The opinion
MEMORANDUM DECISION FILED
Apr 06 2016, 9:23 am
Pursuant to Ind. Appellate Rule 65(D), this
CLERK
Memorandum Decision shall not be regarded Indiana Supreme Court
Court of Appeals
as precedent or cited before any court except and Tax Court
for the purpose of establishing the defense of
res judicata, collateral estoppel, or the law of
the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bryan L. Ciyou Gregory F. Zoeller
Ciyou & Dixon, P.C. Attorney General of Indiana
Indianapolis, Indiana
Robert J. Henke
David E. Corey
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: L.S., C.S., & April 6, 2016
W.S., (Minor Children) Court of Appeals Case No.
Children in Need of Services 79A02-1505-JC-374
Appeal from the Tippecanoe Superior
and Court
J.S. (Father), The Honorable Faith Graham, Judge
Appellant-Respondent, The Honorable Tricia Thompson,
Magistrate
v.
Trial Court Cause Nos.
79D03-1412-JC-309
The Indiana Department of Child 79D03-1412-JC-310
Services, 79D03-1412-JC-311
Appellee-Petitioner.
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Robb, Judge.
Case Summary and Issue
[1] J.S. (“Father”) appeals the juvenile court’s adjudication of his three children,
nine-year-old L.S., seven-year-old C.S., and five-year-old W.S. (“Children”), as
children in need of services (“CHINS”). Father raises a sole issue on appeal,
which we restate as whether the juvenile court’s CHINS determination is
clearly erroneous. Concluding the juvenile court’s CHINS determination is not
clearly erroneous, we affirm.
Facts and Procedural History
[2] Prior to their marriage, Father and S.S. (“Mother”) sought counseling and
discussed, in part, how they would discipline any children born to them; the
pair agreed corporal punishment would be an appropriate method. During the
couple’s marriage, Mother and Father physically, mentally, and verbally abused
one another. At a young age, L.S. displayed odd behavioral issues. When L.S.
was two years old, Mother and Father took L.S. to a pediatrician because they
feared L.S. suffered from Asperger’s Syndrome. The pediatrician did not
diagnose L.S. with Asperger’s Syndrome, but recommended Mother and Father
videotape L.S.’s behavior so the behavior could be assessed by doctors; the
pediatrician also recommended Mother and Father take L.S. to see a specialist.
Mother and Father did not videotape L.S.’s behavior nor did they take L.S. to
see a specialist. Rather, Mother and Father utilized corporal punishment in an
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attempt to deter L.S.’s odd behavior. Father’s typical methods of discipline
included spanking and “control.” Transcript at 257. Both parents would spank
the Children with a wooden spoon. “Control” meant that Father would “turn
things that [were] not discipline issues into discipline issues” in order to teach
the Children a lesson. Id. at 258. Mother did not feel Father’s methods were
effective in disciplining the Children.
[3] Over the next several years, L.S.’s conduct became violent. Described by
Father as “terribly disobedient,” L.S. would often hit and kick Father, Mother,
C.S., and W.S. Id. at 85. In one instance, L.S. kicked Mother in the face as
Mother attempted to fasten L.S.’s seatbelt. However, Father claimed C.S. and
W.S. received the most abuse from L.S. Mother and Father discussed seeking
treatment and therapy for L.S., including spiritual counseling to determine
whether L.S. was possessed by demons. Id. at 85. Ultimately, Mother and
Father did not seek any treatment or therapy because they feared if they sought
advice from the “wrong professional who disagreed” with their form of corporal
punishment then the Children could “end up in the system and even perhaps
institutionalized . . . .” Id. at 378.
[4] In November 2014, Father drove L.S. and C.S. to school. At some point,
Father turned the radio off, which irritated L.S. who then removed her seatbelt
and resisted Father’s order to buckle her seatbelt. Thereafter, Father spanked
and/or “pinched” L.S. on the leg multiple times. Id. at 261. When L.S.
continued to resist Father’s order, Father stopped the vehicle on the side of the
road. L.S. exited the vehicle and began sprinting away from Father. Father
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was only able to catch up to L.S. after she tripped and fell. A few days later,
Mother took pictures of bruises on L.S.’s leg because Mother felt Father’s
“abuse had been escalating towards [Mother] and [L.S.].” Id. at 285. Mother
did not report the incident.
[5] Two weeks later, the family was eating dinner when Father “started a
conversation with the [C]hildren about political topics and required that they all
remain in their seat” while Father expressed his political views. Id. at 251.
Frustrated, Mother requested Father change the topic to something more
appropriate for the Children, but Father refused. At some point, L.S. became
resistant to remaining at the table. Father then ordered L.S. to remain seated
and excused C.S. and W.S. from the dinner table. The situation deteriorated
and L.S. began running away from Father because Father was going to spank
her. Fearful the situation had gotten out of hand, Mother called the Children’s
maternal grandfather to see if he could pick up C.S. and W.S. “so they did not
have to witness” the incident. Id. at 256. When the maternal grandfather
arrived, L.S. was seated in a chair at the dinner table “pleading, crying, begging
to be excused.” Id. The maternal grandfather and Father engaged in a “very
heated” argument. Id. Following the exchange, Father removed his belt and
strapped L.S. to the chair, which Father claimed had happened before when the
Children were being disruptive. Thereafter, the maternal grandfather called the
police. After the police arrived, Father removed the belt and excused L.S. from
the table.
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[6] On December 3, 2014, the Indiana Department of Child Services (“DCS”) filed
a petition alleging the Children were CHINS. Specifically, the petition alleged
Father inappropriately disciplined the Children and abused Mother in front of
the Children. On December 9, 2014, the juvenile court held an initial hearing.
There, DCS requested to take the Children into custody and to place the
Children with Mother at the Children’s maternal grandparent’s home, which
the juvenile court granted. Following the removal and placement, Father had
supervised visits with the Children either at his home or in the community.
During one visit, L.S. punched Father in the face. Thereafter, Father’s
supervised visits were suspended due to his resistance to services, having guns
in his home without allowing DCS to assure they were secured, and his “very
controlling” personality. Id. at 182.
[7] On March 24 and March 31, 2015, the juvenile court held a fact-finding
hearing. At the fact-finding hearing, Mother claimed the Children witnessed
Father’s physical, verbal, and mental abuse. In addition, Mother agreed with
DCS that the Children were CHINS. Father testified Mother physically and
verbally abused him. Father also stated L.S. “definitely needs therapy,” but
opined L.S.’s issues were not a result of the family trauma. Id. at 503. Father
did not agree with Mother that the Children were CHINS. Laura Tibbets, a
Permanency Worker with DCS, testified that DCS recommended Father
complete a comprehensive psychological evaluation because DCS believed
Father suffered from severe mental health issues. In addition, Tibbets stated
Father was argumentative, controlling, and unable to control his emotions.
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[8] On April 10, 2015, the juvenile court issued a CHINS Fact Finding Order,
which included its findings of fact and conclusions thereon. Father now
appeals. 1 Additional facts will be added as necessary.
Discussion and Decision
I. Standard of Review
[9] When reviewing a juvenile court’s CHINS determination, we neither reweigh
the evidence nor reassess witness credibility. In re K.D., 962 N.E.2d 1249, 1253
(Ind. 2012). We consider only the evidence that supports the juvenile court’s
decision and reasonable inferences drawn therefrom. Id.
[10] Where, as here, the juvenile court enters findings of fact and conclusions sua
sponte, we apply a two-tiered standard of review to the issues covered by the
findings: (1) we determine whether the evidence supports the findings of fact,
and (2) whether the findings support the judgment. In re S.D., 2 N.E.3d 1283,
1287 (Ind. 2014). “[W]e review the remaining issues under the general
judgment standard, under which a judgment will be affirmed if it can be
sustained on any legal theory supported by the evidence.” Id. (citation and
internal quotation marks omitted).” A finding of fact is clearly erroneous if the
1
We note Mother was a party to the juvenile court’s order and filed a notice of appeal on May 13, 2015.
Thereafter, the State filed a motion to consolidate Mother’s and Father’s appeals, which we granted. On
September 21, Mother filed a pro se motion for an extension of time within which to file her brief. In the
motion, Mother stated her prior counsel withdrew from the case and Mother would be proceeding pro se
until she attained new counsel. We ordered Mother to file her brief no later than thirty days from October
28, 2015, but Mother failed to do so.
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record lacks evidence, or reasonable inferences from the evidence, to support it.
In re Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App. 2009), trans. denied.
The judgment is clearly erroneous if we are left with a “definite and firm
conviction that a mistake has been made.” In re S.L., 997 N.E.2d 1114, 1123
(Ind. Ct. App. 2013). We will reverse only upon a showing that the court’s
decision was clearly erroneous. In re K.D., 962 N.E.2d at 1253.
II. CHINS Determination
[11] Father contends the juvenile court’s judgment adjudicating the Children as
CHINS is clearly erroneous. The juvenile court adjudicated the Children as
CHINS under Indiana Code section 31-34-1-1, which provides,
A child is a child in need of services if before the child becomes
eighteen (18) 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.
In other words, the statute requires the State to prove three basic elements: (1)
the parent’s actions or inactions have seriously endangered the child, (2) the
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child’s needs are unmet, and (3) the child’s needs are unlikely to be met without
State intervention. In re S.D., 2 N.E.3d at 1287. “That final element guards
against unwarranted State interference in family life, reserving that intrusion for
families ‘where parents lack the ability to provide for their children,’ not merely
where they ‘encounter difficulty in meeting a child’s needs.” Id. (emphasis in
original) (quoting Lake Cnty. Div. of Family & Children Servs. v. Charlton, 631
N.E.2d 526, 528 (Ind. Ct. App. 1994)). Because a CHINS proceeding is a civil
proceeding, the State must prove the child is a CHINS by a preponderance of
the evidence. In re K.D., 962 N.E.2d at 1253.
[12] Father argues there is no evidence that Mother’s and Father’s acts of domestic
violence have seriously endangered the Children’s physical or mental condition.
We disagree. Each parent testified the other was physically, mentally, and
verbally abusive. Mother claimed Father was very controlling, and as a result,
Mother did not feel she could keep the Children safe. Moreover, the record
indicates the Children witnessed acts of domestic violence between Mother and
Father, and it is well-established acts of domestic violence in the presence of a
child can support a juvenile court order adjudicating the child a CHINS. See In
re N.E., 919 N.E.2d 102, 106 (Ind. 2010).
[13] In addition to Mother’s and Father’s acts of domestic violence, Mother and
Father failed to take appropriate action to address L.S.’s behavioral issues. L.S.
first developed behavioral issues at the age of two. In an attempt to diagnose
L.S., Mother and Father were told to videotape L.S.’s behavior and take her to
see a specialist, which they did not do. Over the next several years, L.S.
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became “terribly disobedient” and violent, and as Father testified, C.S. and
W.S. suffered the most abuse from L.S. Tr. at 85. Despite L.S.’s conduct,
Mother and Father still did not seek treatment and therapy for L.S.2 Rather,
Mother and Father relied on corporal punishment, which escalated to the point
where Father caused bruising on L.S.’s leg. We conclude Mother’s and
Father’s failure to appropriately seek treatment and therapy for L.S., coupled
with the acts of domestic violence and family trauma within the home,
seriously endangered the Children’s well-being.
[14] Finally, Father argues there is no evidence that State intervention is necessary.
As noted above, Mother and Father were aware of L.S.’s behavioral issues—
including abusing C.S. and W.S.—for several years. Father and Mother knew
L.S. needed treatment and therapy, but neither parent sought appropriate
treatment for L.S. in order to protect L.S., C.S., and W.S. Moreover, Mother
testified all three Children are in need of services, stating further,
[T]he controlling nature of my husband is very suffocating for me
and the [C]hildren and I do not see how I could keep them safe
emotionally particularly and as individuals with freedom and
intelligence and a personhood. I don’t see how I could keep
them safe at this point without lots of help. And I have a great
support system, but I know my husband well. All he does is fight
and I will need people behind me to keep my children from that.
2
Mother testified that, at some point, L.S. was evaluated by Greater Lafayette Area Special Services
(G.L.A.S.S.), which provides public education services to disabled children. L.S. did not qualify for the
program and neither parent sought any further treatment or therapy.
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Id. at 250-51. We also note once DCS became involved, Father’s supervised
visits were ultimately suspended due to his resistance to services, having guns in
the home, and his “very controlling” personality. Id. at 182. As to Father’s
personality, Tibbets recommended Father complete a comprehensive
psychological evaluation because DCS believed Father suffered from severe
mental health issues. We conclude, given the testimony of Father’s conduct
during these proceedings, the Children’s needs are unlikely to be met without
court intervention.
[15] Ultimately, and over the course of several years, Mother and Father failed to
take appropriate action to remedy their marital discord and L.S.’s behavioral
issues. Mother and Father’s failures, coupled with the Children witnessing
Mother’s and Father’s acts of domestic violence, have escalated to the extent
where the family’s physical and mental well-being is seriously endangered, the
Children are in need of services, and the Children will not likely receive the
necessary services without coercive court intervention. Accordingly, the
juvenile court’s order adjudicating the Children as CHINS is not clearly
erroneous.
Conclusion
[16] The juvenile court’s CHINS determination is not clearly erroneous, and we
therefore affirm.
[17] Affirmed.
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Barnes, J., and Altice, J., concur.
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