In the Matter of K.L., K.L., and K.G., C.L. v. Indiana Department of Child Services ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be Jul 16 2014, 11:02 am
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:
JILL M. ACKLIN GREGORY F. ZOELLER
Acklin Law Office, LLC Attorney General of Indiana
Westfield, Indiana
ROBERT J. HENKE
Deputy Attorney General
Indianapolis, Indiana
CHRISTINE REDELMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF )
K.L., K.L., and K.G., )
MINOR CHILDREN IN NEED OF SERVICES, )
)
C.L., )
)
Appellant-Respondent, )
)
vs. ) No. 49A02-1310-JC-894
)
INDIANA DEPARTMENT OF CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marilyn A. Moores, Judge
The Honorable Rosanne T. Ang, Magistrate
Cause No. 49D09-1303-JC-8408, 49D09-1303-JC-8409, and 49D09-1303-JC-8410
July 16, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
C.L. (“Mother”) appeals the trial court’s order adjudicating her three minor
children, K.ah.L, K.ri.L,1 and K.G. (“the children”), as children in need of services
(“CHINS”).2 Mother raises a single issue for our review, namely, whether the Indiana
Department of Child Services (“DCS”) presented sufficient evidence to support the
court’s adjudication that the children are CHINS. We affirm.
FACTS AND PROCEDURAL HISTORY
On March 5, 2013, the DCS filed its verified petition alleging the children to be
CHINS. In relevant part, the DCS alleged as follows:
On or about March 2, 2013, [DCS] determined by its Family Case
Manager, Melissa Davidovich, that the children are in need of services
because their mother . . . and [J.G., the father of K.G.], have failed to
provide them with a safe and stable living environment free from physical
abuse and substance abuse. On 3/2/13, 2-month old [K.G.] was taken to the
hospital with a nose bleed. At the hospital, physicians discovered that[,] in
addition to the nose bleed, [K.G.] had a busted blood vessel in her eye,
three healing rib fractures, and a healing wrist fracture. The child abuse
specialist reviewed these injuries and concluded they could only have been
caused by blunt force trauma and were indicative of physical abuse.
[Mother] and [J.G.] did not have plausible explanations for the infant’s
injuries. [J.G.], who is [K.G.’s] primary caregiver, admitted to ongoing use
of marijuana as well as Percocet without a valid prescription. [Mother’s]
family members expressed concern that she has undiagnosed mental health
issues. [K.ah.L.] reported that [J.G. had] hit [K.ri.L.] on the face with his
hand. As a result of the foregoing, the coercive intervention of the court is
necessary to ensure the children’s safety and well-being.
Appellant’s App. at 52. The court authorized the filing of the CHINS petition and
ordered the children to be placed with their maternal grandmother.
1
K.ah.L. and K.ri.L have substantially similar names. Our abbreviations follow the
abbreviations employed by the parties on appeal and reference the last two letters of each child’s first
name.
2
The children’s fathers do not appeal the trial court’s order.
2
On June 24 and August 19, 2013, the court held an evidentiary hearing on the
CHINS petition. During that hearing, Dr. Cortney Demetris, a pediatrician at the Peyton
Manning Children’s Hospital at St. Vincent in Indianapolis, testified that it was her
“medical opinion that the most likely cause of the injuries that were found on
[K.G.] . . . is child abuse, nonaccidental trauma.” Tr. at 47. Dr. Demetris further testified
that injuries such as K.G.’s are almost always “traumatic injur[ies],” id. at 48, and, given
that K.G. was only three-months old, “she was not able to do . . . anything . . . that could
have led to the injuries without the knowledge of a caretaker,” id. at 49.
Mother testified that she and J.G. shared a home. Family Case Manager (“FCM”)
Mary Price testified that J.G. admitted that he and Mother shared responsibility for the
care of the children. FCM Davidovich testified that J.G., who was present at the time
K.G.’s nose began to bleed, “had no idea how the child was injured” or even “if the child
was injured.” Id. at 31-32. And FCM Price testified that Mother thought the injuries
“could be a birth defect” or “could have come from sneezing.” Id. at 136. Dr. Demetris
expressly ruled out these possibilities.
Laura West, a home-based therapist assigned by the DCS to this case, testified that
she had been working with Mother and J.G. since shortly after the DCS became involved.
West testified that they had “spent time . . . processing the acceptance of DCS
involvement,” and that Mother “continues to struggle with even knowing that something
has happened.” Id. at 83. West stated that this is important because “accepting the fact
that something has happened to the child is something that you need to . . . help[] with
maintaining the safety of the children in either parent’s care.” Id. at 84. West then stated
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that she was not ready to close out her services with the family in light of the parents’
inability to “accept[] that something has happened, non-accidental trauma[-]wise to the
infant” and that, “if there’s not acknowledgment in that then how . . . will the child be
able to remain safe in their care.” Id. at 87.
On September 3, 2013, the court entered findings of fact and conclusions thereon
in which it adjudicated the children to be CHINS. In particular, the court found that
K.G.’s injuries “were sustained while [she] was under the care, custody and control of her
parents . . . and are indicative of non-accidental trauma,” and that, in light of these
injuries, “all three children who are under the care of [Mother and J.G.] are endangered
until it can be assured that there are no issues of supervision, anxiety, or aggression to
address.” Appellant’s App. at 138. Thereafter, on October 1, 2013, the court entered its
dispositional order, which, among other things, ordered Mother to “follow all
recommendations of the home[-]based therapist.” Id. at 174. This appeal ensued.
DISCUSSION AND DECISION
Mother asserts that the DCS failed to present sufficient evidence to support the
court’s adjudication of the children as 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 rehabilitation that:
(A) the child is not receiving; and (B) is unlikely to be provided or accepted without the
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coercive intervention of the court. “A CHINS adjudication focuses on the condition of
the child.” N.L. v. Ind. Dep’t of Child Servs. (In re N.E.), 919 N.E.2d 102, 105 (Ind.
2010). “[A] CHINS adjudication does not establish culpability on the part of a particular
parent.” Id. “Said differently, the purpose of a CHINS adjudication is to protect
children, not punish parents.” Id. at 106.
The DCS has the burden of proving by a preponderance of the evidence that a
child is a CHINS. I.C. § 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.
A CHINS adjudication “may not be based solely on conditions that no longer exist,” but
the court should “consider the [family’s] situation at the time the case is heard by the
court.” S.S. v. Ind. Dep’t of Child Servs. (In re R.S.), 987 N.E.2d 155, 159 (Ind. Ct. App.
2013).
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 Rule 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
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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).
Here, Mother first asserts that “the precise causation of K.G.’s rib fractures,
bloody nose, and contusion to her eye[] are unknown,” and, as such, there is no evidence
or reasonable inference therefrom to conclude that the children are endangered by her
parenting. Appellant’s Br. at 14. Mother’s reading of the record is incorrect. Dr.
Demetris testified that it was her “medical opinion that the most likely cause of the
injuries that were found on [K.G.] . . . is child abuse, nonaccidental trauma.” Tr. at 47.
Dr. Demetris further testified that, given that K.G. was only three-months old, “she was
not able to do . . . anything . . . that could have led to the injuries without the knowledge
of a caretaker.” Id. at 49. And it is not disputed that Mother shared caretaking
responsibilities for the children. Insofar as Mother proffers alternative evidence on
appeal or otherwise challenges the weight of Dr. Demetris’ testimony, we will not
reweigh the evidence on appeal. The evidence supports the trial court’s finding that the
children are endangered by Mother’s parenting.
Mother also asserts that “[i]t is apparent . . . that the barrier to reunification of
[Mother] to her children is [her] failure to admit, accept or acknowledge the causation of
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K.G.’s injuries.” Appellant’s Br. at 15. Mother then asserts that the court’s order for her
to follow the recommendations of the home-based therapist are contrary to Gilfillen v.
State, 582 N.E.2d 821 (Ind. 1991). In Gilfillen, the trial court revoked a probationer’s
probation after he had maintained his innocence with respect to his child molestation
conviction during his court-ordered counseling, and the trial court concluded that the
probationer therefore failed to successfully complete that condition of his probation. Our
Supreme Court reversed the revocation of probation, concluding that, while the order for
counseling was within the trial court’s discretion:
Gilfillen regularly attended the ordered counseling sessions. Also, he did
not plead guilty and, therefore, has not admitted to having any child
molesting problem. In fact, he continues to protest his innocence. Under
these circumstances, requiring Gilfillen to admit that he has a problem with
child molesting or face revocation of probation is tantamount to requiring
that he admit that he is guilty of the crimes charged. Clearly, this is
unacceptable.
Id. at 824.
Gilfillen does not control here, however. While the trial court has ordered Mother
to “follow all recommendations of the home[-]based therapist,” Appellant’s App. at 174,
neither the trial court nor the home-based therapist has ordered Mother to admit criminal
culpability. Rather, West’s testimony reflected her concern that Mother had failed to
acknowledge that K.G. had suffered any injuries resulting from nonaccidental trauma.
Recognition of this fact is not tantamount to self-incrimination and, according to West,
would be of therapeutic benefit to Mother and the children. We cannot say that the trial
court’s reliance on this testimony or its order that Mother follow the recommendations of
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the home-based therapist is clearly erroneous. We affirm the trial court’s order
adjudicating the children to be CHINS.3
Affirmed.
VAIDIK, C.J., and BROWN, J., concur.
3
Although the DCS separately addresses Mother’s statement that the coercive intervention of the
court is not necessary, we do not read Mother’s statement as an argument separate from the arguments
addressed in this memorandum decision.
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