IN RE: M.Y. (Minor Child in Need of Services) and M.Y. (Father) (2024)

MEMORANDUM DECISION

Case Summary

[1] Following factfinding and dispositional hearings and orders, M.Y. (“Father”) appeals the trial court's order adjudicating his child, M.Y., Jr., (“Child”) a Child in Need of Services (“CHINS”). He purports to raise three issues on appeal, which we consolidate and restate as the following dispositive issue: whether there was sufficient evidence to support the determination that Child is a CHINS.¹

[2] We affirm.

Facts and Procedural History

[3] Father has a history of committing domestic violence against Mother. Maternal Grandmother recounted three specific incidents of such domestic violence. In the first, Mother was sitting in a chair by the wood stove and Father tipped over a chair to scare her, causing Mother to burn both her palms on the stove “really badly.” Tr. at 100. Father refused Mother's request that he take her to the hospital, so she attended to the burns by holding cold cans of soda on them over the next several hours. Maternal Grandmother observed Mother's hands over the phone through Facetime approximately an hour after the burn, and “[t]hey were beat red [sic] and the skin was literally peeling easily, peeling off of her hands.” Id. at 109.

[4] In a second incident, Mother called Maternal Grandmother and told her Father “had ripped a chunk of her hair out in front of her head and ․ chased her through the yard.” Id. at 97. Mother made it into the neighbor's house where she called Maternal Grandmother. Maternal Grandmother then picked up Mother from the neighbor's house.

[5] In a third incident, Mother was “hysterical” when she called Maternal Grandmother and said that Father had dragged Mother through the house, picked her up and slammed her “a bunch of times,” and ripped off her bra. Id. at 96-97. That night Father had also slammed Mother's head into the windshield of a truck, threw her out of the truck, and then “tried to take off with [Child].” Id. at 99. Mother was able to get to her car, lock the doors, and call Maternal Grandmother. Maternal Grandmother then went to Parents’ home and called the police.

[6] Sometimes, in order to call Maternal Grandmother, Mother would have to take a bath or call when Father was not home. Mother had hung up on Maternal Grandmother before when Father came home.

[7] During one of the times Maternal Grandmother went to Parents’ home after she had received a call from Mother about Father “slamm[ing] her onto the ground” or “pushing her,” Maternal Grandmother believed Father was using illegal substances. Id. at 95. When she got to the home, she observed Father sitting on a couch with “a syringe down by his foot.” Id. at 96. He was “slurring [his speech] real bad [sic], almost like he was falling asleep.” Id. at 111. Father “was kind of slumped over like he had just shot up.” Id. at 104. Child's half-sibling, minor child A.Y., was on Father's lap when he was sitting on the porch slumped over.² Father's demeanor on other occasions had also led Maternal Grandmother to believe he was using drugs.

[8] On one occasion, Maternal Grandmother texted Father and asked him to “please leave [her] daughter alone.” Id. at 107-08. Father then threatened Maternal Grandmother, stating that he was going to “show up” at her place of employment and “bust [her] head.” Id. at 108. He also threatened to “tie a chain to [her] truck and drag it through the parking lot.” Id.

[9] In September 2023, Father burned then-four-month-old Child with a torch lighter, leaving a severe burn on Child's stomach. Mother testified that Child had been lying on the bed with Mother when Father bent over to kiss Child because he was leaving and burned Child with the torch lighter. Father typically used the torch lighter for lighting the wood stove and cigarettes. Parents did not seek medical care for Child, but instead, Mother applied burn gel and ice. Mother took a photograph of the burn about ten minutes after it had occurred.³

[10] In December 2023, while assessing a “suspicious burn” on Child's minor sibling, A.Y., the Indiana Department of Child Services (“DCS”) learned about the burn Child had sustained in September. Id. at 27. On December 29, Family Case Manager (“FCM”) Susan Kennedy spoke to Mother at the family home. Mother answered the door, said Father was in the bathroom, closed the door, and then another man came back and said to set up an appointment because Father was busy. Father refused to speak with FCM Kennedy during the subsequent assessment. FCM Kennedy was not provided any “plausible explanation” for how Child sustained the burn. Appealed Order, ¶5.

[11] On January 3, 2024, FCM Ladonna Sanders went with FCM Kennedy to Parents’ home. At that time, Mother told FCM Sanders about the incident during which Father had burned Child with a lighter. Mother informed the case managers how she treated Child's burn, and she stated she did not call 9-1-1 because “she was freaking out” and did not have a car to take Child to the hospital. Tr. at 70.

[12] During the assessment, DCS was concerned about domestic violence between Parents. FCM Kennedy also discovered that Father previously had committed domestic violence against the mother of A.Y. When addressing domestic violence, DCS would normally work with a parent to resolve its concerns, but Parents were not cooperating. Parents had sent FCM Kennedy a text message during the assessment saying they would not cooperate with DCS and that they would “move away.” Id. at 38. At the end of her assessment, FCM Kennedy substantiated the “high suspicion” of domestic violence between Parents, illegal drug use by Father, and physical abuse to Child. Appealed Order, ¶9.

[13] Due to concerns regarding Child's safety while in Parents’ care and their refusal to cooperate, DCS recommended that Child be removed from their care and placed with Maternal Grandparents. DCS was concerned about domestic violence in the home, drug use by Father, and “the unexplained injuries the children in the home had suffered.” Id., ¶6. DCS petitioned to adjudicate Child a CHINS, alleging he was a CHINS under Indiana Code sections 31-34-1-1 and 31-34-1-2, and that the rebuttable presumption under Indiana Code section 31-34-12-4 applied. The court thereafter authorized Child's removal from Parents’ care.

[14] In the meantime, DCS had referred Father to services. FCM Justice Nielsen referred Father to domestic violence services and provided Father with information regarding the services. However, FCM Nielsen had not received any indication that Father engaged in these services. She also referred Father to a family functioning assessment to identify any underlying needs the family may have so those could be addressed, but Father did not engage in that service either. FCM Nielsen referred Father to parenting time with Child, but Father failed to visit with Child despite FCM Nielsen providing him with the information for doing so. The visitation provider eventually discharged the family from visitation services.

[15] Father was not communicative with DCS. FCM Nielsen made multiple attempts to communicate with Father by phone calls and text messages, but Father was mostly non-responsive. FCM Nielsen was successful in communicating with Father one time, and during that call he made it clear that he “wants nothing to do with DCS” and that “he did nothing wrong.” Tr. at 83.

[16] On February 27, the parties initially met for a factfinding hearing, but the court continued the hearing over the objection of DCS, Mother, and the Guardian ad Litem (“GAL”) in order to appoint Father counsel. On March 26, the court held a factfinding hearing at which Father failed to appear but was represented by counsel. Mother entered an admission that Child “is a minor child in need of services pursuant to Indiana Code [Section] 31-34-1-1, because Mother [ ] needs assistance maintaining a stable home free from domestic violence. Therefore, the coercive intervention of the court is necessary.” Id. at 20.

[17] At the time of the factfinding hearing, Mother had begun the process of obtaining a protective order against Father. However, Father continued to contact Mother by “chang[ing] his phone number through different apps.” Id. at 86. Father sent Mother messages in which he threatened to kill himself.

[18] After hearing evidence, the court issued findings of fact and conclusions thereon and adjudicated Child a CHINS under Indiana Code Sections 31-34-1-1 and 31-34-1-2. The court concluded that the domestic violence between Parents and Father's substance abuse issues supported a CHINS finding. In addition, the court concluded, in part, that:

30. [Child] is a minor child who was seriously endangered by a burn he sustained and for which he never received professional treatment. The child sustained the burn due to the act of [Father], or through an omission on his part while he had care, custody, and control of the child. Moreover, the subsequent failure to seek medical treatment for the burn constitutes a serious endangerment of the child's health.

31. ․ While the evidence suggested that [Child's] burn occurred months prior to the filing of the CHINS petition, there is evidence in this case to support that [C]hild's sibling, [A.Y.], [more recently] suffered a similar injury, a burn, in [Father's] care.

* * *

33. [Child] suffered a burn while in the care and custody of [Father], who had the legal responsibility for the care, custody, and control of the child at the time. The burn was the type and severity such that it would not ordinarily have been sustained except by an act or omission of a parent or caregiver, and there is a reasonable probability that the injury was not accidental. Therefore, there is a presumption that the child is a child in need of services under 31-34-12-4.

Appealed Order at 4-5. The court also concluded that Father had failed to rebut the presumption under Indiana Code Section 31-34-12-4.

[19] In its dispositional and parental participation decrees, the court ordered Father, in pertinent part, to complete a parenting assessment, a family functioning assessment, and a substance abuse assessment and all recommended services from those assessments; submit to random drug screens; participate in a domestic abuse program; and participate in fatherhood engagement. Child continued to be placed with Maternal Grandparents. This appeal ensued.

Discussion and Decision

Standard of Review

[20] The juvenile court adjudicated Child to be a CHINS pursuant to 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.

[21] The court further found Child to be a CHINS pursuant to Indiana Code Section 31-34-1-2(a), which provides:

(a) 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 health is seriously endangered due to injury by the act or omission of the child's 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.

[22] Moreover, the court found there was a rebuttable presumption under Indiana Code Section 31-34-12-4 that Child was a CHINS due to the act or omission of Father because the State had introduced competent evidence of probative value that:

(1) the child ha[d] 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 [have been] 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.

Id. The court further found that Father had “not presented evidence sufficient to rebut the presumption of a CHINS created by I.C. 31-34-12-4.” Appealed Order, ¶34.

[23] In reviewing a CHINS determination, we do not reweigh evidence or assess witness credibility but consider only the evidence in favor of the juvenile court's judgment, along with any reasonable inferences arising therefrom. E.g., Matter of N.C., 72 N.E.3d 519, 523 (Ind. Ct. App. 2017). When the trial court enters findings of fact and conclusions thereon, we apply a two-tiered standard of review to the issues covered by the findings: we consider, first, whether the evidence supports the findings and, second, whether the findings support the judgment. Ind. Trial Rule 52(A); In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). Unchallenged findings stand as proven. See, e.g., In re A.M., 121 N.E.3d 556, 562-63 (Ind. Ct. App. 2019), trans. denied.

[24] However, “we 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.” In re S.D., 2 N.E.3d at 1287. (quotation marks and citation omitted). Under the general judgment standard of review, the reviewing court “may look both to other findings and beyond the findings to the evidence of record to determine if the result is against the facts and circumstances before the court.” C.B. v. B.W., 985 N.E.2d 340, 344 (Ind. Ct. App. 2013), trans. denied. In deference to the trial court's proximity to the issues, an appellate court will “disturb the judgment only where there is no evidence supporting the findings or the findings fail to support the judgment.” In re Guardianship of B.H., 770 N.E.2d 283, 287-88 (Ind. 2002) (quotations and citations omitted).

Findings of Fact

[25] Father does not challenge most of the trial court's findings of fact, and those unchallenged findings stand as proven. See A.M., 121 N.E.3d at 562-63. However, Father does challenge finding of fact number ten, which states: “[Father] burned [Child] with a torch lighter. [Father's] actions caused injury, a burn, to the child. [Mother's] explanation that the burn was a result of an accident was not credible.” Appealed Order at 2. Father asserts that finding ten “is unsupported by the evidence.” Appellant's Br. at 20.

[26] There was evidence that Father had burned Child, and the photograph of Child's burn shows that it was severe. See Ex. at 4. There was also evidence that Father had burned Mother in the past and had burned one of his other children, A.Y., on a separate and more recent occasion. And, although Mother testified that Father had accidentally burned Child, there was also evidence that Mother was afraid of Father, who had violently harmed her by burning her palms and committing other acts of domestic abuse in the past. That evidence supported the trial court's finding that Mother's testimony was not credible when it came to making statements that might incriminate Father. The trial court was not required to credit Mother's testimony on this point, and it did not. See Wood v. State, 999 N.E.2d 1054, 1064 (Ind. Ct. App. 2013) (“The factfinder is obliged to determine not only whom to believe, but also what portions of conflicting testimony to believe, Atwood v. State, 905 N.E.2d 479, 484 (Ind. Ct. App. 2009), trans. denied, and is not required to believe a witness’ testimony even when it is uncontradicted.” Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004).”), trans. denied. And we may not reweigh the evidence or judge witness credibility, as Father asks us to do. See Matter of N.C., 72 N.E.3d at 523.

[27] Finding ten was supported by the evidence.

Sufficiency of Evidence that Child is a CHINS

[28] The aim of a CHINS inquiry, in general, is to determine if a child's circumstances require services that are unlikely to be provided absent court intervention. Matter of K.Y., 145 N.E.3d 854, 860 (Ind. Ct. App. 2020), trans. denied. Courts should consider the family's condition not only at the time the CHINS case was filed, but also when the case is heard at the factfinding hearing. Gr.J. v. Ind. Dep't of Child Servs. (In re D.J.), 68 N.E.3d 574, 580 (Ind. 2017). DCS has the burden of proving by a preponderance of the evidence that the child is a CHINS. See, e.g., J.J. v. Ind. Dep't of Child Servs. (In re K.S.), 78 N.E.3d 740, 744 (Ind. Ct. App. 2017). DCS may not simply rely upon allegations; rather, it must gather the facts and the evidence to support its CHINS petition. D.B. v. Ind. Dep't of Child Servs. (In re D.B.), 43 N.E.3d 599, 606 (Ind. Ct. App. 2015), trans. denied. However, the courts are not required to wait until a tragedy occurs to intervene. In re C.K., 70 N.E.3d 359, 364 (Ind. Ct. App. 2016), trans. denied.

[29] Here, there was sufficient evidence of Father's substance abuse and domestic violence to support the trial court's ultimate finding that Child is a CHINS pursuant to Indiana Code Sections 31-34-1-1 and 31-34-1-2. There was evidence that Father had “shot up” drugs with a syringe and was so high that he was slumped over and unable to adequately communicate while he had a child, A.Y., sitting on his lap. Tr. at 104. There was additional evidence that Father had used drugs at the home on other occasions. And there was evidence that Father refused to engage in any services that would assist him in overcoming illegal drug use. From this evidence, the court could reasonably infer that coercive court intervention was necessary to ensure Child is raised in a safe, drug-free environment. We have found similar evidence to be sufficient to show endangerment to a child, requiring the intervention of the court. See, e.g., In re D.L., 814 N.E.2d 1022, 1029 (Ind. Ct. App. 2004), trans. denied.

[30] There was also evidence of repeated incidents of violent domestic abuse by Father against Mother and at least one instance when Child was in Parents’ presence during the domestic abuse. “Children exposed to domestic violence are more likely to suffer significant psychological and developmental issues.” S.H. v. D.W., 139 N.E.3d 214, 216 (Ind. 2020). Even “a single incident of domestic violence in a child's presence may support a CHINS finding, and it need not necessarily be repetitive.” M.P. v. Ind. Dep't of Child Servs. (Matter of D.P.), 72 N.E.3d 976, 984 (Ind. Ct. App. 2017); see also In re N.E., 919 N.E.2d 102, 106 (Ind. 2010) (finding the evidence sufficient to support a CHINS determination where children were exposed to domestic violence committed against their mother). And the evidence established that Father refused to engage in any domestic violence services; therefore, Child's circumstances require services that are unlikely to be provided absent court intervention. See I.C. § 31-34-1-2(a)(2).

[31] The evidence of Father's use of drugs while caring for his children and repeated instances of domestic violence against Mother—at least one of which was in Child's presence—and his unwillingness to address those issues by engaging in offered services is sufficient to support the ultimate finding that Child is a CHINS under Indiana Code Sections 31-34-1-1 and 31-34-1-2.

[32] There was also sufficient evidence to support the trial court's finding of an unrebutted presumption that Child is a CHINS pursuant to Indiana Code Section 31-34-12-4. DCS presented competent evidence of probative value that Child's stomach was severely burned while Child was in Father's care and custody and Parents sought no medical treatment for the burn; that such a burn would not ordinarily be sustained and/or go untreated, medically, absent the act or omission of a parent; and that there was a reasonable possibility that the injury and subsequent failure to seek medical treatment was not accidental.

[33] Father challenges only the latter factor. However, “[t]he manner in which Child was injured, and specifically whether the injuries were non-accidental, is a question of fact.” Ind. Dep't of Child Servs. v. J.D., 77 N.E.3d 801, 808 (Ind. Ct. App. 2017), trans. denied. As already discussed regarding finding of fact number ten, there was evidence to support the trial court's finding that Mother's testimony that the burn was an accident was not credible. Moreover, there was evidence that the burn was severe, but Parents failed to seek medical treatment for it. Those findings support the trial court's conclusion that there was a reasonable possibility that Child's injury and Father's subsequent failure to seek medical treatment was not accidental. Father's contention to the contrary is merely a request that we reweigh the evidence and judge witness credibility, which we may not do. See Matter of N.C., 72 N.E.3d at 523.

Conclusion

[34] There was sufficient evidence to support the trial court's findings of fact, and those facts support the trial court's ultimate findings that: (1) Child is a CHINS pursuant to Indiana Code Sections 31-34-1-1 and 31-34-1-2, and (2), there was an unrebutted presumption that Child is a CHINS pursuant to Indiana Code Section 31-34-12-4.

[35] Affirmed.

FOOTNOTES

1.   T.L. (“Mother”) admitted that Child is a CHINS, and Mother does not participate in this appeal.

2.   A.Y. is not Mother's child, and A.Y. is not involved in this CHINS proceeding.

3.   That photograph was admitted, without objection, at the subsequent CHINS factfinding hearing for Child. See Ex. at 4.

Memorandum Decision by Judge Bailey

Judges Bradford and Foley concur. Bradford, J., and Foley, J., concur.