In the Matter of D.S., Child in Need of Services R.J. v. Indiana Dept. of Child Services ( 2013 )

Pursuant to Ind.Appellate Rule 65(D), Aug 22 2013, 6:01 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
AMY KAROZOS ROBERT J. HENKE
Greenwood, Indiana Indiana Department of Child Services
Indianapolis, Indiana
PATRICK M. RHODES
Indiana Department of Child Services
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF D.S., )
CHILD IN NEED OF SERVICES, )
)
R.J., )
)
Appellant-Respondent, )
)
vs. ) No. 49A02-1301-JC-26
)
INDIANA DEPARTMENT OF CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marilyn A. Moores, Judge
The Honorable Danielle Gaughan, Magistrate
Cause No. 49D09-1209-JC-35418
August 22, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
R.J. (“Father”) appeals the juvenile court’s adjudication of his child, D.S., as a
child in need of services (“CHINS”).1 Father presents a single issue for our review,
namely, whether the court’s adjudication of D.S. as a CHINS is clearly erroneous. We
affirm.
FACTS AND PROCEDURAL HISTORY
On July 24, 2012, Officer Jonathon Schultz of the Indianapolis Metropolitan
Police Department (“IMPD”) responded to a report of domestic violence at a residence in
the 2800 block of North Denny Street. When he arrived on the scene, he observed D.S.’s
mother, A.S. (“Mother”), with bruising on her face, a bloody mouth, and several missing
teeth. Officer Schultz further observed blood around the kitchen table and chair. Mother
told Officer Schultz that Father, her ex-boyfriend, had attacked her and that, following
the attack, she had lost consciousness.
When Officer Schultz approached Father, he denied attacking Mother. Officer
Schultz noticed that Father smelled of alcohol and had bloodshot eyes. Officer Schultz
informed Father that he was under arrest, and Father responded by becoming “verbally
combative . . . , using racial slurs and making threats.” Transcript at 19.
Thereafter, Mother recanted the statements she had made to Officer Schultz,
insisting instead that she had intervened in a fight between Father and Mother’s mother
and she was unsure who had struck her. Mother also insisted that she was drunk at the
1
Mother A.S. does not participate in this appeal.
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time and could not remember what had happened. As such, the State did not pursue
criminal charges against Father.
Nonetheless, the Department of Child Services (“DCS”) investigated the report of
domestic violence. Family case manager Derek O’Brien (“FCM O’Brien”) interviewed
Mother, who had moved in with Father, and she informed him that, at the time of the July
24 incident, D.S. “was in the home.” Id. at 33. FCM O’Brien was concerned that
Mother’s revised explanation of the incident “minimized the domestic violence,” which
concerned him because, “[w]hen a parent minimizes domestic violence[,] they [sic] tend
to stay with the offending parent more often . . . and that creates a situation where they
[sic] keep the children in that same environment allowing them to witness domestic
violence.” Id.
On September 10, the DCS filed its petition alleging D.S. to be a CHINS. In
particular, the petition alleged that Mother and Father
have failed to provide the child with a safe and appropriate living
environment free from domestic violence. [Mother and Father] have an
extensive history of domestic violence, and they were recently involved in a
physical altercation in the child’s presence. The family previously came to
the attention of the DCS for a prior incident of domestic violence [in 2008],
and services were offered to the parents through an Informal Adjustment
Agreement (IA). Despite previous services offered, the parents continue to
demonstrate an inability to provide the child with a safe, appropriate home.
Appellant’s App. at 20.
Following the filing of the CHINS petition, the DCS offered Father numerous
support services. However, he refused all services. Among other rationales, Father
stated that he did not need domestic violence classes. Father also did not avail himself of
scheduled visits with D.S.
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Following an evidentiary hearing, on October 30, 2012, the court entered its order
in which it adjudicated D.S. as a CHINS. After describing the above-stated facts, the
court found as follows:
 By his own admission, [Father’s] criminal history consists of
incidents where [Mother] called the police on him alleging domestic
violence.
 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[s] to supply the child with a safe and appropriate home
environment free from domestic violence and substance abuse. A domestic
dispute occurred on July [24], 2012[,] that necessitated police involvement.
At that time [Mother] told police that [Father] had struck her. She later
recanted and stated that she was intoxicated and did not recall what
happened; she just knew somebody hit her. Clearly, the method of conflict
resolution in the home was inappropriate and involved both [Father] and
[Mother]. . . .
 The family and the child need care or treatment that they are not
likely to be provided without the coercive intervention of the court. Both
parents could benefit from services that would address the domestic
violence in their relationship . . . .
Id. at 57. The court subsequently entered a disposition order instructing Father, among
other things, to participate in DCS-recommended services. This appeal ensued.
DISCUSSION AND DECISION
Father appeals the juvenile court’s adjudication of D.S. as a CHINS. 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
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rehabilitation that: (A) the child is not receiving; and (B) is unlikely to be provided or
accepted without the coercive intervention of the court. The DCS has the burden of
proving by a preponderance of the evidence that a child is a CHINS. Ind. Code § 31-34-
12-3; Davis v. Marion Cnty. Dep’t of Child Servs. (In re M.W.), 869 N.E.2d 1267, 1270
(Ind. Ct. App. 2007). When reviewing the sufficiency of the evidence to support a
CHINS adjudication, we consider only the evidence favorable to the judgment and the
reasonable inferences raised by that evidence. In re M.W., 869 N.E.2d at 1270. This
court will not reweigh evidence or judge witnesses’ credibility. Id.
Moreover, the trial court entered findings of fact and conclusions thereon pursuant
to Indiana Trial Rule 52(A). We may not set aside the findings or judgment unless they
are clearly erroneous. Ind. Trial R. 52(A); Menard, Inc. v. Dage–MTI, Inc., 726 N.E.2d
1206, 1210 (Ind. 2000). In our review, we first consider whether the evidence supports
the factual findings. Menard, 726 N.E.2d at 1210. Second, we consider whether the
findings support the judgment. Id. “Findings are clearly erroneous only when the record
contains no facts to support them either directly or by inference.” Quillen v. Quillen, 671
N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous if it relies on an incorrect
legal standard. Menard, 726 N.E.2d at 1210. We give due regard to the trial court’s
ability to assess the credibility of witnesses. T.R. 52(A). While we defer substantially to
findings of fact, we do not do so to conclusions of law. Menard, 726 N.E.2d at 1210.
We do not reweigh the evidence; rather we consider the evidence most favorable to the
judgment with all reasonable inferences drawn in favor of the judgment. Yoon v. Yoon,
711 N.E.2d 1265, 1268 (Ind. 1999).
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On appeal, Father asserts that the DCS did not prove that the child’s physical or
mental condition was seriously endangered. In support of this contention, Father
maintains that D.S. was not present during the altercation on July 24, that Mother and
Father were no longer in a relationship, and that there was no evidence that D.S. was in
need of care or treatment that he was not otherwise receiving. But each of Father’s
allegations amounts to a request for this court to reweigh the evidence, which we will not
do.
The facts presented to and relied on by the juvenile court support the court’s
adjudication of D.S. as a CHINS. Specifically, based on the DCS’ evidence, the court
found that: Mother had informed Officer Schultz that Father had attacked her and caused
her injuries; Officer Schultz had observed blood around the kitchen table and chair;
Father was intoxicated and verbally abusive when confronted by Officer Schultz; D.S.
was in the home at the time of the July 24 incident; Mother had later recanted her
explanation of the incident; and Mother and Father were living together at the time the
family case manager interviewed her. The DCS also demonstrated that Mother and
Father had minimized their history of domestic violence and that parents who minimize
their domestic violence increase the risk of having a child observe domestic violence.
These facts thoroughly demonstrate, as the juvenile court found, that “[t]he 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[s] to supply the child with a safe and
appropriate home environment,” and that “[t]he family and the child need care or
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treatment that they are not likely to be provided without the coercive intervention of the
court.” Appellant’s App. at 57. Thus, we affirm the court’s adjudication.
Affirmed.
MATHIAS, J., and BROWN, J., concur.
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