the safety of her child(ren).
[17] At the fact-finding hearing, DCS presented the following evidence in support of
its petition alleging that K.H. is a CHINS. First, DCS presented the Statement,
8
Mother also maintains that she has never been homeless; that her places of residence have “all had working
utilities[ ] and food”; and that she has “always sought and received appropriate medical care for the
children[.]” Appellant’s Br. p. 13.
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Patricia Smallwood’s 9 forensic interview of K.H., wherein K.H. stated, in part,
the following:
Pat Smallwood: So how do [Boyfriend] and your mom get along?
[K.H.]: That’s a hard one, I don’t know.
Pat: Do they fight?
[K.H.] Nods
Pat: Do they fight with their words or with their bodies or how
do they fight?
[K.H.]: [W]ith their words[.]
Pat: So what happens when [Boyfriend] gets really angry?
[K.H.]: He touches mommy in a bad way[.]
Pat: What do you mean?
[K.H.]: He hits her[.]
Pat: He hits your mom?
9
Patricia Smallwood is a forensic interviewer at the Child Advocacy Center at the Dr. Bill Lewis Center for
Children.
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[K.H.] nods yes
Pat Smallwood: When he hits your mom where does he hit her?
[K.H.] points to legs, arms, and shoulders
Pat: On her legs? Arms? Oh, everywhere?
[K.H.] nods yes
Pat: [A]nd what does your mom do?
[K.H.]: I don’t know[.]
Pat: Does anybody cry?
[K.H.]: [Y]es mommy does.
App. Vol. II pp. 16-17 (emphasis added).
[18] Next, DCS presented testimony from Melissa Nelson, intake and training
supervisor for the restoration department of SCAN. 10 Nelson testified that she
oversaw Mother’s SCAN intake and Mother reported that Boyfriend had “only
ever pushed her,” which is untrue. Tr. Vol. II p. 52. DCS also presented
testimony from family case manager, Kalie Ellert, who testified that, “due to
the [ ] death of [M.G.,] there were also concerns for [K.H.] in the home [ ] due
10
The SCAN organization aims to “Stop Child Abuse And Neglect.” App. Vol. II p. 19.
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to the domestic abuse or physical abuse[,]” and given “the lasting effects of
witnessing domestic violence [ ] and seeing what it can do long-term.” Id. at
56, 57.
[19] The trial court also heard Mother’s troubling testimony regarding her
experience with domestic abuse. Mother testified that she and Boyfriend
argued about “[n]ormal couple” matters. Id. at 60. The following exchanges
ensued under direct and cross examination of Mother:
Q [With Boyfriend] [w]as it [ ] verbal arguments or did it get
physical?
A Depended on the day.
Q Okay so how often did it get physical?
A Not very often.
Q Okay and what would happen when it did get physical?
A (sigh) I mean there was a few times where he had put his
hands on me um but it wasn’t anything where I’d have to go to
the emergency room or anything like that (sniffle).
Q Okay when you say it he put his hands on you can you tell
me kind of what you mean . . . ?
A Um shoving pushing um he’s hit me a few times (sniffle).
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Q And where were the children during these um arguments
you guys would have?
A Um they were in their rooms or they would be outside in
the backyard playing on the trampoline.
Q Would you say that they were within earshot at all?
A Um if they were in their room yes.
Q Were they able to see you guys at any point through a
hallway or anything?
A No.
Q Did you have [ ] any concerns about what the children
might have been exposed to when that happened?
A Um not necessarily because they didn’t see anything going
on.
*****
Q Ah when you were getting into those arguments you said
they got physical was there um when they got verbal was it loud
at all?
A Um sometimes.
Q Okay and how did that make you feel?
*****
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A I felt like I was nothing because whatever he said he would
find any little insecurity I had and that’s what he would attack
me with.
*****
Q Okay and when he did actually make contact with you
was it with his hand or his foot or how did he connect with you?
A It was usually his hand.
Q Okay was it a closed hand or an open hand?
*****
A —I think like closed fist like maybe once other than that it
was usually opened.
Id. at 60-61, 63, 68.
[20] Mother also testified that K.H. and M.G. were within earshot of Mother’s and
Boyfriend’s arguments “[m]aybe a handful of times[,]” “[p]ossibly” ten or more
times; and that Boyfriend “yell[ed]” at the children “if they did something bad,”
but “not necessarily . . . screaming like he [did] with [her] when [Mother and
Boyfriend] were fighting.” Id. at 65, 66, 69-70. She also testified that her
relationship with Boyfriend was not her first violent relationship and that “[her]
ex-husband was that way.” Id. at 71. Mother testified that, until M.G.’s death,
she was “not concerned” about leaving Boyfriend alone with the children. Id.
at 91. When she was asked “was it concerning that you [were] having the
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altercations you were having and [Boyfriend] was alone with the children every
day[,]” Mother replied, “No because somebody can abuse their spouse and not
touch a child.” Id.
[21] Here, the trial court heard evidence that: (1) K.H. was aware that Boyfriend
“hits” Mother and that “[M]ommy [cries,]” see App. Vol. II p. 17; (2) K.H.
witnessed Boyfriend’s physical abuse of Mother and could indicate on her own
body where Boyfriend had struck Mother; (3) K.H. was aware of and felt the
impact of Boyfriend’s alleged killing of M.G.; (4) Mother has been victimized
by domestic violence in at least two relationships; (5) despite Boyfriend’s
violence toward her, Mother continued to leave the children in his care and
extended Boyfriend the benefit of the doubt regarding M.G.’s injuries; (6)
despite warning signs, Mother did not appreciate the extent to which she and
the children were in danger until M.G.’s death; (7) the unique circumstances of
the case prompted DCS’ concern regarding “the lasting effects of witnessing
domestic violence” on K.H., id. at 57; and (8) Mother did not undergo therapy
relating to domestic violence until after M.G.’s death.
[22] We are sensitive to the fact that a CHINS finding is not a determination of
parental fault; we also appreciate the fact that Mother has been battered in two
relationships and has suffered the devastating loss of a child. That said,
Mother’s contention that Boyfriend’s arrest, following M.G.’s death, eliminated
the need for coercive intervention of the trial court is stunning in its lack of self-
awareness. We find most disturbing the fact that the postmortem examination
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of M.G. revealed bruises all over his body in various stages of healing; yet,
Mother maintains that she was unaware of the abuse.
[23] The domestic violence that allegedly resulted in M.G.’s death is not an isolated
incident in Mother’s life. At issue before the trial court was not just reckoning
with the aftermath of M.G.’s senseless death, but also with Mother’s inability to
protect her children from ongoing domestic violence. We agree with the trial
court that, “although it is too late for [M.G.], it is not too late to protect” K.H.
App. Vol. II p. 20; see K.B., 24 N.E.3d at 1003 (upholding CHINS adjudication
where the parties’ children witnessed domestic violence and were able to
comprehend it); see id. at 1003-04 (holding that a single incident of domestic
violence in a child’s presence may support a CHINS finding, and it need not
necessarily be repetitive); see also In re R.P., 949 N.E.2d 395, 401 (Ind. Ct. App.
2011) (holding that the CHINS statute does not require the juvenile court and
DCS to wait until a child is physically or emotionally harmed to intervene;
rather, a child may be determined to be a CHINS if his or her physical or
mental condition is endangered).
[24] DCS established, by a preponderance of the evidence, that K.H. “is seriously
impaired or seriously endangered as a result of the inability, refusal, and neglect
of Mother to supply the children with appropriate shelter and supervision” and
K.H. “requires care, treatment, and rehabilitation that she is not receiving and
are unlikely to be provided or accepted without the coercive intervention of the
Court.” See App. Vol. II pp. 21-22. The devastating physical trauma that
Mother and M.G. suffered, and Mother’s inability to recognize the effects of
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domestic violence on her parenting and on her children’s well-being, warrant
the coercive intervention of the CHINS court. The trial court’s determination
that K.H. is a CHINS is not clearly erroneous. We affirm.
Conclusion
[25] The trial court’s finding that K.H. is a CHINS is not clearly erroneous.
[26] Affirmed.
[27] Baker, J., and May, J., concur.
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