IN RE: K.B. and C.B. (Minor Children) (2024)

MEMORANDUM DECISION

Alice, Chief Judge.

Case Summary

[1] L.B. (Father) appeals the trial court's order adjudicating two of his children, C.B. and K.B., as Children in Need of Services (CHINS). Father contends that the Indiana Department of Child Services (DCS) failed to present sufficient evidence to support the trial court's determination.

[2] We affirm.

Facts & Procedural History

[3] Father and C.S. (Mother)¹ have two children together: son C.B, born in November 2014, and daughter L.B., born in December 2018, who is not part of this case.² At the time of the events leading up to the current CHINS case, Father had sole legal and primary physical custody of C.B. He also had custody of his son K.B., born in April 2009, whose mother is deceased.

[4] On July 20, 2023, DCS central intake unit received a report of neglect involving Father that identified K.B., C.B., and L.B. as alleged victims. Upon investigating, DCS learned that Father had been arrested on June 30 and charged with operating while intoxicated (OWI) with C.B. in the vehicle and neglect of a dependent, both Level 6 felonies.

[5] On August 14, 2023, DCS Family Case Manager (FCM) Maddison Dempsey and FCM Supervisor (FCMS) Theresa Setty, filed a preliminary inquiry with the court. Among other things, FCM Dempsey and FCMS Setty reported that, on August 3, they met with Mother, who told them about incidents of domestic violence involving Father that had occurred in May and June 2023. They also reported that FCM Summer Dial met with C.B., then age eight, on July 21. In addressing what reasonable efforts had been made to provide services, the preliminary inquiry reflected that, “[w]hile both parents completed services” in L.B.’s open CHINS case, “it is evident the[y] did not take the information provided and utilize [it] to prevent new concerns not only for alcohol consumption but domestic violence.” Appendix at 11.

[6] On August 15, 2023, DCS filed a petition alleging that C.B. was a CHINS under Ind. Code §§ 31-34-1-1 and -2. DCS specifically alleged that “Father has a history of drug and alcohol abuse, was arrested for operating while intoxicated endangering another, and with a child under the age of eighteen in the vehicle ․ [and] has a recent history of violence in the home.” Id. at 16. At the August 17 initial hearing, FCMS Setty testified that everything reported in the preliminary inquiry was true and accurate, and the court found probable cause for the CHINS petition. Father denied the allegations, and the matter immediately proceeded to a detention hearing.

[7] FCMS Setty testified about her interview with Mother, in which Mother said that, before Father was stopped by police on June 30, he had been at her home and was in “an altercation” with Mother's daughter's boyfriend. Transcript at 24. FCMS Setty also testified about two incidents of domestic violence between Mother and Father that occurred in summer 2023. In one, Father and Mother ware arguing, Father “was intoxicated and became belligerent,” and Father directed K.B. and C.B. to assault Mother, which one or both did, and law enforcement was called. Id. at 25. In a separate incident, Father slashed all four tires on Mother's vehicle. FCMS Setty testified that DCS had learned about the domestic incidents, not only from Mother, but also from “run reports” obtained from Marion County law enforcement. Id. at 39; see also id. at 37. On cross-examination, FCMS Setty acknowledged that Father currently had an ignition interlock device on his vehicle but testified that this did not alleviate DCS's concerns with Father's alcohol use. Id. at 31.

[8] Mother also testified at the hearing, stating that Father slashed her tires, subsequently apologized, and paid for their replacement. Mother stated that she had been a victim of abuse “pretty much [her] whole life,” was taking domestic violence classes to learn victim coping skills, and did not want C.B. to be subject to the cycle of domestic violence. Id. at 44. Mother described Father as “a mental terrorist” who “just keeps sliding under the radar as far as what he is allowed to continue to do.” Id.

[9] Ultimately, DCS asked the court to remove C.B. from Father's home and place him with Mother due to concerns about Father's alcohol use and ongoing domestic violence. Mother testified that she was in agreement with DCS's plan. Father maintained that there was no need to detain C.B., as the ignition interlock device on his vehicle should resolve any concerns that DCS may have had after the June 30 incident, and, further, that a change to Mother's residence and new schools would not be the least restrictive means or best for C.B.

[10] At the conclusion of the detention hearing, the court advised that it had considered the testimony as well as the preliminary inquiry, noting that it found “persuasive” C.B.’s statements to FCM Dial, which included that Father gets “mean” when he drinks vodka, he wished Father would “really stop drinking vodka this time,” and he did not “wanna ride in the truck when [his] Dad drinks vodka.” Id. at 53, 55; Appendix at 5-6. The court believed that Father's drinking and then driving with C.B. in his vehicle on June 30 “was not an isolated incident” and further found that there had been recent incidents of domestic violence between Mother and Father. Transcript at 55. Concluding that safety concerns existed, the court ordered that C.B. be placed with Mother, conditioned upon Mother having clean drug screen results, and that Father's parenting time be supervised pending the factfinding hearing.

[11] On September 13, DCS filed a petition asking the trial court to adjudicate Father's older son, K.B., as a CHINS under I.C. § 31-34-1-1. DCS alleged, among other things, that Father has a history of domestic violence with Mother in the presence of his children, that on an occasion in May 2023, law enforcement was called to Father's home, found Mother and Father intoxicated, and “K.B. attempted to intervene during the altercation.” Appendix at 85. DCS asserted that the coercive intervention of the court was required to ensure K.B.’s safety and well-being because “exposure to domestic violence and excessive alcohol use by [Father] places [K.B.] at risk physically and emotionally, and [Father] has not taken necessary action to address the above-mentioned issues despite prior services offered.” Id. at 86. An initial hearing was held that day, and Father appeared by counsel only. DCS requested, and the court ordered, that K.B. remain with Father conditioned on Father's participation in certain services and drug/alcohol screens.

[12] On October 10, 2023, the trial court held a consolidated factfinding hearing on the CHINS petitions for K.B. and C.B. Mother testified about the incident in summer 2023 when Father slashed her tires. Specifically, she described that she and Father had “a verbal altercation” that day at Father's residence and, when she wanted to leave, Father, who “gets rather controlling,” would not unlock his gate to allow her to exit. Transcript at 138, 139. She testified that K.B. and C.B. were present at the time. Mother eventually was picked up by her older daughter, and when Mother returned the next day to retrieve her car, she found that her tires had been slashed. Although she did not witness Father do it, she testified that Father made it clear that he “was pretty proud that he did it.” Id.

[13] Mother also testified to the specific course of events on June 30 that preceded Father's traffic stop and arrest. She recalled that she and Father took C.B. to the park that day and then drove to her residence; K.B. did not accompany them and instead stayed at Father's house. Mother described that they “had drinks” at her house, and Father got into an argument with Mother's daughter's boyfriend, shoving the boyfriend and saying “what's up now b*tch.” Id. at 148, 155. Mother told Father, “[Y]ou're not doing this in front of the kids” and directed Father to leave, which he did, taking C.B. with him. Id. at 141. Mother described that Father returned to retrieve a bottle of vodka and “that is when he busted my porch light because I told him I was dumping it out and he needs to get the eff off my property.” Id. Mother explained that she called the police because Father had been drinking at her house, he was in an upset state when he left with C.B., and she was concerned for C.B.’s safety. In response to questioning about whether there had been other domestic incidents that occurred during the summer of 2023, Mother testified that she and Father had “a few physical alter[c]ations.” Id. at 139-40.

[14] DCS also called Officer Keegan Russell to testify. Officer Russell had responded to the dispatch call on June 30 and initiated the traffic stop after observing Father “weaving” within the lines. Id. at 104. Officer Russell testified that during the stop he smelled alcohol coming from Father, Father's eyes were red and glassy, and he was unsteady on his feet. Officer Russell further testified that Father submitted to several field sobriety tests and exhibited “significant signs of impairment.” Id. at 95. Officers also found an open bottle of liquor in the truck. Father was transported to the hospital for a blood draw, but the results had not come back by the time of the factfinding hearing.

[15] Father testified to, among other things, his version of events on June 30. He stated that Mother's daughter's boyfriend “started getting in [his] face,” so he decided it was time to go home. Id. at 128. Father maintained that nothing physical happened between him and the boyfriend.

[16] The trial court took the matter under advisement and, on October 30, 2023, entered an order adjudicating C.B. and K.B. as CHINS under I.C. § 31-34-1-1. The court proceeded to a dispositional hearing on November 29, and on December 20, the court entered its dispositional decree ordering Father to participate in services. Father now appeals.

Discussion & Decision

[17] Father asserts that the trial court's determination that K.B. and C.B. are CHINS is not supported by sufficient evidence. Initially, we observe that the purpose of a CHINS case is to protect children, not to punish parents. In re K.D., 962 N.E.2d 1249, 1255 (Ind. 2012). That is, “[a] CHINS adjudication is not a determination of parental fault but rather is simply a determination that a child is in need of services and is unlikely to receive those services without the court's intervention.” In re D.F., 83 N.E.3d 789, 796 (Ind. Ct. App. 2017). A court need not wait until a tragedy occurs to intervene. In re R.S., 987 N.E.2d 155, 158 (Ind. Ct. App. 2013).

[18] Because a CHINS proceeding is a civil action, the State must prove by a preponderance of the evidence that a child is a CHINS as defined by the juvenile code. K.D., 962 N.E.2d at 1253. In the present case, the trial court determined that C.B. and K.B. were CHINS pursuant to I.C. § 31-34-1-1, often referred to as “the neglect statute.”  ³ See D.F., 83 N.E.3d at 795. Our Supreme Court has interpreted this provision to require proof of “three basic elements: that the parent's actions or inactions have seriously endangered the child, that the child's needs are unmet, and (perhaps most critically) that those needs are unlikely to be met without State coercion.” In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). We have recognized that, “a child's exposure to domestic violence can support a CHINS finding.” K.B. v. Ind. Dep't of Child Servs., 24 N.E.3d 997, 1003 (Ind. Ct. App. 2015).

[19] When reviewing the sufficiency of the evidence supporting a CHINS determination, we neither reweigh the evidence nor judge the credibility of the witnesses. In re J.L, 919 N.E.2d 561, 563 (Ind. Ct. App. 2009). We consider only the evidence most favorable to the judgment and the reasonable inferences flowing therefrom. Id. We will reverse a CHINS determination only if it is clearly erroneous. K.D., 962 N.E.2d at 1253. Also, appellate courts generally grant latitude and deference to trial courts in family law matters in recognition of the trial court's unique ability to see the witnesses, observe their demeanor, and scrutinize their testimony. In re A.M., 121 N.E.3d 556, 561-62 (Ind. Ct. App. 2019), trans. denied.

[20] Here, in challenging the sufficiency of the evidence to support the trial court's CHINS determinations as to both C.B. and K.B., Father raises various arguments including that DCS did not establish that Father “was actually intoxicated” when he was arrested for OWI, that he and Mother both testified that he only had two shots of alcohol at her house, and the blood draw results were not back by the time of the factfinding hearing or were never presented. Appellant's Brief at 9. He further suggests that prior serious injuries he suffered in 2013 and 2020, to which he testified, caused or contributed to his inability to pass field sobriety tests on June 30. He also argues that, because his vehicle is equipped with an ignition interlock device, DCS's concerns about drinking and driving no longer exist and further points out that K.B. was not even in the vehicle at the time. We are unpersuaded by these arguments for several reasons.

[21] As an initial matter, DCS was not required to prove that Father was legally intoxicated at the time of the traffic stop. That determination is for the pending criminal action. Moreover, Mother testified that she knew Father “had drinks” at her house and was concerned for C.B.’s safety when Father drove away with him on June 30. Transcript at 155. Officer Russell testified to observing various “significant signs of impairment” during the stop. Id. at 95. While the trial court heard Father's testimony as to what may have caused the failures on some of the field sobriety tests, it was for the trial court to weigh his credibility. Further, as to Father's argument that K.B. was not in vehicle, we agree with the State that Father's decision to drive with C.B. in the car after consuming alcohol “shows that Father has a history of making decisions that place his children in danger and/or unaddressed substance abuse issues.” Appellee's Brief at 14.

[22] Lastly, and importantly, while the June 30 traffic stop and arrest for OWI with C.B. in the vehicle may have been the precipitating factor that led to the filing of the CHINS petitions, the record reflects that DCS's concerns about alcohol use was not based strictly on that one incident. Indeed, the record reflects that Father and Mother had an on-again-off-again relationship for a decade or more and that, especially when alcohol was involved, Father became belligerent and controlling, the parties argued, and domestic violence between Father and Mother sometimes ensued. See, e.g., Transcript at 143-44 (Mother agreeing on cross-examination that she and Father “have no business being in any kind of relationship” and that when they consume alcohol together “problems occur”).

[23] As to concerns of domestic violence, Father argues that, “other than Mother's bald assertion that Father slashed her tires,” DCS presented only “vague descriptions of domestic violence” and failed to show “that Father had recently been violent toward Mother[.]” Appellant's Brief at 4, 9. We disagree. Mother testified that, while in C.B. and K.B.’s presence, he prevented her from leaving in her own car and later slashed her tires. In another incident, Father, after having “had drinks,” shoved Mother's daughter's boyfriend because he was mad at him for previously calling the police on Father stemming from domestic violence with Mother, and Father smashed her porch lights before leaving with C.B. Mother also testified that there had been “a few” physical altercations between her and Father in the summer of 2023. Transcript at 139-40, 155. The record reflects that, despite having been through domestic violence services as part of L.B.’s CHINS proceedings, the domestic violence between Mother and Father continued into 2023.

[24] Father's various arguments on appeal amount to a request to reweigh the evidence and judge the credibility of the witnesses, which we cannot do on appeal. See D.F., 83 N.E.3d at 796. Considering only the evidence that supports the trial court's decision and reasonable inferences therefrom, we find that the evidence is sufficient to support the CHINS adjudication. Accordingly, the trial court's decision was not clearly erroneous.

[25] Judgment affirmed.

FOOTNOTES

1.   Mother waived her right to a factfinding hearing and admitted the CHINS allegations. She does not participate in this appeal.

2.   At the time that C.B. and K.B. were determined to be CHINS, there was an open CHINS action involving L.B., stemming from domestic violence between Mother and her then-husband, R.S. In that CHINS case, Mother was considered by DCS to be the “offending parent,” and Father was considered to be the “non-offending parent.” Transcript at 39-40.

3.   I.C. § 34-31-1-1 provides that a child under the age of eighteen is a CHINS if:(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.

Memorandum Decision by Chief Judge Altice

Judges Bailey and Mathias concur. Bailey, J. and Mathias, J., concur.