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 .
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,
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
of the Case
Q.J., Sr. ("Father") appeals the trial court's
adjudication of his six minor children as children in need of
services ("CHINS"). 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"). 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
and Procedural History
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.
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
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.
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.
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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. ...