IN RE: S.J. (2024)

MEMORANDUM DECISION

Case Summary

[1] J.R. (“Father”) appeals the trial court's order adjudicating his daughter, S.J. (“the Child”), to be a child in need of services (“CHINS”).¹ Father argues that the trial court: (1) abused its discretion by admitting testimony regarding domestic violence in the home; and (2) clearly erred by adjudicating the Child to be a CHINS. We disagree and affirm.

Issues

[2] Father raises several issues, which we consolidate and restate as:

I.  Whether the trial court abused its discretion by admitting testimony regarding domestic violence in the home.

II. Whether the trial court clearly erred by adjudicating the Child to be a CHINS.

Facts

[3] The Child, who was born in 2022, is the daughter of Father and Mother (collectively “Parents”). The Child has a half-sister, A.S. (“Sister”), who was born in 2007. On June 25, 2023, when the Child was approximately eight months old, Lawrence Police Department officers responded to a call regarding domestic violence between the Parents. Mother told the officers that she and Father were arguing because Father wanted to take the Child to visit family in Chicago and, at some point, while Father was holding the Child, Father pushed Mother.

[4] On August 15, 2023, Lawrence Police Department officers responded to another call regarding domestic violence between the Parents. When the officers arrived, Mother's face was “red and puffy,” and she reported that, during an argument with Father in the driveway, Father smashed her phone, punched her in the face, and grabbed her by the neck. Tr. Vol. II p. 66. Father was not present when the officers arrived. It is unclear where the Child was during this altercation.

[5] In approximately the fall of 2023, the Parents began taking the Child to a babysitter (“Babysitter”)² in the mornings. Father would drop off the Child at 8:00 a.m. before work, and Mother would pick her up at approximately 3:00 p.m. after Mother finished work. Father would arrive home from work at approximately 9:00 p.m.

[6] On November 17, 2023, Mother picked up the Child from the Babysitter. At some point, Mother noticed that the Child's leg was swollen and that the Child would not stop crying. At approximately 8:00 p.m., Mother brought the Child to the hospital, and Father met them there later that night. X-rays revealed that the Child had five bone fractures: a spiral fracture to her thigh bone and four small fractures to her upper arms. The arm injuries, however, showed signs of healing, which suggested that they were sustained one-to-two months prior to the leg injury. The Child also had bruises on her chest and cheek.

[7] A report for suspected neglect or child abuse was filed, and family case manager Shakayla Whitley from the Department of Child Services (“DCS”) met with the Parents at the hospital. The Parents told DCS that the Child had been acting normally the past few weeks, and they could not point to any cause for the Child's injuries. The Parents claimed the injuries might have occurred while the Child was with the Babysitter. Mother told DCS that she called the Babysitter after discovering the Child's swollen leg and the Babysitter told her that she had noticed the leg was “inflamed” in the “middle of the day.” Id. at 201.

[8] The Parents denied that domestic violence occurred in the home, and Father denied disciplining the Child. Father appeared “frustrated” at the hospital; he did not make eye contact with the FCM and provided brief answers. Id. at 174. The Parents later sent DCS a photograph of another child, whom the Parents claim sustained a bruise while in the Babysitter's care.

[9] DCS later spoke with Sister, who informed DCS that domestic violence did occur in the home. DCS also spoke with the Babysitter. According to the Babysitter, she had been babysitting the Child for three months and had been voicing “concerns” regarding Child to Mother “since her very first day babysitting the Child,” but Mother ignored her concerns. Id. at 168. The Babysitter also told DCS that she advised Mother to take the Child to the hospital earlier that week, but Mother wanted to wait until the Child's check-up scheduled for the end of the month.

[10] DCS removed the Child from the Parents and, on November 21, 2023, filed a petition alleging that the Child was a CHINS based on domestic violence in the home and the Child's injuries. DCS alleged that the Child was a CHINS pursuant to Indiana Code Section 31-34-1-1 (inability, refusal, or neglect) and Indiana Code Section 31-34-1-2 (act or omission seriously endangering the child's physical or mental health). DCS also alleged that the Presumption Statute, Indiana Code Section 31-34-12-4, applied and, thus, a rebuttable presumption that the Child is a CHINS existed.

[11] The trial court held fact-finding hearings on January 18 and 25, 2024. Mother entered a “deny and submit” agreement, wherein she denied the allegations but stipulated that the trial court could consider the CHINS petition and preliminary inquiry. Appellant's App. Vol. II p. 82. Neither Mother nor the Babysitter testified at the hearing. Father objected to the law enforcement officers’ testimony regarding domestic violence on the grounds that it was irrelevant and prejudicial; however, the trial court admitted the evidence over Father's objection. Additionally, over the trial court's advisement that Father's silence could be used to draw an adverse interest, Father invoked his Fifth Amendment right not to testify regarding domestic violence in the home.

[12] Dr. Ann Freshour, a child abuse pediatrician, testified regarding the Child's injuries. Dr. Freshour testified that the Child's leg fracture was a recent injury caused by a “torsion or twisting mechanism” and would have been “very painful.” Tr. Vol. II pp. 121, 125. The Parents should have known about the injury because the Child would have been in pain with any movement of her leg. As for the arm injuries, the fractures were “very specific to non-accidental trauma” and were usually the result of “either a forceful tug or [pull] on the end of an extremity.” Id. at 134, 131. Lastly, the bruises were in “uncommon locations for accidental bruises in [c]hildren that are walking and mobile.” Id. at 139. Based on the injuries and the lack of an explanation regarding their cause, Dr. Freshour opined that the injuries were “consistent with inflicted injury.” Id. at 143.

[13] Father then presented his case-in-chief. Father denied that either he or Mother harmed the Child and claimed that the injuries could have been caused by the Babysitter. Father denied that the Babysitter told Mother that the Child needed medical treatment. Father also testified that Child had a check-up with her pediatrician nearly one month earlier on October 19, 2023, during which the pediatrician found nothing abnormal; Father introduced videos from October 21 and 22, which showed the Child acting normally.

[14] In closing arguments, DCS argued that the Child was a CHINS pursuant to the Presumption Statute, Indiana Code Section 31-34-12-4 and other CHINS statutes. The trial court adjudicated the Child to be a CHINS, stating that “the presumption was not rebutted” and “that is not to say that [P]arents were the cause but it did occur in their care ․ or at least their control.” Id. at 247. In its written findings, the trial court found the following:

6. Lawrence Police Officers visited [the Child's] home on June 25 and August 15, 2023, on reports of domestic violence. The officers observed injuries on Mother on both occasions. In his testimony, Father refused to answer questions regarding domestic violence in his home by asserting his right to not incriminate himself. He understood that the Court could treat his refusal as being inculpatory.

7. The Court finds that Father would have provided inculpatory testimony of his having committed acts of domestic violence on members of his household had he answered such questions truthfully.

8. On November 16, 2023, medical personnel at Riley Hospital for Children treated [the Child] and suspected child abuse. Dr. Ann Freshour testified that [the Child] was diagnosed with bruising on her chest and cheek, and fractures in a leg and both arms. The leg fracture was acute, while the arm fractures were in various stages of healing. Dr. Freshour opined that the injuries were not accidental. Dr. Freshour further opined that these injuries were inflicted on [the Child] intentionally and are unexplained by the parents’ various proffered explanations for how they could have occurred. The Court is convinced by this evidence.

9. Dr. Freshour could not identify who inflicted the injuries on [the Child], however[,] Father argues that [the Child]’s babysitter must have done so. DCS relies upon [the Presumption Statute,] Indiana Code section 31-34-12-4.

10. DCS does not have to prove that a parent inflicted the injuries upon [the Child] as Father has argued. DCS presented evidence to establish the rebuttable presumption that [the Child] is a child in need of services due to her unexplained and nonaccidental injuries. Moreover, the Court finds that Father failed to overcome that presumption.

11. Father testified that he does not require any treatment or services, that he would not engage in mental health therapy on his own. Father accepts no responsibility for the domestic violence in his home—indeed he denies it exists at all despite evidence to the contrary. Father was disengaged with DCS and service providers until right around the time of the factfinding hearing, which this Court believes evidences a lack of serious engagement with improving the conditions of [the Child's] health and safety.

12. As to Mother, the Verified Petition and Preliminary Inquiry demonstrate domestic violence is present in [the Child's] home, that [the Child's] serious injuries were nonaccidental, intentionally inflicted, and remain unexplained. The filings show that the statutory presumption applies to Mother, and Mother has not presented evidence to rebut the presumption.

13. Parents are unable to meet [the Child's] needs as of the time of Factfinding and the coercive intervention of the Court is necessary to ensure that [the Child's] needs are met in the future.

14. While Father presented testimony by service providers and the GAL that they have no present safety concerns, those opinions were unpersuasive. The GAL had only visited [the Child] once and also held a virtual visit with parents; this is insufficient contacts to form an opinion upon which the Court can confidently rely. The family preservation services provider also had minimal interactions upon which the Court can find her opinion persuasive. And while the visit facilitator has positive impressions of the parents’ interactions with [the Child], those have only been on court-ordered supervised visitations. This is a positive report, but not one that convinces the Court that parents are able to meet [the Child's] needs now or in the future without Court intervention. Rather these reports show at most that parents are engaging with services and might be successful in meeting [the Child's] needs with the support of continued interventions.

Appellant's App. Vol. II pp. 105-06.

[15] The trial court held a dispositional hearing on February 20, 2024. The trial court ordered the Parents to participate in home-based therapy and a parenting assessment; Father was ordered to complete domestic violence services. Father now appeals.

Discussion and Decision

I. Admission of Evidence—Domestic Violence Testimony

[16] Father argues that the trial court erred by admitting the testimony regarding domestic violence in the home. We review challenges to the admission of evidence for an abuse of the trial court's discretion. Combs v. State, 168 N.E.3d 985, 990 (Ind. 2021). We will reverse only where the decision is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights. Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013).

[17] Here, law enforcement officers testified regarding two instances of domestic violence in the home, both of which occurred during the same year as the CHINS proceedings here. In one instance, Father pushed Mother while he was holding the Child. In the other, Father smashed Mother's phone, punched her in the face, and grabbed her neck.

[18] Father argues that the testimony was inadmissible because it was irrelevant and prejudicial. Pursuant to Evidence Rule 402, relevant evidence is generally admissible, whereas “[i]rrelevant evidence is not admissible.” Evidence is relevant if: “(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Evid. R. 401. Even relevant evidence may be excluded “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” Evid. R. 403.

[19] We conclude that the trial court did not abuse its discretion here. 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) (citing In re N.E., 919 N.E.2d 102, 106 (Ind. 2020)). DCS alleged that the Child was a CHINS, in part, due to domestic violence in the home, and the officers’ testimony showed that the Child was present during at least one physical altercation between the Parents. Under these circumstances, the trial court did not abuse its discretion by determining that the testimony was relevant and that its prejudice did not substantially outweigh its probative value. The trial court, thus, did not abuse its discretion by admitting the testimony.

II. CHINS Adjudication—CHINS Presumption Statute

[20] Father next argues that the trial court erred by adjudicating the Child to be a CHINS under the Presumption Statute, Indiana Code Section 31-34-12-4. “ ‘Appellate deference to the determinations of our trial court judges, especially in domestic relations matters, is warranted because of their unique, direct interactions with the parties face-to-face, often over an extended period of time.’ ” Hahn-Weisz v. Johnson, 189 N.E.3d 1136, 1141 (Ind. Ct. App. 2022) (quoting Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011)). “ ‘Thus enabled to assess credibility and character through both factual testimony and intuitive discernment, our trial judges are in a superior position to ascertain information and apply common sense, particularly in the determination of the best interests of the involved children.’ ” Id. (quoting Best, 941 N.E.2d at 502).

[21] Here, we are dealing with a CHINS proceeding. Where, as here, the trial court enters findings of fact and conclusions thereon in granting the CHINS petition, “we apply the two-tiered standard of whether the evidence supports the findings, and whether the findings support the judgment.” In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). We will reverse a CHINS determination only if it is clearly erroneous. In re D.J., 68 N.E.3d 574, 578 (Ind. 2017). On review, we neither reweigh the evidence nor judge the credibility of the witnesses. Id. at 577-78.

[22] Generally, DCS must prove three elements for a juvenile court to adjudicate a child to be a CHINS: (1) the child is under the age of eighteen; (2) that one of eleven different statutory circumstances exist that would make the child a CHINS; and (3) the child needs care, treatment, or rehabilitation that he or she is not receiving and is unlikely to be provided or accepted without the coercive intervention of the court. Id. at 580. Ordinarily, DCS must prove these elements by a preponderance of the evidence. Ind. Code § 31-34-12-3.

[23] The Presumption Statute, Indiana Code Section 31-34-12-4, however, provides, that:

A rebuttable presumption is raised that the child is a child in need of services because of an act or omission of the child's 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.

[24] As this Court has explained:

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.

Ind. Dep't of Child Servs. v. J.D., 77 N.E.3d 801, 807 (Ind. Ct. App. 2017), trans. denied. “DCS need only produce some relevant and admissible evidence tending to establish the elements of the Presumption Statute in order to shift the burden of production to the parents or custodians.” Id. at 809.

[25] We conclude that the trial court did not clearly err by adjudicating the Child to be a CHINS pursuant to the Presumption Statute. According to Dr. Freshour, all of the Child's injuries were the result of non-accidental causes. The Child had fractures to her leg and arm bones as well as bruises to her chest and face. The arm fractures showed signs of healing, indicating that they were sustained prior to the leg injury. The Parents, however, did not take the Child to the hospital until she sustained the leg injury. Additionally, domestic violence was occurring in the home; one altercation occurred when the Child was present, and the other involved Father punching Mother in the face and grabbing her neck.

[26] The Babysitter informed DCS that she had been reporting concerns to Mother regarding the Child's health since the first day she began babysitting the Child. She advised Mother to take the Child to the hospital earlier in the week, but Mother planned to wait until the Child's next scheduled check-up. And on the day of the Child's leg injury, although Mother usually picked up the Child from the Babysitter at 3:00 p.m., Mother did not take her to the hospital until approximately 8:00 p.m.

[27] Father argues that the Child could have been injured in the Babysitter's care; however, we cannot reweigh the evidence. Father also argues that the trial court erred by adjudicating the Child to be a CHINS based upon domestic violence in the home. He argues that DCS did not introduce evidence regarding “the impact of the child witnessing the violence.” Appellant's Br. p. 19. Father relies on cases discussing the sufficiency of domestic violence evidence under Indiana Code Chapter 31-34-1-1. Because the trial court here determined that the Child was a CHINS under the Presumption Statute, the trial court could presume the Child was a CHINS without separately addressing Indiana Code Section 31-34-1-1. See In re K.Y., 145 N.E.3d 854, 861 (Ind. Ct. App. 2020) (“[T]he rebuttable presumption that a child is a CHINS applies to all the statutory CHINS elements in chapter 1.”). The Presumption Statute, moreover, is concerned with a child's unexplained injuries, not the witnessing of domestic violence, and the domestic violence here was relevant to the Child's injuries.

[28] Lastly, Father argues that the trial court clearly erred by finding that the coercive intervention of the court was necessary. The Presumption Statute, however, applies to all of the CHINS elements, “including the ‘coercive intervention’ element.” Id. (quoting J.D., 77 N.E.3d at 809), trans. denied. Although Father argues that the coercive intervention of the court was not necessary because the Parents planned to stop taking the Child to the Babysitter, the trial court was not required to believe that this would resolve concerns regarding the Child's unexplained injuries. Rather, the trial court could properly find that the Parents required services to ensure the health and safety of the Child.

[29] From the evidence adduced at the fact-finding hearings, sufficient evidence exists that the Child sustained some or all of her injuries while in the Parents’ care and that the Parents failed to overcome the presumption that the Child was a CHINS. The trial court did not clearly err by adjudicating the Child to be a CHINS.

Conclusion

[30] The trial court did not abuse its discretion by admitting testimony regarding domestic violence in the home, nor did it clearly err by adjudicating the Child to be a CHINS. Accordingly, we affirm.

[31] Affirmed.

FOOTNOTES

1.   The Child's mother, Sy.J. (“Mother”), does not participate in this appeal.

2.   The Babysitter's name is unclear from the record.

Tavitas, Judge.

Crone, J., and Bradford, J., concur.