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In re Q.J.

Court of Appeals of Indiana

January 17, 2018

In the Matter of: Q.J., Jr., Q.J., Bre.J., Ba.J., Bri.J., and Bro.J., Children in Need of Services, Q.J., Sr. (Father), Appellant-Respondent,
Indiana Department of Child Services, Appellee-Petitioner .

         Appeal from the Hamilton Superior Court, The Honorable Todd L. Ruetz, Magistrate, The Honorable Steven R. Nation, Judge Trial Court Cause Nos. 29D01-1608-JC-1036, 29D01-1608-JC-1037, 29D01-1608-JC-1039, 29D01-1608-JC-1040, 29D01-1608-JC-1041, 29D01-1608-JC-1042

          Attorney for Appellant Trenna S. Parker Trenna S. Parker Law Office, P.C. Noblesville, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana David E. Corey Deputy Attorney General Indianapolis, Indiana

          NAJAM, JUDGE.

         Statement of the Case

         [¶1] Q.J., Sr. ("Father") appeals the trial court's adjudication of his six minor children as children in need of services ("CHINS").[1] The Children are: Q.J., Jr., born September 11, 2001; Q.J., born December 28, 2002; Bre.J., born May 19, 2005; Ba.J., born December 31, 2008; Bri.J., born June 25, 2011; and Bro.J., born May 17, 2013, ("the Children").[2] Father raises four issues for our review, which we restate as the following three issues:

1. Whether the trial court abused its discretion when it allowed Dr. Demetris to testify as to statements Q.J., Jr. had made to her during her examination of him.
2. Whether there was sufficient evidence to support the trial court's adjudication of the Children as CHINS.
3. Whether Father was denied the effective assistance of counsel.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] On August 24, 2016, Q.J., Jr., who was fourteen years old, ran away from home. Father and B.J. ("Mother") filed a report with the Carmel Police Department. Officer Blake Lytle responded to the call and first observed Q.J., Jr. that night wearing a black shirt and blue boxers. When Q.J., Jr. saw Officer Lytle, he ran. Q.J., Jr. eluded officers until the next morning. On August 25, officers located Q.J., Jr. and discovered that he had slept under a box in the woods. Q.J., Jr. had two stolen backpacks with him that were filled with stolen food. Officer Lytle was present when officers located Q.J., Jr. Officer Lytle observed Q.J., Jr. limping, so he arranged for a medic to examine him. Officer Lytle thought that Q.J., Jr. appeared skinny and he was concerned that Q.J., Jr. was being abused, so he notified his supervisor in order to have a detective interview Q.J., Jr. While the medics examined him, Q.J., Jr. told Officer Lytle that "things were going on at home." Tr. Vol. III at 35.

         [¶4] Master Patrolman David Vanderbeck was also on the scene when officers located Q.J., Jr. Officer Vanderbeck was shocked by Q.J., Jr.'s appearance. He observed that Q.J., Jr. was "just like skin and bones. He was really small." Id. at 18. Officer Vanderbeck was concerned about Q.J., Jr.'s health and well-being, so he also called the fire department to have the medics examine him. When Officer Vanderbeck asked Q.J., Jr. why he ran away, Q.J., Jr. got "all teary-eyed and stuff" and said he "was too scared to tell [Officer Vanderbeck] because his mom and dad would find out what he told [Officer Vanderbeck]." Id. at 19. Officer Vanderbeck suggested to Sergeant Brady Myers that their investigation division be notified about the situation. Sergeant Myers contacted Detective Nancy Zellers. Officer Vanderbeck then transported Q.J., Jr. to the police station.

         [¶5] After Q.J., Jr. arrived at the police station, Detective Zellers conducted a forensic interview of him. During the interview, Q.J., Jr. described abuse he and his siblings endured at home. He said that there were cameras set up in the home to monitor their behavior and that they were denied ready access to food, which was kept in the master bedroom closet. Q.J., Jr. also said that he was being abused and that "food was being withheld and that he was being beaten." Tr. Vol. II at 243. Detective Zellers stated that Q.J., Jr. "did not have the appearance of being a well-nourished child." Id.

         [¶6] At the police station, Detective Zellers spoke with Mother. Mother told Detective Zellers that "she was frustrated, that . . . [Q.J., Jr.] was ruining their lives." Id. at 225. She further said that Q.J., Jr. "was evil, he was a liar, he was a kleptomaniac because he stole food from their pantry, he stole food from dumpsters and ate it." Id. Based on Mother's description of the events, Detective Zellers became concerned that Q.J., Jr. was being neglected and abused. Detective Zellers determined that Q.J., Jr. should be taken to the hospital because "he did not look well. He appeared emaciated and just did not look well, sunken eyes." Id. at 224-25.

         [¶7] Detective Zellers obtained a search warrant for Mother and Father's home to corroborate Q.J., Jr.'s statements. Detective Zellers executed the search warrant on the evening of August 25 and found cameras in the home, but there were no stored images. Another officer determined that there was food in the master closet.

         [¶8] Peyton Lill, a Family Case Manager ("FCM") with the Indiana Department of Child Services ("DCS"), was assigned to investigate the safety and well-being of the Children after she received a report that Q.J., Jr. had run away and that there was physical abuse. Lill went to the police station and interviewed Q.J., Jr. On August 27 at approximately 3:00 P.M., Lill was able to speak with all of the Children except Q.J., Jr. All five of them said they had not yet eaten on that day.

         [¶9] After Zellers and Lill interviewed Q.J., Jr., he was transported to the hospital and admitted. On August 26, Doctor Cortney Demetris evaluated him. Dr. Demetris was concerned about Q.J., Jr.'s "weight and malnutrition as well as some injuries and some lab abnormalities." Id. at 96. Dr. Demetris' initial concern was that Q.J., Jr. was malnourished because "he was so underweight and he was so small for his age and he had laboratory findings that were consistent with malnourishment." Id. at 99. When he was admitted to the hospital, Q.J., Jr. weighed approximately seventy-two pounds. Dr. Demetris reviewed the results of laboratory work that had been done on Q.J., Jr. Dr. Demetris found that Q.J., Jr. had "an elevated CPK[, ] which is an enzyme that is released from the muscle if there's time when the muscle is damaged or stressed. He also had a very low prealbumin[, ] which is a marker for nutritional status, specifically as it relates to proteins and protein malnutrition." Id. at 107. In addition to her concerns about malnourishment, Dr. Demetris also observed an abrasion on Q.J., Jr.'s chin; some tenderness and swelling on his ankle; and some bruising over his lower back, the top of his buttocks, on one of his hips, and on his chest.

         [¶10] On August 26, and on two other occasions, Dr. Demetris spoke with Mother about Q.J., Jr. Mother stated that Q.J., Jr. would eat fruit for breakfast, a Lunchable or leftovers with some chips for lunch, and a homecooked meal or dinner out with the family for dinner. Mother further stated that Q.J., Jr. would frequently steal and exhibit other difficult behaviors and that she "was going to provide him with the kind of basic three meals a day and he would not be allowed to have any extra as a result of negative consequences for these behaviors that he was exhibiting." Id. at 119. Mother told Dr. Demetris that Q.J., Jr. would steal food and eat food out of trash cans. She said that he would also steal nonfood items like protein powder from Mother's purse. Dr. Demetris asked Mother if, based on his degree of malnutrition, Mother felt he was stealing food because he was starving. Mother said she "felt that [Q.J., Jr.] was getting enough food each day[.]" Id. at 121. Mother said she was not going to give him any extras beyond three meals a day, which Mother said is "the minimum she was required to provide him as his parent[.]" Id. at 122. Mother also told Dr. Demetris that the Children can have extra food if they speak up about their siblings' misbehaviors. Dr. Demetris was concerned about Q.J., Jr.'s siblings "based on the history that was provided to me by [Q.J., Jr.] and his mother." Id. at 128. Dr. Demetris recommended that the other children be evaluated to determine if they were malnourished or if they had any injuries consistent with physical abuse.

         [¶11] A few days later, Dr. Demetris examined Q.J., Jr.'s brother, Q.J., who was thirteen years old. When Dr. Demetris examined Q.J., he had already been admitted to the hospital because of malnutrition. Dr. Demetris was concerned about Q.J.'s weight. She was also able to observe bruising on the lower part of his back and scratches around his ankles or lower extremities. Dr. Demetris examined Q.J. and ran tests, but she was not able to speak with Q.J.'s parents because they were unavailable. Q.J. provided Dr. Demetris with very little history. However, based on Q.J., Jr.'s history and the statements Mother made to Dr. Demetris at the time Dr. Demetris examined Q.J., Jr., Dr. Demetris was concerned about Q.J. Q.J. did not specifically talk to Dr. Demetris about exercise, but Q.J. told the admitting team that his exercise involved "several hundred repetitions of certain exercise movements and lasting several hours." Id. at 139. Dr. Demetris ran diagnostic tests on Q.J. Q.J.'s prealbumin levels were on "the low end of normal, being 18 in our lab, 18 being the low end of normal, 17 being considered abnormal, and his was 18." Id. He also had elevated liver function tests and low Vitamin D levels. Based on the tests, Dr. Demetris diagnosed Q.J. with moderate to severe malnutrition with no underlying medical condition that could explain it. Dr. Demetris was also concerned about the bruises she found on Q.J. based on the history provided by Q.J., Jr. Q.J. was discharged from the hospital after a few days. On September 14, Q.J., Jr. was discharged from the hospital after Dr. Demetris saw significant improvement in his weight. On that date, he weighed eighty-seven pounds and twelve ounces.

         [¶12] In the meantime, on August 30, 2016, DCS filed CHINS petitions for each of the Children. On that same day, the trial court held a detention hearing. After the hearing, the trial court found that Q.J., Jr. should continue to remain outside of Mother and Father's home, and the trial court ordered the removal of the five other children. Also on August 30, the State charged both Mother and Father with two counts of neglect of a dependent, as Level 6 felonies, based on the Boys' malnutrition. The State later added a third charge against Mother and Father for neglect of a dependent resulting in bodily injury, as a Level 5 felony, due to Q.J., Jr.'s severe malnutrition.

         [¶13] On November 17, Dr. Sarah Szerlong conducted a clinical interview and assessment of Bre.J. and Ba.J. After the assessments, Dr. Szerlong completed a report for each of the girls. In her report for Bre.J., Dr. Szerlong wrote that Bre.J. had reported that "her parents would make her brothers, [Q.J., Jr. and Q.J., ] work 'really hard and do chores until 4 in the morning.'" Ex. at 108. She had further stated that "her parents would sometimes make her brother run around outside and would smack him up on the head." Id. Further, Bre.J. reported that her father "becomes angry easily and has a history of smacking her brother." Id. Bre.J. had also reported "witnessing her father hit her brothers and engage in corporal punishment, and witnessing verbal arguments between her parents." Id. at 113. In her report for Ba.J., Dr. Szerlong reported that Ba.J. had "shared that her parents have a history of domestic disputes, one where her mother reportedly held a knife and scissors up to her father's neck. She acknowledged feeling fearful when witnessing this and other domestic violence between her parents." Id. at 118. Ba.J. had also reported that Father "has 'whooped' her on several occasions." Id. Ba.J. had "reported incidents of domestic violence between her parents occurred multiple times." Id. at 119. Ba.J. had also "stated she has seen her mother attempt to kill her brother, [Q.J., Jr.]." Id. at 122. Dr. Szerlong's report indicated that "[Ba.J.] is struggling with a variety of depression, anxiety, and trauma[-]related symptoms." Id. at 125.

         [¶14] In January 2017, Mother requested an independent medical examination of Q.J., Jr. and Q.J. Dr. Amanda Beach examined Q.J. on January 23, and she examined Q.J., Jr. on January 25. For her appointment with Q.J., Jr., Dr. Beach did a complete physical examination and reviewed the discharge notes from the hospital. By the time Dr. Beach examined Q.J., Jr. in January, he had gained thirty-one pounds and had grown two inches since he was discharged from the hospital. When Dr. Beach examined Q.J. in January, he had gained six pounds since he was discharged from the hospital.

         [¶15] On March 3 and March 7, 2017, the trial court held a fact-finding hearing on the CHINS petitions. As a preliminary matter, DCS moved to admit the clinical interview assessments for Bre.J. and Ba.J. Both Mother and Father stated that they did not object, and the trial court admitted the assessments as evidence. During the hearing, DCS presented as evidence the testimony of Officer Lytle; Officer Vanderbeck; Detective Zellers; Dr. Demetris; Dr. Beach; Emily Sabau, Q.J., Jr.'s therapist; Lill; FCM Amanda O'Connell; Bertha Push, the therapist for Bre.J. and Ba.J, ; and Robin Allen, the therapist for Bri.J. and Bro.J.

         [¶16] Dr. Demetris testified during the hearing about her examination and diagnosis of Q.J., Jr. The attorney for DCS asked Dr. Demetris what Q.J., Jr. said was the cause for his malnourishment. Father objected on hearsay grounds, but the trial court overruled his objection. Dr. Demetris testified that she did not specifically ask Q.J., Jr. what had caused his malnourishment but, instead, asked questions about what he ate and what he was offered, but "he gave a history of a fairly limited amount of food availab[le] to him." Tr. Vol. II at 97. Dr. Demetris further testified that Q.J., Jr. "advised that he was restricted from having access to food as a form of punishment" and "that he would be restricted from having lunch, for example, if he was in trouble on that day." Id. Dr. Demetris further testified that Mother gave a history about the amount of food that Q.J., Jr. was provided that was very similar to the history Q.J., Jr. gave.

         [¶17] Dr. Demetris testified that, at almost fifteen years old, Q.J., Jr. weighed approximately seventy-two pounds. She testified that the "average weight for a child of that age is closer to approximately, maybe 130 to 140 pounds." Id. at 108. She also testified that, based on the history Q.J., Jr. gave her regarding his food intake, she concluded that he was eating "less than 50 percent of what was calculated as would be what he would need for his calories for growth." Id. at 113-14. She further testified that she "was not able to find any underlying medical condition that would explain his malnourishment." Id. at 114. Dr. Demetris testified that "it would take weeks to months for [Q.J., Jr.] to have that degree of malnourishment." Id. at 115. She further stated that "he would be at risk for significant negative health complications, including death, if he continued to have that degree of malnutrition in the comings weeks to months." Id. Dr. Demetris testified that Mother did not believe Q.J., Jr. was malnourished, even after Dr. Demetris spoke with her "at some length, making an attempt to help her understand why it was my medical diagnosis that he had severe malnutrition[.]" Id. at 125.

         [¶18] Dr. Demetris testified regarding her examination and diagnosis of Q.J. She testified that when Q.J. was admitted to the hospital, he was significantly below the growth chart for his weight and he was in the 50th percentile for height. She testified that Q.J.'s level of malnutrition "would have taken at least weeks to months." Id. at 140. She further testified that had "he continued to have that degree of malnutrition he was at risk for medical complications, including death[, ] in the weeks to months in the future." Id. She also testified that the malnutrition and the bruises to the back "would not normally be present without an act or omission by the parents." Id. at 141. However, she testified that she could not say for certain that the bruises and scrapes were caused by Mother or Father. Q.J. weighed sixty-two pounds on August 30, 2016. On January 23, 2017, he weighed sixty-eight pounds and 6.4 ounces.

         [¶19] DCS also presented the testimony of Lill, a FCM. Lill testified that Mother had stated that Q.J., Jr. had ruined their lives. Lill further testified that Mother had "stated they use exercise as a discipline method. They take away snacks. And at the time they were taking away his clothes. They thought that it was a good punishment so that he wouldn't run away. He was only allowed to wear his underwear." Tr. Vol. III at 61. Lill testified that she did not recommend returning the Children to the care of Mother and Father "[b]ased on everything that [Q.J., Jr.] was telling me, how severely malnourished [Q.J.] and [Q.J., Jr.] were, the physical abuse, and the marks and bruises on both children, the behaviors of the other children, and specifically the children, what they had to say about [Q.J., Jr.], they all called him evil and they hated him, etcetera." Id. at 86. In regards to the Girls, Lill testified as to what made her decide that they should not go back to their parents. She stated:

So we'll start with [Bri.J.]. She called . . . [Q.J., Jr.] evil multiple times in [her forensic interview]. She stated, and she's five. And she stated that the eating situation and that [Q.J., Jr.] wasn't allowed to eat with them and [Q.J., Jr.] actually had to eat upstairs so that he wouldn't steal their food. And that shocked me because it was a five-year-old. [Bre.J.] said the same thing. She mentioned all the discipline that the parents made [Q.J., Jr.] do and her and [Q.J.]. She also talked about the food restrictions and them stealing food. And [Ba.J.], she mentioned how awful [Q.J., Jr.] was and the discipline and stuff like that so.

Id. at 89-90.

         [¶20] Amanda O'Connell also testified. She was the FCM who was assigned to the case at the end of December 2016. O'Connell testified that she had recommended services, including home-based therapy for both parents, psychological evaluation for both parents, and Father Engagement for Father. However, those referrals were discharged due to noncompliance. She testified that she was not able to recommend that the Children return to the care of their parents out of concerns for their safety. She testified that "for the safety of the children the parents will need to engage in services. The children need to continue with their therapy to address their trauma." Id. at 120.

         [¶21] Bertha Rush is a home-based therapist who has worked with Bre.J. and Ba.J., who are eleven and eight years old, since the end of October 2016. She also testified at the fact-finding hearing. She testified that she works with Bre.J. and Ba.J. to address "some trauma that's been reported to me by the girls." Id. at 127. Rush testified that she would not recommend that Bre.J. and Ba.J. return to the care of their parents because "they still have quite a bit to work through. It's also been told to me by one of the girls that they're not ready to go home yet." Id. at 129.

         [¶22] Finally, DCS presented the testimony of Robin Allen. Allen is a home-based therapist who has worked with Bri.J., and Bro.J., who are five and three years old, since early November 2016. Allen testified that she would not recommend that Bri. J. and Bro.J. return to the care of their parents at this time. She further testified that Bro.J. ...

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