LAW.coLAW.co

In the MATTER OF: A.A.S. (Minor Child) and J.A.S. (Father), Appellant-Respondent, v. The Indiana Department of Child Services, Appellee-Petitioner

Court of Appeals of Indiana2019-01-25No. Court of Appeals Case No. 18A-JC-1831
121 N.E.3d 144

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Robb, Judge.

Case Summary and Issue

[1] J.A.S. (Father) appeals the juvenile courts finding that his daughter, A.S. (Child) is a child in need of services (CHINS). Father raises one issue for our review, whether the juvenile court erred in finding Child to be a CHINS. Concluding the juvenile court did not err, we affirm.

Facts and Procedural History

[2] Child was born to Father and S.L.S. (Mother) on April 20, 2012, and was six years old when these proceedings began. Father and Mother do not live together. During a three-day period between April 20 and 22, 2018, Child was staying with Father. On April 21, Father and Mother engaged in the following conversation through text message:

[Father]: The next time [Child] poops her pants your [sic] going to spank her and spank her good. Got it.

[Mother]: Yes ... [b]ut you dont need to be spanking her so hard your [sic] leaving bruises either

[Father]: Wouldnt have to if you would do your job

[Mother]: I am

[Father]: Then why she [sic] still doing it?

[Mother]: Cause [sic] shes stubborn and doesnt want to

[Father]: Thats where the a** whooping comes in

Exhibit Volume I at 74-75.

[3] Child returned to Mothers on April 22 and Mother noticed significant bruising on Childs buttocks and left leg as she was helping Child take a bath. Mother texted Father about spanking Child and Father responded, it isnt a big deal and if [Child] wouldnt poop in her pants it wouldnt happen. Appellants Appendix, Volume 2 at 14. Mother brought Child to the hospital.

[4] Soon thereafter, the Indiana Department of Child Services (DCS) received a report alleging that Father had physically abused Child. DCS Family Case Manager Lydia Stepp met Mother and Child at the hospital. Mother reported that Child had no bruising before going to Fathers house three days before, and Stepp took four pictures of Child and her injuries.

[5] DCS filed a CHINS petition on April 24. After several hearings in Fathers absence, an initial hearing was held with respect to Father on May 22 and a fact-finding hearing was conducted on June 18. The juvenile court adjudicated Child to be a CHINS and made the following findings and conclusions:

The Court now adjudicates the [Child] a Child in Need of Services as defined by [ Indiana Code sections] 31-34-1-1 and 31-34-1-2.

In support for this conclusion of law, the following findings of fact are found:

a. [Father] is the biological father of [Child].

b. [Child] was born on April 20, 2012, and is six (6) years of age.

c. On April 22, 2018, [DCS] received a report alleging that [Father] had physically abused [Child].

* * *

g. Family Case Manager Rebecca Eldridge (hereinafter FCM Eldridge), testified that she attempted to contact and notify [Father] of the court hearing set for April 25. FCM Eldridge stated that [Father] knew about the hearing, but chose not to appear. FCM Eldridge further testified that she had attempted to notify [Father] of all subsequent hearings, even going so far as to go to his home with law enforcement. FCM Eldridge knocked on [Fathers] door, but no one answered, despite [Fathers] vehicle being present.

h. Mother admitted at the Initial Hearing held on April 25, 2018, that the allegations in the petition were true and that [Child] was a Child in Need of Services.

i. FCM Eldridge learned that law enforcement was formally charging [Father] with domestic battery and neglect of a dependent resulting in serious bodily injury....

j. Father continued to fail to appear for subsequent hearings, until he was arrested and appeared at his Initial Hearing for his criminal case, at which time [DCS] informed him of his upcoming hearing date, on the record.

k. Hospital records ... indicate that [Child] was diagnosed with contusion of lower back and pelvis and that it was suspected child maltreatment, confirmed. The records also indicate that [Child] suffered significant bruising to full buttocks with some petechiae. The records further indicate that the bruising was cause [sic] by non-accidental trauma. (Exhibit 3).

l. FCM Eldridge testified that [Father] had spoken with her and indicated that he was willing to participate in services, but that he did not think that a Program of Informal Adjustment or a formal Child in Need of Services case was appropriate.

m. FCM Eldridge further testified that [Father] indicated that [Childs] bruising could have been caused by anemia, as she was diagnosed with that when she was younger. Medical records from [Childs] primary physician indicate that [Child] does not have anemia. (Exhibit 4)

n. FCM Eldridge also testified that [Father] had a previous substantiation with the [DCS] that was later overturned, but that case did not influence her decision in this case.

o. Mother ... testified that [Father] sent her text messages, in which [Father] admitted to spanking [Child] and leaving bruises. (Exhibit 5)

p. Mother also testified that [Father] gave [Mother] several versions of how [Child] became injured, including [Child] having anemia, [Child] falling on his steel-toed boots in his home, and that [Child] may have the beginning stages of childhood leukemia.

q. Father testified that [Child] received her injuries when she fell on his steel-toed boots and shoe horns that were inside his front door. Father further testified that she seemed fine when she fell. Father provided a picture of the inside of his front door, though it was not a picture from the day of the incident. (Respondents Exhibit A)

r. Father admitted that he spanked [Child] because she lied about pooping in her pants. He stated that he didnt notice any bruises on her bottom when he spanked her.

s. Father has provided no probable explanation for how [Child] obtained her bruises. He has provided theories, but openly admits that he spanked her and that there were no bruises on her bottom when did so.

t. [DCS] has provided to the Court pictures of [Childs] injuries, as well as medical records which indicate that the bruises are the result of non-accidental trauma and child maltreatment.

u. Based on the evidence and testimony, [DCS] has proved by a preponderance of the evidence that [Child] is a Child in Need of Services.

Order on Fact Finding Hearing at 1-4. Father now appeals.

Discussion and Decision

I. Standard of Review

[6] Father argues there is insufficient evidence supporting Childs CHINS adjudication. DCSs burden of proof in a CHINS proceeding is a preponderance of the evidence. Ind. Code § 31-34-12-3. Preponderance of the evidence, when used with respect to determining whether or not ones burden of proof has been met, simply means the greater weight of the evidence. Travelers Indem. Co. v. Armstrong , 442 N.E.2d 349, 361 (Ind. 1982) (citation omitted). We do not reweigh evidence or assess witness credibility for ourselves in reviewing a CHINS determination. In re S.A. , 15 N.E.3d 602, 607 (Ind. Ct. App. 2014), affd on rehg , 27 N.E.3d 287 (Ind. Ct. App. 2015), trans. denied . Rather, we consider only the evidence in favor of the juvenile courts judgment, along with any reasonable inferences arising therefrom. Id.

[7] In adjudicating Child a CHINS, the juvenile court entered findings of fact and conclusions thereon. We therefore review the juvenile courts judgment pursuant to Trial Rule 52(A) : we first consider whether the evidence supports the factual findings and then consider whether those findings support the juvenile courts judgment. Id. We will not set aside the findings or judgment unless they are clearly erroneous. Id. Findings are clearly erroneous when there are no facts in the record to support them; a judgment is clearly erroneous if it relies on an incorrect legal standard. Id. Although we give substantial deference to the juvenile courts findings, we do not extend such deference to the courts conclusions. Id. Any issues not covered by the findings are reviewed under a general judgment standard and the judgment may be affirmed if it can be sustained on any basis supported by the evidence. Id.

II. Adjudication as a CHINS

[8] As our supreme court explained in In re KD , 962 N.E.2d 1249 (Ind. 2012), there are three elements DCS must prove for a juvenile court to adjudicate a child a CHINS:

DCS must first prove the child is under the age of eighteen; DCS must prove one of eleven different statutory circumstances exist that would make the child a CHINS; and finally, in all cases, DCS must prove the child needs care, treatment, or rehabilitation that he or she is not receiving and that he or she is unlikely to be provided or accepted without the coercive intervention of the court.

Id. at 1253 (footnote omitted).

[9] Here, the juvenile court adjudicated Child a CHINS pursuant to Indiana Code section 31-34-1-2. Order on Fact Finding Hearing at 1. Indiana Code section 31-34-1-2 provides, in relevant part:

(a) A child is a [CHINS] if before the child becomes eighteen (18) years of age:

(1) the childs physical or mental health is seriously endangered due to injury by the act or omission of the childs parent, guardian, or custodian; 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.

[10] On appeal, Father argues DCS failed to produce sufficient evidence that Childs injury was the result of Fathers act and that coercive intervention was necessary. Before proceeding to the merits of Fathers argument, however, we note that Father does not challenge any of the juvenile courts specific findings. These unchallenged findings therefore stand as correct. McMaster v. McMaster , 681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (unchallenged trial court findings are accepted as true).

A. Childs Injury was the Result of Fathers Act

[11] First, Father argues the record fails to demonstrate on a preponderance of the evidence that the bruising was in fact caused by Fathers act. Corrected Appellants Brief at 12. Specifically, Father contends that although he admitted to spanking Child, he categorically denied spanking her with sufficient force to cause bruising. Id.

[12] Indiana Code section 31-34-12-4 states:

A rebuttable presumption is raised that the child is a [CHINS] because of an act or omission of the childs parent, guardian, or custodian if the state introduces competent evidence of probative value that:

(1) the child has been injured;

(2) at the time the child was injured, the parent, guardian, or custodian:

(A) had the care, custody, or control of the child; or

(B) had legal responsibility for the care, custody, or control of the child;

(3) the injury would not ordinarily be sustained except for the act or omission of a parent, guardian, or custodian; and

(4) there is a reasonable probability that the injury was not accidental.

Ind. Code § 31-34-12-4.

[13] The purpose of the Presumption Statute is clear. In cases where a child has injuries that suggest neglect or abuse, it shifts the burden to the party most likely to have knowledge of the cause of the injuries-the parent, guardian, or custodian-to produce evidence rebutting the presumption that the child is a CHINS. Indiana Dept of Child Servs. v. J.D. , 77 N.E.3d 801, 807 (Ind. Ct. App. 2017), trans. denied . Once DCS has produced evidence establishing the elements of Indiana Code section 31-34-12-4, the burden of production shifts to the respondent. Id. at 809.

[14] Here, DCS produced hospital records and pictures detailing significant bruising to Childs buttocks and evidence that Child was in Fathers care when the injuries occurred. Mother testified, and Father himself admitted, that Child had no signs of bruising when she arrived in Fathers care. Such evidence shifted the burden of production to Father to produce evidence rebutting the presumption that the child is a CHINS. J.D. , 77 N.E.3d at 807. As to Fathers burden, the juvenile court found:

Father has provided no probable explanation for how [Child] obtained her bruises. He has provided theories, but openly admits that he spanked her and that there were no bruises on her bottom when did so.

Order on Fact Finding Hearing at 4, ¶ s.

[15] We are mindful, of course, that corporal punishment remains legal in the State of Indiana. See Ind. Code § 31-34-1-15 (This chapter does not ... [l]imit the right of a parent ... to use reasonable corporal punishment when disciplining [a] child.). However, such punishment must still be reasonable, and the extent of Childs injuries suggest otherwise. Therefore, in light of the evidence presented, Fathers failure to rebut the presumption that Child was CHINS, and the juvenile courts unchallenged findings, we conclude Father has failed to demonstrate the juvenile courts judgment is clearly erroneous.

B. Coercive Intervention was Necessary

[16] Next, Father argues there was insufficient evidence to demonstrate that coercive intervention was necessary. The purposes of a CHINS case are to help families in crisis and to protect children, not punish parents. Matter of D.P. , 72 N.E.3d 976, 980 (Ind. Ct. App. 2017). And, in order for a child to be a CHINS, DCS must prove not only that one or the other of the parents suffers shortcomings, but also that the parents are unlikely to meet a childs needs absent coercive court intervention. Id.

[17] In support of his argument, Father relies on In the Matter of E.K. v. Indiana Dept of Child Servs. , where we reversed a CHINS adjudication for insufficient evidence that coercive intervention was necessary. 83 N.E.3d 1256, 1261 (Ind. Ct. App. 2017), trans. denied . There, DCSs intervention was based upon one incident in which father spanked his child too hard in an effort to cease an ongoing temper tantrum. Id. at 1262. There was no evidence that father had previously excessively disciplined the child and after the incident father fully cooperated with DCS, signed a safety plan which included a prohibition on corporal punishment, engaged with home-based counseling, underwent a psychological examination, and voluntarily participated in an online support group for persons with bipolar disorder. We find these facts distinguishable from those now before us.

[18] Here, the record demonstrates that Fathers actions were the result of an ongoing pattern of parenting-not a single lapse of judgment. After all, DCS had previous involvement with Father for the same reasons and despite completing discipline and potty training classes, Father continued to express a preference for spanking Child while encouraging Mother to do the same. See Lang v. Starke County OFC , 861 N.E.2d 366, 372 (Ind. Ct. App. 2007) (noting that a court may consider a parents response, or lack thereof, to services offered in the context of the termination of parental rights), trans. denied . Moreover, Fathers potential for progress without coercive intervention seems particularly unlikely given the fact that he denies Childs injuries were the result of such discipline. Accordingly, we conclude DCS presented sufficient evidence to conclude coercive intervention was necessary.

Conclusion

[19] For the reasons stated above, we conclude the juvenile court did not err in adjudicating Child to be a CHINS. We therefore affirm.

[20] Affirmed.

Riley, J., and Kirsch, J., concur.

The juvenile court also adjudicated Child to be CHINS pursuant to Indiana Code section 31-34-1-1. Because we conclude there is sufficient evidence to support the juvenile courts adjudication of the Child as CHINS pursuant to Indiana Code section 31-34-1-2, we need not also decide whether there was sufficient evidence to support the juvenile courts finding under Indiana Code section 31-34-1-1. See Q.J. v. Indiana Dept of Child Servs., 92 N.E.3d 1092, 1103, n.3 (Ind. Ct. App. 2018), trans. denied .