Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016 Page 1 of 33

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS

Kimberly A. Jackson

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Robert J. Henke

James D. Boyer

Deputy Attorneys General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In the Matter of: C.K., a Child 

Alleged to be in Need of 

Services,

F.R. (Mother) and B.K. (Father),

Appellants-Respondents,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner.

November 23, 2016

Court of Appeals Case No.

29A02-1603-JC-511

Appeal from the Hamilton Circuit

Court

The Honorable Paul A. Felix, 

Judge

The Honorable Todd L. Ruetz, 

Magistrate

Trial Court Cause No.

29C01-1509-JC-1177

Brown, Judge.
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[1] F.R. (“Mother”) and B.K. (“Father,” and together with Mother, “Parents”) 

appeal the juvenile court’s order determining that C.K. was a child in need of 

services (“CHINS”). Parents raise one issue which we revise and restate as 

whether sufficient evidence supports the juvenile court’s determination that 

C.K. was a CHINS. We affirm.

Facts and Procedural History

[2] Mother and Father are the married, biological parents of C.K., born April 13, 

2015. Mother, age thirty-two, is an emergency room physician, and Father, age 

thirty-four, is an electrical engineer. On July 23, 2015, C.K. fell from a stroller 

while on a walk with his maternal grandmother, which resulted in cuts on the 

left side of his face around his forehead and hairline. C.K.’s grandmother 

called Mother about his condition, C.K. appeared normal when Mother 

observed him, and Mother reported the accident to C.K.’s pediatrician, who 

had no further concerns related to the fall from the stroller. 

[3] On August 18, 2015, Mother fed C.K. and, at around 8:00 p.m., Father put him 

to bed. During the night, C.K. awoke once at approximately 1:00 a.m., and 

again between 3:00 a.m. and 4:00 a.m. Mother woke and attended to him on 

both occasions and breastfed him for approximately fifteen minutes before he 

returned to sleep. At approximately 5:45 a.m. Father awakened, showered, 

heard C.K. crying, and, after changing C.K.’s diaper, brought him to Mother, 

who was still sleeping, at approximately 6:00 a.m. Mother began to breastfeed 

him, and during that time she stayed in bed with him, nursing him and sleeping 

intermittently until 7:00 a.m. Meanwhile, Father left for work at approximately 
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6:30 a.m. Later that morning, Mother dropped C.K. off at the Goddard School 

at around 7:45 a.m. Danielle Mann, the lead teacher in the infant room, met 

Mother in the infant room that morning. Mann observed that C.K. seemed 

“[k]ind of normal,” but she also noticed that “[h]e didn’t really show a lot of 

expression or anything so.” Transcript at 217. Mann also noticed that C.K. 

“wasn’t really moving a lot,” that C.K. “was awake after [she] took him” but 

that he “looked a little sleepier,” and that he was not cooing or making noises at 

that time. Id. at 217-218. 

[4] After Mother left, Mann went to the area rug where the infants play, sat down 

with C.K. in her arms, and, while C.K. was in her arms, he “[j]ust laid there,” 

and she noticed that he did not make any movements with his arms or legs. Id. 

at 218. A short time later she “put him in the [M]amaRoo” because he “looked 

a little sleepy,” and she noted that he was awake when she placed him there. 

Id. at 219. She buckled him into the MamaRoo, which is “an electric swing 

that plugs into the wall and it cradles them like side-to-side,” and C.K.’s head 

rested in “a cup shape” portion of the swing. Id. at 220-221. The speed of the 

MamaRoo was not fast, a child’s head does not move from side to side, and 

children generally “don’t really move around in [the MamaRoo].” Id. at 222. 

Once C.K. was in the swing, Mann returned to playing with the other children 

and checked on C.K.’s breathing every five minutes. C.K. slept for about an 

hour when Mann noticed “a different breathing sound from him,” observed 

that he did not respond and did not open his eyes when she tapped him, and 

she continued tapping him and talking to him but he was still non-responsive. 
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Id. at 223. She took him out of the MamaRoo and “held him against [her]” but 

his eyes were still not opening, and she went to the door and called for the 

Goddard School’s Director, Amy Lamb and Assistant Director, Emily Shafer. 

Id.

[5] Mann, Lamb, and Shafer attempted to awaken C.K., but he was nonresponsive. He was “still breathing,” but it was a “gaspier kind of breath.” Id. 

at 225. While Mann and Shafer were attending to C.K., Lamb called 

paramedics and Parents. Another parent, Amanda Born, an OB/GYN 

physician, was dropping off her children at Goddard and also attempted to 

rouse C.K. Dr. Born observed C.K. “lying on his back on the floor” while 

Mann and Shafer were trying to wake him up and that “he looked asleep” with 

“very, very poor tone, like he wasn’t - - like he was in a very deep sleep 

basically but not responding to stimuli.” Id. at 123. 

[6] Lamb contacted Father at 9:11 a.m., and he immediately attempted to contact 

Mother. Mother contacted Lamb at 9:20 a.m., and was informed by Lamb that 

paramedics had been called. Mother requested that C.K. be transported to 

Riley Children’s Hospital (“Riley”). Paramedics arrived, checked C.K.’s vital 

signs, observed that he was not responsive to painful stimuli, that his limbs were 

weak, and that his skin was cold and pale, and they decided to take C.K. to 

Indiana University North Hospital (“IU North”), which was the nearest 

hospital. 
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[7] C.K. was taken to IU North where he underwent testing which showed 

intracranial hemorrhaging, and he was transferred to the emergency department 

at Riley. Mother joined C.K. in the ambulance ride to Riley, and he twice 

vomited the sugar water he had been given at IU North. At Riley, Dr. Daniel 

Fulkerson, a pediatric neurosurgeon, attended to C.K. and characterized his 

subdural hematomas as severe and noted that “any time we see somebody with 

a subdural hematoma that just by itself I think is, I would classify as severe.” 

Id. at 147. C.K. was observed with a bruise on the left side of his forehead, but 

there was no other evidence of fractures. C.K. spent three days in an intensive 

care room at Riley before he was transferred to a regular room for another four 

days. Tests revealed that he had subdural hematomas on both sides of his 

brain, which are collections of blood in the space between the brain and the 

skull, as well as hemorrhages to the retina of his right eye. Subdural 

hematomas are caused by a significant amount of force, either by impacting or 

striking the head, or the head is shaken with a significant and forceful back and 

forth movement. Retinal hemorrhages are often suspicious for a traumatic 

injury, but they also may be associated with non-accidental injuries or 

underlying conditions. 

[8] Dr. Ralph Hicks, a professor of clinical pediatrics at Riley who is board-certified 

in the subspecialty of child abuse pediatrics and a member of Riley’s child 

protection team, also evaluated C.K. and felt that his injuries “were suspicious 

for non-accidental trauma,” but he acknowledged that other possibilities 

included “an accidental event that had not yet been disclosed or an accidental 
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event associated with a lapse of supervision, or an accidental event associated 

with neglect” which could have caused the injuries. Id. at 111. He explained 

that, if the cause of the injuries was an accident, “it would require a pretty 

forceful trauma to the head, some sort of significant impact to the head or the 

head impacting something.” Id. Dr. Hicks also noted that “it takes a significant 

amount of force to cause this type of injury” and that the force involved in 

C.K.’s injury was “not the type of force that, forces that are involved with 

bouncing a baby on one’s knee or your usual swings, baby infant swings or 

carriers. It’s much more than that.” Id. at 105. 

[9] That same day, the Department of Child Services (“DCS”) received a report 

from Dr. Hicks that C.K. experienced head trauma as well as injuries around 

his right eye. DCS assessor Shalissa Kutzleb and Carmel Police Detective 

Trent McIntyre conducted an investigation into the cause of C.K.’s head 

injuries. Detective McIntyre interviewed Parents with Kutzleb present at Riley

during the afternoon of August 19, 2015. Mother stated to Detective McIntyre 

and Kutzleb that she had experienced “problems with [C.K.] sleeping within 

the last two weeks . . . where he had used to sleep through the night he was now 

getting up there or four times a night,” and Detective McIntyre was concerned 

with “the stressors in regard to [Mother] not sleeping and having problems with 

[C.K.] not sleeping,” and that Mother did not provide “a lot of details . . . 

between the time that she woke up and fed him and took him to school.” Id. at 

387-388. On August 26, 2015, Parents took a polygraph examination at the 

Carmel Police Department. Father passed the polygraph while Mother failed it 
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based on her responses to whether she was involved with the injury that 

occurred to C.K. or if she injured C.K., and if she knew how C.K. was injured. 

When interviewing Mother at Riley, Detective McIntyre felt that Mother’s 

“statements in regard to the sleep is one of the bigger things that shows a motive 

behind some type of injury” and that after the interview he observed Mother 

“laughing and talking with somebody else there that knew her through work. 

So there was just not as much distress visible.” Id. at 421. Detective McIntyre 

informed DCS of the results of the polygraph, as well as his suspicion that 

Mother may have been involved in C.K.’s injuries based on the totality of his 

interaction with her. 

[10] On September 2, 2015, DCS requested to initiate a CHINS filing seeking 

approval to take custody of C.K, and filed its CHINS petition. The petition 

alleged that C.K. was found to be “lethargic and unresponsive while at the 

Goddard School” and that he had subdural hematomas on both sides of his 

head as well as hematomas/hemorrhages around his eyes. Appellants’

Appendix at 42. The CHINS petition also alleged that the injuries were nonaccidental and that Mother failed a polygraph examination regarding C.K.’s 

injuries. That same day, the juvenile court held a detention hearing, ordered 

C.K.’s detention and continued placement in the family home, permitted 

Mother to return to the home, and ordered that all of Mother’s contact with 

C.K. be supervised. The juvenile court held an initial hearing on September 17, 

2015, at which Parents denied the allegations contained in the CHINS petition. 
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[11] On October 13, 2015, Mother underwent psychological testing with Dr. Robin 

Kohli, which included the Minnesota Mulitphasic Personality Inventory, 

Parenting Stress Index, Adult Substance Subtle Screening Inventory, Child 

Abuse Potential Inventory, and the Rorschach Inkblot Test. Dr. Kohli had not 

reviewed any materials from DCS or other sources prior to her evaluation, and, 

based upon her assessment of Mother and Parents’ self-assessment, noted that 

Mother had previously experienced three panic attacks and experienced anxiety 

and depressive symptoms. Mother did not report to Dr. Kohli that C.K. had 

been having trouble sleeping. Dr. Kohli observed that Mother “appeared to 

process information slowly and carefully, resulting in slower responding on the 

objective personality tests that would otherwise be expected given her high level 

of intelligence.” Parents’ Exhibit W at 1. Dr. Kohli’s report noted that 

Mother’s responses to the questions indicated defensiveness and situationalrelated depression and anxiety, and that, although Mother did not fall into the 

risk factors of shaken baby syndrome, she noted that depression, stress, and a 

colicky or fussy child could be risk factors and could not definitively exclude 

Mother as a perpetrator. 

[12] On November 2, 16, and 30, 2015, the juvenile court held a fact-finding hearing 

at which it heard testimony and received exhibits consistent with the foregoing. 

On December 28, 2015, the court entered an order (“the Order”), which 

contained detailed findings of fact and conclusions of law, determining that 

C.K. was a CHINS under Ind. Code §§ 31-34-1-1 and 31-34-1-2. The Order 

also applied the rebuttable presumption statute, Ind. Code § 31-34-12-4. 
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[13] On January 5, 2016, the guardian ad litem (“GAL”) filed a report for the 

dispositional hearing, and DCS filed a parental participation plan as to Mother 

and Father respectively. In the report, the GAL recommended that C.K. 

remain in the home with Mother and Father and that Mother have unrestricted 

visitation with C.K. Mother filed a petition for unsupervised visitation on 

February 4, 2016, and, the juvenile court held a dispositional hearing on 

February 22, 2016. The court entered a dispositional order on February 26, 

2016, and on March 29, 2016, DCS filed a motion to terminate jurisdiction and 

discharge the parties, which was granted on March 31, 2016. 

Discussion

[14] The issue is whether sufficient evidence supports the juvenile court’s 

determination that C.K. was a CHINS. In reviewing a juvenile court’s 

determination that a child is in need of services, we neither reweigh the 

evidence nor judge the credibility of the witnesses. In re S.D., 2 N.E.3d 1283, 

1286-1287 (Ind. 2014), reh’g denied. Instead, we consider only the evidence that 

supports the juvenile court’s decision and reasonable inferences drawn 

therefrom. Id. DCS is required to prove by a preponderance of the evidence 

that a child is a CHINS. In re A.H., 913 N.E.2d 303, 305 (Ind. Ct. App. 2009). 

When a court’s order contains specific findings of fact and conclusions of law, 

we engage in a two-tiered review. Id. First, we determine whether the evidence 

supports the findings. Id. Then, we determine whether the findings support the 

judgment. Id. We reverse the juvenile court’s judgment only if it is clearly 

erroneous. Id. A judgment is clearly erroneous if it is unsupported by the 
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findings and conclusions. Id. When deciding whether the findings are clearly 

erroneous, we consider only the evidence and reasonable inferences therefrom 

that support the judgment. Id.

[15] Ind. Code § 31-34-1-1 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.

[16] Ind. Code § 31-34-1-2(a) 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 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:
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(A) the child is not receiving; and

(B) is unlikely to be provided or accepted without the 

coercive intervention of the court.

[17] Finally, Ind. Code § 31-34-12-4 provides:

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.

The CHINS statute, however, does not require that a court wait until a tragedy 

occurs to intervene. In re A.H., 913 N.E.2d at 306. Rather, a child is a CHINS 

when he or she is endangered by parental action or inaction. Id. The purpose 
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of a CHINS adjudication is not to punish the parents, but to protect the child. 

In re A.I., 825 N.E.2d 798, 805 (Ind. Ct. App. 2005), trans. denied.

[18] Parents challenge Findings 10, 18-23, 25-32, 34-45, 47-48, 50-60, and 62-66 and 

Conclusions 1 and 3-9 of the Order. Parents also assert that the juvenile court 

erroneously applied the rebuttable presumption statute. DCS maintains that the 

evidence supports the findings, that the conclusions support the judgment, and 

that the Parents’ challenges to the findings and conclusions are a request to 

reweigh evidence. It argues that the juvenile court properly applied the 

rebuttable presumption statute, Parents did not rebut the presumption, their 

argument “misapprehend[s] the statute,” and that the juvenile court was 

entitled to weigh the evidence with respect to application of the rebuttable 

presumption statute. Appellee’s Brief at 29. In reply, Parents assert that DCS 

has waived its arguments on appeal, and that its failure to address their 

arguments leads to the conclusion that the standard of review should be prima 

facie error. 

[19] Parents challenge the following Findings and Conclusions of the Order:

FINDINGS OF FACT:

* * * * *

10. When Mother handed [C.K.] to Ms. Mann, [C.K.] had his 

eyes open and appeared to be fully awake but Ms. Mann noted 

he also appeared sleepy and did not show a lot of expression. 

[C.K.] was responsive to Ms. Mann’s voice by looking at her, but 

he did not move or reach for her as normal and made no noise. 
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[C.K.] made no movements of his arms or legs. After Mother 

left, Ms. Mann sat down with [C.K.] on the floor holding [C.K.] 

in her arms. Although awake, [C.K.] continued to appear sleepy, 

his eyes closing then opening, so she put him in a baby swing to 

sleep. [C.K.] was placed in the swing about 15 minutes after 

Mother left the daycare. It was not uncommon for [C.K.] take 

such morning naps.

* * * * *

18. [C.K.] also underwent numerous diagnostic tests ruling out, 

other than trauma, any indication of an underlying medical 

reason, condition or cause of [C.K.’s] injuries of subdural 

hematomas and retinal bleeding.

19. The force causing [C.K.’s] injuries would be significant 

acceleration or deceleration or rotation of the head and would be 

from either something impacting or striking the head, the head 

striking something, or the head being shaken with significant 

back and forth movement. According to Dr. Hicks, the type of 

force needed to cause this type of injury was much more than the 

force involved in bouncing a child on ones [sic] knee or the 

typical baby swing. Dr. Fulkerson concurred with the finding 

that the subdural hematomas were caused by some type of 

abnormal motion and that said motion would have to be more 

than a rocking motion in a swing.

20. The types of events that cause these injuries involve a 

significant amount of force which would be noticed by a 

reasonable caregiver.

21. According to Dr. Hicks, the injury to [C.K.] was either due 

to non-accidental trauma, an accident without disclosure (one in 

which the caregiver was aware of the accident but failed to report 
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the accident), an accident due to neglect, or an accident due to 

lack of supervision.

22. All four possibilities that Dr. Hicks presented as the possible 

cause of the injury to [C.K.] would only arise due to an act or 

omission of a caregiver. Nondisclosure of an accidental injury 

would fall under an omission of a caregiver as the expectation of 

a reasonable caregiver. In this circumstance, a reasonable 

caregiver would seek out medical care for [C.K.]. With [C.K.] 

being four months of age, and being of limited mobility, there is a 

reasonable probability that the injuries to [C.K.] were nonaccidental in this case.

23. Nothing unusual or abnormal happened at the daycare on 

August 19, 2015 that would have caused [C.K.’s] injuries. 

Nothing said by Ms. Mann or other daycare staff to Det. 

McIntyre gave him concern in his criminal investigation that any 

of them were the perpetrators of [C.K.’s] injuries.

* * * * *

25. The exact time when [C.K.’s] injuries occurred cannot be 

precisely pinpointed. However, based on Dr. Hick’s [sic] 

experience he states a relative time frame for the injuries can be 

determined. Infants who have these types of injuries will develop 

symptoms very rapidly after the traumatic event and often 

symptoms are immediate. If not immediate, symptoms develop 

very quickly. These symptoms include a change in mental status 

demonstrated by a depreciation in their level of alertness, ability 

to make eye contact, and their response to stimuli. They may 

develop irritability, sleepiness, lethargy, even coma.

26. The recognition of these symptoms from the onset of the 

trauma depends upon the severity of the injury. The symptoms 

can be more subtle and more difficult to recognize if the injury is 
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mild or moderate in degree. The significance of a moderate 

degree of severity is that the symptoms of such an injury may not 

be as immediately apparent as when an injury is more 

pronounced.

27. There is a spectrum to determine the severity of such 

injuries. [C.K.’s] subdural hematomas were on the moderate 

degree in the severity spectrum based on the testimony of both 

Dr. Hicks and Dr. Fulkerson. In expanding on the classification 

of moderate, Dr. Fulkerson described [C.K.’s] subdural 

hematomas were not severe enough for immediate surgery but 

not minor pools of blood either. 

28. The emergency responders who examined [C.K.] at the 

daycare also classified his head injury as moderate, placing it as a 

10 on the Glasgow Coma Scale which falls into the severity 

category of a moderate head injury. 

29. While the change in breathing occurred approximately an 

hour after [C.K.] was left at the daycare there is evidence strongly 

suggesting other symptoms were, or had already been, 

demonstrated by [C.K.] when [C.K.] was exchanged from 

Mother to Ms. Mann. Dr. Hicks identified the typical symptoms 

for this type of head injury could include, alteration in mental 

status; sleepiness, lethargy or coma; irritability; difficulty feeding; 

vomiting; seizures or convulsions; or difficulty in moving arms 

and legs normally. Not all of the symptoms will necessarily 

occur immediately and those that do occur immediately may not 

be easily recognized as a symptom. Symptoms may be subtle or 

more difficult to recognize in moderate injuries, as in [C.K.’s] 

case, and symptoms may come on more gradually and develop 

into more severe symptoms later.

30. There is evidence that at some point after the onset of 

symptoms [C.K.] vomited and may have, within a few days after 
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the injury, suffered a seizure. While these would be indicative 

that the symptoms were increasing in severity, they do not 

indicate that the head injury itself rose from the moderate 

category, as was identified by both Dr. Fulkerson and Dr. Hicks, 

to the severe category. As such, they are of little probative value 

in determining how severe or evident the symptoms would be at 

the time of the traumatic event itself.

31. According to Dr. Hicks, two possible symptoms could be 

that a child appears sleepy and exhibits poor feeding, both of 

which were present in this case at the time [C.K.] was dropped 

off at daycare by Mother. Additionally, [C.K.] did not show 

much expression as [C.K.] was delivered by Mother to Ms. 

Mann. Although [C.K.] was responsive to Ms. Mann’s voice by 

looking at her, he did not move or reach for her as normal and 

made no noise. Moreover, [C.K.] made no movements of his 

arms or legs. [C.K.] then continued to appear sleepy, his eyes 

closing then opening, while being held by Ms. Mann.

32. Further, the fact that the hour long feeding was noted as 

significant by Mother on the day the injury to [C.K.] was 

discovered, along with Mother’s own testimony that [C.K.] may 

not have been actually feeding the entire time, the Court finds 

that the hour long feeding on August 19, 2015 was more likely a 

result of [C.K.] having trouble feeding which the court finds to be 

a symptom of poor feeding.

* * * * *

34. The Court finds Ms. Mann’s testimony in its entirety to be 

credible and consistent with previous statements she had given to 

Det. Trent McIntyre of the Carmel Police Department. Ms. 

Mann appeared to be forthright in her testimony including her 

acknowledgment that she allowed [C.K.] to continue sleeping in 
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the swing, contrary to the daycare’s policy, rather than placing 

[C.K.] in a crib after falling asleep.

35. The court finds and that the greater weight of the evidence is 

that [C.K.] was injured prior to being left with Ms. Mann the 

morning of August 19, 2015 and Ms. Mann is not responsible for 

the injuries suffered by [C.K.].

36. The greater weight of the evidence is that [C.K.’s] injuries 

occurred while in the care of Mother.

37. Scans of [C.K.’s] subdural hematomas portrayed multiple 

densities with both acute (recent) bleeding and chronic (old)

bleeding suggesting more than one event and different time 

frames for the occurrences causing the hematomas. The fact that 

a child of four months age suffers from one subdural hematoma 

is a risk factor for non-accidental trauma warranting a panoply of 

protocols, assessments and evaluations by the Riley child 

protection team. The fact that [C.K.’s] scans showed more than 

one subdural hematoma, suggesting more than once occasion of 

injury, heightens the level of concern for repetitive trauma to 

[C.K.].

38. Dr. Sarah Hill, [C.K.’s] pediatrician, testified that one of the 

symptoms of a child suffering a head injury would be inadequate 

feeding. When questioned by counsel for parents, Dr. Hill 

testified that she would not expect a child who had suffered a 

brain injury to feed for an hour. However, Mother 

acknowledged that [C.K.] may have stopped and restarted 

feeding at times throughout the hour. Mother further stated that 

[C.K.] can typically get everything he needs as far as 

nourishment within fifteen minutes of feeding. The Court finds 

that there is a difference between a child actually feeding for an 

hour and for a child taking an hour to feed. The first implies 
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continued feeding, while the second suggests a child having 

trouble feeding.

39. On the morning of August 19, 2015 Mother advised Ms. 

Mann that [C.K.] had taken an hour to eat that morning, which 

was twice as long as he usually took to feed. Under the 

circumstances presented, the court finds Mother was reporting an 

unusual event and difficulty with feeding, and as such, is a 

symptom of trauma to [C.K.].

40. Mother was alone with [C.K.] on the morning of August 19, 

2015. On, August 18, 2015, the day prior to the incident, Mother 

nursed [C.K.] and Father put [C.K.] to bed between 7:00 p.m. 

and 8:00 p.m. Mother then went to bed about 8:45 p.m., later 

expressing to Detective McIntyre that she was very tired and had 

little sleep the night before on August 17, 2015. [C.K.] awoke at 

1:00 a.m. and again at 4:00 a.m. [in] the early morning hours of 

August 19, 2015 with Mother getting up to take care of and nurse 

[C.K.]. Each feeding occasion took about 15 minutes before 

laying [C.K.] back down to sleep. On August 19, 2015 [C.K.] 

then awoke again at about 5:45 a.m. at which time Father 

changed [C.K.] and left [C.K.] with Mother again to nurse. 

[C.K.] was awake, responsive[,] even smiling at Father at the 

time. Father left for work about 6:45 a.m. leaving [C.K.] in 

Mother’s care. Mother then delivered [C.K.] to daycare at 7:53 

a.m.

41. While one symptom alone may not be enough to indicate 

that the injury to [C.K.] occurred prior to his being brought to the 

daycare that morning. The Court finds by a preponderance of 

the evidence that the cumulativeness of these symptoms, both 

before and at the time [C.K.] was brought to daycare, 

demonstrates that [C.K.] was more likely than not to have 

suffered the injury prior to his arrival at the daycare and was 

already in distress at the time of his arrival at the daycare.
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42. Mother has also given inconsistent statements as to the lack 

of sleep for both her and [C.K.] around August 19, 2015. Mother 

reported that [C.K.] was a pretty good sleeper, easy to take care 

of and not fussy. She also testified that she had plenty of sleep 

the night of August 18, 2015. Yet on August 19, 2015, she told 

Det. McIntyre that she did not get much sleep on August 17, 

2015 that she had experienced recent problems with [C.K.’s] 

sleeping patterns. [C.K.] had been sleeping through the night, 

but was recently getting up 3 or 4 times a night. Mother 

described it as being a “nightmare” during this time. Mother told 

the detective that she had gotten up at least twice that night 

(August 18 through August 19, 2015) to feed [C.K.] which she

described as normal feedings. Mother then stated that the next 

thing she knew Father awakened her to give her [C.K.] to feed in 

the morning when Father left for work. Mother tried to have 

[C.K.] lay with her so she could go back to sleep before work. 

Mother told the detective that pretty soon she realized that that 

was not going to happen and it would be another day of no sleep. 

Mother said [C.K.] was crying when she first got him that 

morning. Mother also talked to the detective about being 

stressed at work.

43. Mother further told the detective that [C.K.] had fed 

normally that morning, which is inconsistent with what Mother 

told Ms. Mann earlier when Mother left [C.K.] at the daycare.

44. When asked, Mother provided little detail to Detective 

McIntyre as to the morning events transpiring on August 19, 

2015 prior to her delivering [C.K.] to daycare.

45. Details as simple as where Mother placed [C.K.] on the 

morning of August 19, 2015 changed over time. On August 19, 

2015, the day she was first interviewed by Det. McIntyre, Mother 

said that after feeding [C.K.], she placed [C.K.] in his swing. 

Days afterwards, while talking with her attorney, she recalled 

that she had left [C.K.] on the bed. The Court finds it is much 
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more likely that the details of an event are better recalled close to 

the timing of the event then it would be several days later. 

Moreover, placing [C.K.] in a swing would be inconsistent with 

the suggestions that [C.K.] may have sustained his injuries as a 

result of being placed in a swing at daycare, a suggestion made by 

[Parents] during the course of the proceeding. 

* * * * *

47. The Court finds that the multiple instances of conflict, 

alteration, and/or omission by Mother in her testimony and 

previous statements to others discredit her overall testimony.

48. No one has come forward with details of actual events that 

caused the injuries to [C.K.]. [C.K.] suffered no accidents that 

would have caused the injuries.

* * * * *

50. The court finds that the presumption of I.C. 31-34-12-4 has 

been raised by the state in this case by competent evidence of 

probative value that [C.K.] has suffered, as a result of nonaccidental trauma, two subdural hematoma’s [sic] on the brain 

and retinal bleeding while in the care of [C.K.’s] parent and that 

the injuries would not ordinarily be sustained except for the act 

or omission of the parent.

51. Evidence offered by way of video recording to suggest [C.K.] 

was asymptomatic at the time [C.K.] was delivered to daycare is 

not persuasive. The Court, having viewed the surveillance video 

as [C.K.] entered into the daycare on August 19, 2015, notes that 

[C.K.’s] eyes were open. Albeit, there was no observable 

movement of [C.K.’s] head, arms or legs to indicate any level of 

alertness. The Court also takes into consideration the testimony 
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of Dr. Hicks that simply because a child’s eyes are open does not 

necessarily mean that [C.K.] is alert. According to Dr. Hicks, 

when an individual sustains a brain injury, the eyes may remain 

open, but he may not be able to comprehend things.

52. Mother’s interactions with and care for [C.K.] at the hospital 

after the injuries were sustained, as reflected in pastoral care 

notes, the psychological assessment, the social work report, and 

the release of information to DCS and the Carmel Police 

Department are not persuasive that Mother is not responsible for 

[C.K.’s] injuries. [Parents] point to observations within the 

medical records of Mother’s interaction with [C.K.] at the 

hospital after the injury occurred as indicative as to whether or 

not Mother caused the injury to [C.K.]. The fact that a parent is 

attentive to a Child’s needs after an injury, in and of itself, does 

not negate the possibility that the parent is responsible for the 

injury. In this same regard, the court notes that there is evidence 

of Mother being observed in the hospital laughing with a friend 

and/or acquaintance while [C.K.] is being treated for a traumatic 

brain injury. This demonstrates there may be no correlation 

between [C.K.’s] injury and the Mother’s emotions exhibited 

afterward.

53. [Parents] present evidence that [C.K.] had fallen from a 

stroller on July 23, 2015 to suggest a cause of [C.K.’s] injuries 

observed on August 19, 2015. The court finds there is no nexus 

between this earlier fall and the later injuries based upon the 

testimony of Dr. Hicks. The court rules out this fall as a cause of 

[C.K.’s] injuries discovered on August 19, 2015.

54. Dr. Daniel Fulkerson, the neurosurgeon who evaluated 

[C.K.] on August 19, 2015 and thereafter, believes there is some 

indication that [C.K.] may have had a predisposition to bleeding 

on the brain. He posited that [C.K.] had some enlarged extraaxial cerebrospinal fluid spaces (BEFI) that, by theory, may have 

predisposed [C.K.] to bleeding on the brain due to enlarged 
Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016 Page 22 of 33

spacing between the brain and skull. But, such a predisposition 

for bleeding by such a condition cannot be scientifically proven 

and such bleeding even with such a condition, according to Dr. 

Fulkerson, would still be the result of a traumatic event. 

Moreover, Dr. Hicks determined that the pattern of findings 

which [C.K.] presented would not be the same as expected with 

BEFI. The neuroradiologist, with whom Dr. Hicks consulted 

and with whom he reviewed [C.K.]’s scans, did not feel there 

was definite evidence for enlargement or widening between 

[C.K.’s] brain and skull to justify this position by Dr. Fulkerson. 

Notwithstanding, a BEFI condition would not account for the 

retinal hemorrhages according to Dr. Fulkerson. Retinal 

hemorrhages in infants and young children caused by trauma are 

unusual with accidental injuries and are more concerning for 

non-accidental injury. The court finds that Dr. Fulkerson’s 

opinion [C.K.] may have the BEFI condition does not outweigh 

the preponderance of the evidence presented by the state or rebut 

the presumption raised by the state.

56. [Parents] hired a psychologist, Dr. Robin Kohli, to complete 

a psychological evaluation which was admitted into evidence as 

Defendant’s Exhibit W. In the evaluation, Dr. Kohli opines 

Mother “does not meet the research based evidence that is 

correlated with individuals who perpetrate non-accidental 

injuries against their infants” and “testing results did not suggest 

risk to reoffend.” The Court finds that the psychological 

evaluation was effectively discredited by DCS and should be 

relegated little probative value in Mother’s favor. On the 

contrary, the evaluation provides evidence of probative value that 

Mother suffers from stress increasing the likelihood that she is the 

perpetrator of [C.K.’s] injuries and fails to rebut the presumption 

raised by the state.

a. Mother reports to Dr. Kohli that she has had, over a sustained 

time, numerous bouts of anxiety brought about by various 

stressors accompanied by lack of sleep. Stressful circumstances 
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and lack of sleep have been presented accompanying the 

occurrence of [C.K.’s] injuries. Mother was previously 

prescribed medication for anxiety, has stopped taking the 

medication, but still exhibits symptoms of anxiety.

b. Mother failed to advise Dr. Kohli that she was experiencing 

difficulty with [C.K.’s] sleep patterns. She described [C.K.] as 

easy to care for and did not describe the circumstances leading up 

to [C.K.’s] injuries as a “nightmare” as she described to Det. 

McIntyre. Mother failed to inform Dr. Kohli that [C.K.] had not 

been sleeping well around the time of the injury, a fact which Dr. 

Kohli admitted may have made a difference in her assessment.

c. Dr. Kohli relied only on information reported to her by 

Mother. She did not review any documentation by DCS or 

others.

d. Dr. Kohli acknowledged during her testimony that the test 

results are subjective.

e. By her own account, Dr. Kohli noted in the assessment that 

Mother’s “overly concerned response style may have limited the 

validity of the testing, as it was later observed that she presented 

with a defensive style on several of the tests. While none of the 

measures were invalidated by this response style, her excessive 

caution limited the utility of several of the tests.”

f. Dr. Kohli noted within the psychological assessment that 

Mother’s responses to the Rohrshach Inkblot Test “suggested 

that she is currently under a fair amount of stress, which may 

impact her ability to cope with everyday stressors and events. 

She also tends to internalize her feelings, avoiding overt 

emotional expression.” Dr. Kohli testified that when a person 

internalizes their feelings, the person can have problems coping 

with those feelings.
Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016 Page 24 of 33

g. As part of the psychological assessment, Dr. Kohli evaluated 

Mother in relation to Shaken Baby Syndrome by comparing 

Mother to several risk factors. Dr. Kohli acknowledged in her 

testimony that the risk factors she listed as definitive were in fact 

only suggestive in the research articles she relied upon in making 

her evaluation. She also acknowledged that her research articles 

noted research on such risk factors was woefully inadequate.

h. Dr. Kohli further acknowledged that the research articles on 

which she relied indicated that infant shaking is much more 

likely to result from a moment of extreme stress and frustration, 

and takes the form of an unreasoned and impulsive act. In most 

cases, the shaking occurred by the perpetrator when they were 

alone caring for the child and where there were no witnesses and 

little or no evidence of ongoing abuse.

i. Dr. Kohli opined that Mother met none of the known risk 

factors which would place her at risk for physically abusing 

[C.K.] through non-accidental infant trauma, despite previously 

listing findings of stress and depression in the assessment, which 

were two of the risk factors she listed.

j. A third risk factor identified by Dr. Kohli, was when an infant 

has difficult temperament, is colicky or fussy, cries excessively, or 

[is] difficult to soothe. As noted previously, Mother chose not to 

disclose to Dr. Kohli that [C.K.] had not been sleeping well at the 

time of the injury and that it had been a “nightmare” as she 

disclosed to Det. McIntyre. To the contrary, Mother told Dr. 

Kohli that [C.K.] sleeps well and that he was an easy baby. Dr. 

Kohli acknowledged that if [C.K.] had been sleeping well, but 

then wasn’t, that would possibly be important.

k. Dr. Kohli testified that she could not definitively exclude 

Mother as the perpetrator based on her assessment.
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57. Mother points to her ability to handle stress in her 

occupation as an emergency room physician as proof that she, in 

a moment of extreme stress, would not harm [C.K.]. The court 

notes that during her evaluation, Dr. Kohli observed Mother 

“appeared to process information slowly and carefully, resulting 

in slower responding on the objective personality tests than 

would otherwise be expected given her high level of intelligence.” 

Dr. Kohli further states her impression that Mother’s overall 

testing results “also indicated a tendency to be indecisive and rely 

on others to make decisions.” The court finds that this behavior 

and characteristic difficult for a person in Mother’s position 

suggesting Mother’s ability to handle stressors at work may also 

be difficult for her or overcome with much effort. 

Notwithstanding, the Court finds Mother’s ability to handle

stress at work is not compelling as to whether she harmed [C.K.]. 

The court finds this evidence does not outweigh the evidence 

presented by the state and dos not rebut the presumption raised 

by the state.

58. Based on the evidence presented and inconsistencies in 

Mother’s own statements, the Court finds by a preponderance of 

the evidence that the injuries to [C.K.] happened while in 

Mother’s care and [sic] were caused by an act or omission of 

Mother. Mother was alone with [C.K.] the morning of August 

19, 2015. Mother is the one person who has given inconsistent 

accounts at various times and to various people.

59. The Court finds that the parents have not presented evidence 

sufficient to refute the rebuttable presumption raised by the state.

60. [C.K.] is in need of services and the coercive intervention of 

the court is necessary to achieve those services. A Child and 

Family Team Meeting (CFTM) was held prior to September 1, 

2015. At the CFTM [Parents] initially expressed a willingness to 

participate in services provided by DCS. But, after DCS service 

referrals were made for parenting assessment(s), home based 
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services, and “first steps” for [C.K.], those services were 

ultimately rejected by the parents’ counsel. Those services would 

have provided an assessment of parenting techniques with 

possible further recommendations, home based services including 

parental assistance and childcare if needed, and evaluation of 

[C.K.’s] development due to the injuries suffered. [Parents] have 

not participated in any of the services which Ms. Lawson 

referred. Case closure is not recommended by DCS at this time 

due to the lack of provision and/or participation in these 

services.

* * * * *

62. Diane Crider, Guardian ad Litem, testified that she has no 

safety concerns with Mother and [C.K.’s] safety. The court is not 

persuaded by the GAL’s testimony under the circumstances. Ms. 

Crider acknowledged that she was assigned to the case just prior 

to November 2, 2015. Since that time she has only been to the 

home three times, each time for one hour and has spent a total of 

less than three hours observing Mother with [C.K.].

63. [C.K.] is at risk for additional injury if [C.K.] remains in the 

environment in which the injury occurred. While [C.K.] appears 

to be recovering from his injuries, any ongoing effects from the 

injuries may not be evident for many years, including possible 

development of seizures and possible delays in development that 

may not be discovered until [C.K.] is older.

64. Mother admits that she has a history of anxiety including 

panic attacks. Mother continues to suffer from anxiety due to life 

stressors. As noted by Dr. Kohli, Mother was previously 

prescribed medication for anxiety, has stopped taking the 

medication, but still exhibits symptoms of anxiety.
Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016 Page 27 of 33

65. Without adequately addressing the risk factors displayed by 

Mother, [C.K.’s] safety cannot be assured while in Mother’s care.

66. Each enumerated paragraph above individually and 

cumulatively supports the found fact that [C.K.] is a Child in 

Need of Services.

* * * * *

CONCLUSIONS OF LAW:

1. This Court has jurisdiction over the parties and subject matter 

pursuant to Indiana Code 31-30-1-1(2) and Indiana Code 31-30-

2-1.

* * * * *

3. At the time [C.K.] was injured [Parents] had the care, custody 

or control of [C.K.]; or had the legal responsibility for the care, 

custody, or control of [C.K.].

4. The injury would not ordinarily be sustained except for the act 

or omission of a parent, guardian or custodian.

5. There is a reasonable probability that the injury was not 

accidental.

6. Pursuant to IC 31-34-12-4 there is a rebuttable presumption 

that [C.K.] is a child in need of services because of an act or 

omission of [C.K.’s] parent, guardian or custodian. That 

presumption has not been rebutted by the evidence presented.
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7. [C.K.] is a child in need of services as defined in IC 31-34-1-1 

in that his physical or mental condition is seriously impaired or 

seriously endangered as a result of the inability, refusal or neglect 

of his parent, guardian or custodian to provide him with 

necessary food, clothing, shelter, medical care, education or 

supervision.

8. [C.K.] is a child in need of services as defined IC 31-34-1-2 in 

that [C.K.’s] physical or mental health was seriously endangered 

due to injury by the act or omission of [C.K.’s] parent, guardian 

or custodian.

9. [C.K.] needs care, treatment or rehabilitation through 

providing services for [Parents] for the benefit and safety of 

[C.K.] and/or for [C.K.] that [C.K.] is not currently receiving 

and is unlikely to be provided or accepted without the coercive 

intervention of the court. These services are necessary to ensure 

that [C.K.] will not be further harmed.

Appellants’ Appendix at 7-17.

[20] The juvenile court based its CHINS determination on evidence that in August 

of 2015, C.K. suffered injuries while in Mother’s care, specifically, subdural 

hematomas and retinal hemorrhaging. Parents do not dispute that C.K. 

suffered these injuries which are consistent with a traumatic injury. The 

juvenile court held a three-day fact-finding hearing and was in the best position 

to evaluate the evidence that was presented.1

 

 

1 Parents challenge findings related to sleepiness and lethargy as symptoms of a traumatic head injury. We 

note that Dr. Hicks testified that differentiating between sleepiness and lethargy “can be difficult to judge” 

based on the “significance or severity,” id. at 185, of the injury, but the court heard Dr. Hicks specifically 
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[21] As to whether C.K. was showing symptoms of a head injury when he arrived at 

Goddard, Mother was alone with him for a little over an hour after Father left 

for work and prior to dropping him off at Goddard. Upon his arrival at 

Goddard Mann testified that C.K. “didn’t really show a lot of expression or 

anything so,” he “wasn’t really moving a lot,” he “was awake after [she] took 

him” but that he “looked a little sleepier,” and that he was not cooing or 

making noises. Transcript at 217-218. Dr. Hicks testified that symptoms of a 

head injury include:

[A] change or alteration in the mental status so that the infant is 

not normal with respect to their level of alertness, ability to make 

eye contact, to respond, for example, by smiling if they’re at an 

age where they’re doing that. They may develop irritability, they 

may develop sleepiness or lethargy or even coma. They may 

have difficulty fee[d]ing, they may have vomiting. There might 

be seizures, convulsions. There may be difficulties or abnormal, 

abnormalities in the abilities to move the arms and legs normally.

Id. at 114-115. Dr. Hicks characterized C.K.’s injuries “as moderate in degree 

because of his symptoms that he developed and the findings on his head 

imaging,” and that symptoms in a moderate injury “may be more subtle or 

more, a little more difficult to or challenging to recognize.” Id. at 115. The 

juvenile court also heard Dr. Hicks testify that symptoms “can be immediately 

severe, they can come on more gradually and then develop into severe distress 

 

testify that “sleepiness or lethargy” occur as symptoms of a traumatic head injury. Id. at 114. Aided by the 

expert medical testimony, the court was best positioned to weigh the evidence, judge the credibility of the 

witnesses, and determine whether C.K. was showing symptoms of a traumatic head injury. 
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later.” Id. at 203. Dr. Fulkerson testified that the acute blood on C.K.’s CT 

scan suggested that the trauma causing his injuries “happened within hours to 

days, maybe up to a week, but probably within a day or so.” Id. at 158. 

Detective McIntyre testified that Mother did not provide “any real interaction 

that she talked about other than just sitting him down while she got ready for 

work” in the time period prior to C.K.’s arrival at Goddard, and he testified 

that “newer parents will talk in a lot more detail about their interactions with 

babies.” Id. at 388. Detective McIntyre also testified that he “didn’t have 

concerns” regarding the sequence of events at Goddard based on the 

information he received from the Goddard employees during his investigation. 

Id. at 430. The record supports the juvenile court’s findings as to whether C.K. 

was demonstrating symptoms of a head injury on the morning of August 19, 

2015 and is supported by the evidence. Parents’ arguments are a request that 

we reweigh the evidence, which we cannot do. 

[22] As to the possible causes and medical impact of C.K.’s injuries, Doctor Hicks 

testified that “retinal hemorrhages that are due to, that are caused by trauma, 

particularly in infants and young children, are unusual with accidental head 

injuries. They’re more concerning for a non-accidental injury . . . .” Id. at 107. 

Dr. Hicks also testified that C.K.’s injuries “were suspicious for non-accidental 

trauma” but acknowledged that other possibilities included “an accidental event 

that had not yet been disclosed or an accidental event associated with a lapse of 

supervision, or an accidental event associated with neglect.” Id. at 111. He 

explained that if the cause of the injuries was an accident “it would require a 
Court of Appeals of Indiana | Memorandum Decision 29A02-1603-JC-511 | November 23, 2016 Page 31 of 33

pretty forceful trauma to the head, some sort of significant impact to the head or 

the head impacting something.” Id.

[23] Dr. Fulkerson, who treated C.K. at Riley, explained that a subdural hematoma 

“is a severe event,” that it was possible C.K. suffered a seizure, and that a 

symptom for a seizure in a four-month old infant is unresponsiveness. Id. at 

147. Dr. Fulkerson also explained that C.K. appeared to have benign extraaxial fluid, and that, even with that condition, repetitive motion in a swing that 

goes side to side or up and down would not likely cause a re-bleed of an existing 

subdural hematoma. Dr. Fulkerson also explained that the MRI showed that 

C.K. suffered subdural hematomas of different densities which would “suggest 

changes in timeframe” and that the injuries were “moderate” but “worse than 

just a little tiny skoosh of blood.” Id. at 161. He added that the CT scan 

showed findings of both acute and chronic blood, that “[w]hen we see findings 

that would suggest there is multiple densities, in other words, suggesting 

multiple times, that is another thing that we think is a risk factor for nonaccidental trauma,” id. at 162, and that multiple densities of the subdural fluid 

on the MRI and the CT scan caused him to “worry about multiple events” 

which may suggest “there is something repetitive going on and also again 

something that trips our concern for the child.” Id. at 165-166. With respect to 

the relationship between benign-extra axial fluid and the presence of retinal 

hemorrhaging, Dr. Fulkerson stated that “[j]ust BEFI in itself will not cause 

retinal hemorrhages” and that the presence retinal hemorrhaging raises the 

concern that it is caused by trauma. Id. at 173. The medical testimony related 
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to the severity and possible causes of C.K.’s injuries is reflected in Findings 18-

22, 25-32, 37, 38, 51, and 53-55, and Parents’ arguments are a request to 

reweigh the evidence, which we cannot do.

[24] With respect to Parents’ argument that the juvenile court incorrectly applied the 

rebuttable presumption statute, we note that the juvenile court had before it 

sufficient evidence to establish that C.K. suffered injuries, that while he was in 

Mother’s care he was showing symptoms of a head injury upon his arrival at 

Goddard, that his injuries are of a type not ordinarily sustained except for an 

act or omission of a parent, and that the injuries were not accidental. Parents’ 

argument requires us to reweigh the evidence the juvenile court had before it, 

and we cannot say that the court erred in applying the rebuttable presumption 

statute or that Parents presented sufficient evidence to rebut the presumption. 

See In re C.B., 865 N.E.2d 1068, 1073 (Ind. Ct. App. 2007) (holding that 

“[w]hile it is not certain whether Mother inflicted these injuries upon C.B.” the 

evidence presented raised the presumption under Ind. Code § 31-34-12-4 that 

C.B. was a CHINS), trans. denied.

[25] With respect to Parents’ challenges to C.K.’s continued safety and Mother’s 

mental health, the court heard the testimony of C.K.’s GAL, who was assigned 

to the case in November 2015, and, despite her testimony that she did not have 

safety concerns with Mother being alone with C.K., concluded that the GAL

had not spent sufficient time around the family to determine the safety of the 

home environment and chose not to give her testimony significant weight. The 

court also heard Dr. Kohli’s testimony and reviewed her report, which noted 
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Mother’s defensive response style as well as her issues related to general 

anxiety. We cannot say that the juvenile court abused its discretion in failing to 

afford the same weight to the testimony of the GAL and to the testimony and 

report of Dr. Kohli as Parents urge this Court to do. 

Conclusion

[26] Based upon the foregoing, the juvenile court had before it sufficient evidence 

upon which it based its findings and conclusions. We conclude that the court 

properly applied Ind. Code § 31-34-12-4, and that its determination that C.K. 

was a CHINS under Ind. Code §§ 31-34-1-1 and -2 is supported by sufficient 

evidence.2

 

[27] For the foregoing reasons, we affirm the juvenile court’s determination.

[28] Affirmed.

Robb, J., and Mathias, J., concur.

 

2 To the extent Parents argue that the standard of review should be prima facie error because DCS has waived 

its arguments by failing to respond to their arguments, we find no merit in Parents’ contention.