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In re K.A.H.

Court of Appeals of Indiana

February 21, 2019

In the Matter of: K.A.H., a Child in Need of Services, and A.V.U. (Mother), Appellant-Respondent,
The Indiana Department of Child Services, Appellee-Petitioner.

          Appeal from the Allen Superior Court Trial Court Cause No. 02D08-1711-JC-731 The Honorable Richard Karcher, Temporary Judge, The Honorable Sherry Hartzler, Magistrate Judge

          Attorney for Appellant Roberta L. Renbarger Fort Wayne, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana

          Tavitas, Judge.

         Case Summary

         [¶1] A.V.U. ("Mother") appeals from the trial court's finding that her minor child, K.H., is a child in need of services ("CHINS"). We affirm.


         [¶2] Mother raises one issue, which we restate as whether the evidence establishes, by a preponderance of the evidence, that K.H. is a CHINS.


         [¶3] Mother, her boyfriend, M.V. ("Boyfriend"), and Mother's children, M.G. and K.H. lived together in Fort Wayne, Indiana. Mother and Boyfriend had a verbally and physically abusive relationship. M.G. and K.H. often overheard and witnessed Boyfriend's screaming, belittling, and battering of Mother. Still, Mother often left M.G. and K.H. in Boyfriend's care because Mother believed that Boyfriend was only violent with her.

         [¶4] In October 2017, the Allen County Department of Child Services ("DCS") opened an investigation regarding alleged abuse or neglect of then-two-year-old M.G., who had a black eye and exhibited petechiae.[1] Mother told investigators that M.G. had received stitches after falling in the bathtub, and that, after the stitches were removed, the resulting bruising and scarring resembled a black eye. DCS determined that the claim was unsubstantiated and closed the investigation.

         [¶5] On November 28, 2017, Boyfriend babysat M.G. Later that day, M.G. complained to Mother that his head hurt. The following day, Boyfriend again babysat M.G., while K.H. was at school. When K.H. returned from school, Boyfriend would not allow K.H. inside the house despite the cold; Boyfriend insisted that K.H. should play in the backyard. Boyfriend subsequently telephoned Mother to say that M.G. was nonresponsive. M.G. was transported to the hospital, where he was declared deceased.

         [¶6] After M.G.'s death, DCS observed "significant and apparent bruising" on M.G.'s "face, forehead, back, hips and buttocks in multiple stages of healing." App. Vol. II p. 18. An autopsy revealed that M.G. had sustained "multiple blows and strikes from a closed fist," "severe[ ] injur[ies]," and "blunt force trauma to his appendix" before his death.[2] Id. at 15, 20. DCS removed K.H. from Mother's care that day.

         [¶7] On December 4, 2017, DCS filed a petition alleging that K.H. was a CHINS.[3]After a hearing, the trial court ordered that K.H. be placed with her maternal grandparents and granted supervised visits to Mother and A.H. ("Father").

         [¶8] On January 16, 2018, DCS filed a petition to introduce a videotaped forensic interview ("Statement") of K.H. On or about January 30, 2018, the State charged Mother with neglect of a dependent. On March 14, 19, and 23, 2018, the trial court conducted a fact-finding hearing and a hearing to determine whether child hearsay was admissible. On March 23, 2018, the trial court granted DCS' petition to introduce the Statement.[4]

         [¶9] On July 10, 2018, the trial court entered the following findings of fact and conclusions of law:

** * * *
16. The Court finds that the following is undisputed and uncontroverted:
** * * *
i. During the course of Mother's relationship with [Boyfriend], the couple would often fight in the family home for which the fights would range from arguments about bills to cheating accusations.
j. . . .[A]t times [Boyfriend] would physically abuse Mother in the home with the children present in the home by pushing, shoving her to the ground, and hitting her causing her bruising to her back on one occasion. Mother does not dispute that the children would either be on the trampoline or in their rooms within earshot of the fighting.
k. During the course of arguments, [Boyfriend] would hit [Mother] if she could not dodge his punch. [Boyfriend] would frequently confine Mother to the bedroom and prevent her from leaving. [Boyfriend] would strike Mother either with an open hand or closed fist and he would hit her on her head, back and legs.
* * * * *
17. The Court finds that what is disputed is whether the coercive intervention of the Court is required for which the Court finds as follows:
a. Mother has long been the victim of domestic violence by multiple partners.
b. Mother's previous husband, [L.], the father of [Boyfriend[5], was convicted of domestic battery precipitating the end of their marriage.
c. Prior to these current proceedings, Mother had never received any counseling concerning domestic violence.
d. During the course of Mother's intake interview with SCAN (Stop Child Abuse and Neglect) concerning her visitation on December 13, 2017, Mother stated that [Boyfriend] only ever pushed her.
e. Through the testimony of Mother, she claimed that she was only ever concerned with domestic violence if her children actually witnessed the abuse; that [Boyfriend] didn't "get physical" often and "would stop and immediately start to apologize."
f. Through the testimony of Mother, the court finds that Mother contended that [Boyfriend] wouldn't scream at the kids like he screamed at her; that she would intervene during his discipline of the children if he was mad about them spilling things; that she did frown upon his responses and discipline; and that she thought they "agreed they wouldn't touch each other's kids."
g. However, despite Mother's victimization, she left the children with [Boyfriend] on nearly a daily basis.
h. After the inception of these proceedings, Mother has been receiving therapy and has started to address domestic violence for the first time. According to Mother[, ] "now that I know what I know, it concerns me." However, also according to Mother "I wasn't concerned if I was being abused because he couldn't do that to a child."
i. At the time of the fact-finding proceedings, and having seen the autopsy, [Mother] now accepts [Boyfriend] is a "dangerous guy." However, leading up to [M.G.'s] death, [Boyfriend] would provide [Mother with] an explanation that made sense to her. "My son never had marks that were hidden-the marks made sense-I never suspected anything was going on." Mother now accepts that the child was severely injured and additionally sustained blunt force trauma to his appendix.
18. Mother has not been able to and is currently unable to obtain sufficient help on her own without the State's aid. Prior to the inception of these proceedings, Mother had no recognition that she and her children were in danger. It wasn't until the death of her two-year-old child, the provision of some therapy, and viewing the autopsy report did [sic] Mother accept that [Boyfriend] committed this heinous act against two-year-old [M.G.]. At the time of these proceedings, Mother had not completed her counseling and has not full [sic] comprehended the danger of domestic violence.
19. However, [Mother's] acceptance of the brutality of [Boyfriend] does not conclude the need for the coercive intervention of this Court. Despite having been the victim of domestic violence in the past, Mother did not comprehend that she was being abused again. Moreover, Mother did not comprehend the danger that domestic violence posed to her children. Now, Mother is facing criminal charges for which a no contact [order] has been issued against her in favor of her surviving child.
20. Mother's own supports [sic] did not recognize that two-year-old [M.G.] was being abused even despite having witnessed bruises on the child prior to his death. The Court is struck with the fact that it took the death of [M.G.] for anyone to intervene. Sadly, although it is too late for [M.G.], it is not too late to protect [K.H.].
21. The Court concludes that [K.H.] was [a] witness to the domestic violence to her Mother and was present in the home on the day that [M.G.] died. Yet, Mother persists in her contention that the coercive intervention of the Court is not required.
22. The evidence and the reasonable inferences from the evidence and testimony support this Court's determination that Mother had not fully addressed the issue of domestic violence and that she will not remedy the issue without the coercive intervention of the court. Moreover, [K.H.] had witnessed domestic violence and could verbalize what she saw. Furthermore, because of the continuing prospect of domestic violence absent this Court's coercive intervention, [K.H.'s] physical and mental health remain in serious danger. Thus, the evidence is sufficient to support the CHINS adjudication.
23. "A child's exposure to domestic violence can support a CHINS finding." K.B. v. Indiana Dep't of Child Servs., 24 N.E.3d 997, 1003 (Ind.Ct.App. 2015). Additionally, a single incident of domestic violence in a child's presence may support a CHINS finding, and it need not necessarily be repetitive. See id. at 1003-04. In K.B., there was evidence that the parties' children witnessed domestic violence and were old enough to comprehend it.
24. Acting under its parens patriae power, the State may interfere with parental autonomy when it is "necessary to protect the health and safety of children." In re V.H., 967 N.E.2d 1066, 1072 (Ind.Ct.App. 2012). The purpose of the CHINS statute is "to help families in crisis-to protect children, not ...

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