author: PYLE, Judge.

text:
    John GRESSER and Janice Gresser, Individually and as parents and natural guardians of Elizabeth Gresser and Rebekah Gresser, Appellants/Plaintiffs, v. The DOW CHEMICAL COMPANY, INC. DowElanco n/k/a Dow Agrosciences LLC, and Reliable Exterminators, Inc., Appellees/Defendants.
    No. 79A02-1111-CT-1014.
    Court of Appeals of Indiana.
    April 30, 2013.
    Rehearing Denied July 22, 2013.

      Roger L. Pardieck, Karen M. Davis, Sarah Miller Hyatt, The Pardieck Law Firm, Seymour, IN, Michael J. Stapleton, Elizabeth B. Searle, Ball, Eggleston P.C., Lafayette, IN, Attorneys for Appellant.
    Lonnie D. Johnson, Patricia S. Bernens, Clendening Johnson & Bohrer, P.C., Bloomington, IN; Joseph G. Eaton, Dean T. Barnhard, Paul L. Jefferson, Barnes & Thornburg, LLP, Indianapolis, IN, Attorneys for Appellee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

John and Janice Gresser, individually, and as parents and natural guardians of Elizabeth and Rebekah Gresser (collectively, “the Gressers”), filed a product liability action against The Dow Chemical Company, Inc., and DowElanco n/k/a Dow Agro-sciences LLC (collectively, “Dow”) and a negligence action against Reliable Exterminators, Inc. (“Reliable”).

Dow responded to the Gressers’ suit by filing several motions for summary judgment and motions to strike. Rehable also filed or joined in the summary judgment motions. The Gressers appeal the trial court’s grant of some of these summary judgment motions, while Dow and Reliable cross-appeal the trial court’s denial of other summary judgment motions. In addition, Reliable cross appeals the trial court’s denial of its motion to exclude and/or strike depositions, affidavits, and other evidence proposed by the Gressers’ expert witnesses. The issues delineated below are dispositive.

We affirm in part, reverse in part, and remand for further proceedings.

ISSUES
1. Whether summary judgment for Dow is warranted under the Indiana Product Liability Act (“IPLA”).
2. Whether the trial court erred in denying Reliable’s motion to exclude or strike the evidence proposed by the Gressers’ causation experts.
3. Whether the trial court erred in denying Reliable’s motion for summary judgment on the Gressers’ negligence claim.
4. Whether the trial court erred in denying Reliable’s summary judgment motion on the issue of punitive damages.
5. Whether the trial court erred in determining that this case is preempted by federal law.

FACTS AND PROCEDURAL HISTORY

On January 31, 2000, Reliable’s owner, Robert Hanstra (“Hanstra”), performed a pre-treatment inspection of a house owned by James Galloway and marketed by RE-MAX Realty (“REMAX”). Hanstra found evidence of what he believed to be termite activity, and he recommended that the house be treated for termites. Reliable subsequently entered into a contract with REMAX that required Reliable to apply a termiticide to the house. The contract was in connection with the sale of the house to New Chauncey Housing (“New Chauncey”).

On February 11, 2000, Reliable employee Dave Neal treated the house by applying a termiticide, Dow’s Dursban TC, to get rid of wood destroying insects. At all times, Dursban TC was registered with the Environmental Protection Agency (“EPA”) according to the requirements of the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”).

Thirteen months after Reliable’s application of Dursban TC, the Gressers purchased the house, even though they detected a very strong odor in the house. On May 10, 2001, two months after the purchase, the Gressers moved into the house, which still emanated a very strong odor.

After moving into the house, the Gres-sers reportedly experienced continual health problems, including unremitting flu-like symptoms, colds, excessive secretions, dizziness, fatigue, and other physical problems. The Gressers’ daughters reportedly developed irritability, behavior problems, and learning difficulties. In June of 2002, the Gressers moved out of the house because they feared that something in the house was causing their various illnesses.

On March 17, 2004, the Gressers filed product liability claims against Dow and negligence claims against Reliable. Their product liability claims are based on Dow’s alleged failure to (1) use reasonable care to instruct about the use of the product; (2) warn about its dangers; and (8) properly test and design the product. The Gres-sers’ claims against Rehable are based on their belief that Reliable negligently (1) chose to apply a termiticide where none was necessary; (2) selected Dursban TC instead of a safer product; (3) misapplied Dursban TC; and/or (4) failed to provide a warning to future occupants of the house.

Dow filed separate motions for summary judgment pertaining to the validity of the Gressers’ failure to warn claims and various other issues pursuant to the Gressers’ claims under IPLA. Dow also filed a motion for summary judgment alleging that the Gressers’ failure to warn claims were preempted by federal law, specifically FI-FRA and EPA regulations. Dow further filed a motion for summary judgment alleging that the Gressers’ claim for punitive damages was unsubstantiated. In addition, Dow filed various motions to strike designated evidence, including expert witness affidavits.

The trial court granted Dow’s summary judgment motion pertaining to the validity of the Gressers’ failure to warn claims under IPLA. The trial court also granted Dow’s motion for summary judgment on the issue of federal preemption. The trial court further granted Dow’s summary judgment motion pertaining to the Gres-sers’ claim for punitive damages. The trial court denied all other Dow motions without substantive comment, including a motion by both Dow and Reliable to exclude two of the Gressers’ expert witnesses.

Reliable filed a motion for summary judgment and joined with Dow on other motions. The trial court denied Reliable’s motion for summary judgment and other motions. However, the trial court granted summary judgment in favor of Reliable on the federal preemption issue.

Additional facts will be disclosed below as necessary.

DISCUSSION AND DECISION

Summary judgment is appropriate if there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. City of Terre Haute v. Pairsh, 883 N.E.2d 1203, 1206 (Ind.Ct.App.2008), trans. denied. A genuine issue of material fact exists “ ‘where facts concerning an issue which would dispose of the litigation are in dispute or where the undisputed facts are capable of supporting conflicting inferences on such an issue.’ ” Haub v. Eldridge, 981 N.E.2d 96, 101 (Ind. Ct.App.2012) (quoting Scott v. Bodor, 571 N.E.2d 313, 318 (Ind.Ct.App.1991)). When reviewing entry of summary judgment, we stand in the shoes of the trial court. Koppin v. Strode, 761 N.E.2d 455, 460 (Ind.Ct.App.2002), trans. denied.

The moving party bears the burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Boston v. GYN, Ltd., 785 N.E.2d 1187, 1190 (Ind.Ct.App.2003), trans. denied. We review only the designated evidentiary material in the record, construing that evidence liberally in favor of the nonmoving party so as not to deny that party its day in court. Myers v. Irving Materials, 780 N.E.2d 1226, 1228 (Ind.Ct.App.2003). However, once the movant has carried its initial burden of going forward under Indiana Trial Rule 56(C), the nonmovant must come forward with sufficient evidence demonstrating the existence of genuine factual issues that should be resolved at trial. Clary v. Dibble, 903 N.E.2d 1032, 1038 (Ind.Ct.App.2009), trans. denied. If the nonmovant fails to meet its burden, and the law is with the movant, summary judgment should be granted. Id.

Our standard of review is not altered by the fact that the parties made cross-motions for summary judgment. Sapp v. Flagstar Bank, FSB, 956 N.E.2d 660, 663 (Ind.Ct.App.2011). Instead, we consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Id.

1. Summary Judgment on the Gressers’ IPLA Claims

As noted above, the trial court granted Dow’s summary judgment motion regarding the validity of the Gresser failure to warn claims under IPLA. However, the trial court denied Dow’s summary judgment motion based upon the Gressers’ failure to satisfy IPLA requirements for proving that a product was defective. The Gressers appeal the grant of the former motion, and Dow cross appeals the denial of the latter motion. The motions are inextricably linked, and we base our decision upon the evidence designated by both parties and upon the dictates of federal and state law.

IPLA governs all actions that are (1) brought by a user or consumer; (2) against a manufacturer or seller; and (3) for physical harm caused by the product, regardless of the substantive legal theory or theories upon which the action is brought. Ind.Code § 34-20-1-1. Liability under IPLA is imposed “upon sellers of a product in a defective condition that is unreasonably dangerous to any user or consumer.” Warriner v. DC Marshall Jeep, 962 N.E.2d 1263, 1267 (Ind.Ct.App.2012), trans. denied. A product is defective if, at the time it is conveyed by the seller to another party, it is in a condition that is not contemplated by reasonable persons among those expected users or consumers of the product and that will be unreasonably dangerous to the expected user or consumer when used in reasonably expectable ways of handling of consumption. Ind.Code § 34-2CM-1. The requirement that the product be in a defective condition focuses on the product itself while the requirement that the product be unreasonably dangerous focuses on the reasonable expectations of the consumer. Baker v. Heye-America, 799 N.E.2d 1135, 1140 (Ind.Ct.App.2003), trans. denied. A product may be dangerous in the ordinary sense but not “unreasonably dangerous” for product liability purposes under IPLA. Id.

Ind.Code § 34-20-5-1 provides a rebuttable presumption that the product which caused the physical harm is not defective and the manufacturer or seller of the product is not negligent if, before the sale by the manufacturer, the product “complied with applicable codes, standards, regulations, or specifications established, adopted, promulgated, or approved by the United States or by Indiana, or by an agency of the United States or Indiana.” FIFRA requires that all pesticides sold or distributed in the United States must first be registered with the EPA. 7 U.S.C. § 136a(a). A FIFRA registration is a “product-specific license describing the terms and conditions under which the product can be legally distributed, sold, and used.” Reckitt Benckiser, Inc. v. EPA, 613 F.3d 1131, 1133 (D.C.Cir.2010) (citing 7 U.S.C. § 136a(a), (c)-(e)). The EPA “can only register a pesticide upon determining that ‘it will perform its intended function without unreasonable adverse effects on the environment’ and that ‘when used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse effects on the environment.’ ” Id. (quoting 7 U.S.C. § 136a(c)(5)(C), (D)). FIFRA defines “environment” to include “water, air, land, and all plants and man and other animals living therein, and the interrelationships which exist among these.” 7 U.S.C. § 136(j). In registering any pesticide, the EPA must make an official agency determination that the product does not pose any “unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of [its] use.” 7 U.S.C. § 136(bb).

As a result, Dow is entitled to the statutory presumption pursuant to Indiana Code § 34-20-5-1. Dursban TC’s compliance with FIFRA and Indiana law has a significant impact under IPLA’s consumer expectation-based product liability regime because the risk of harm has been evaluated by agencies charged with the duty of monitoring the effects of Dursban TC. Furthermore, Dursban TC’s labeling and warnings have been approved by agency experts.

In this case, the undisputed designated evidence establishes that Dursban TC was registered with the EPA, pursuant to FI-FRA (7 U.S.C. §§ 136-136y) and its implementing regulations, from February of 1981 to March of 2009. The undisputed evidence also establishes that at all times relevant in 1999 and prior to and including February of 2000, that the data submitted by Dow in support of the registration “was in full compliance with Indiana law.” (Dow’s App. 1463). The designated evidence further establishes that Dow has always sold Dursban TC with a copy of the current EPA-approved label attached to the containers of the product at the time of sale. Dow has never sold Dursban TC directly to the general public but instead sold the product to distributors who sold it to applicators.

Indiana Code § 34-20-4-2 provides that a product is defective under IPLA if the seller fails to (1) properly package or label the product to give reasonable warnings of danger; or (2) give reasonably complete instructions on proper use of the product; when the seller, by exercising reasonable diligence, could have made such warnings or instructions available to the user or consumer. Here, the label, warnings, and instructions were reviewed by agency experts and eventually provided to Reliable, a sophisticated user.

Despite the lack of evidence showing Dursban TC to be defective pursuant to Indiana Code § 34-20-4-2, the Gressers claim that their injuries would not have occurred absent Reliable’s negligence. However, Indiana Code § 34-20-4-3 provides that a product is not defective if “it is safe for reasonably expectable handling and consumption.” The combination of federal and state approval of the product, combined with the nature of the Gressers’ claim against Reliable, constitutes undisputed evidence that Dursban TC was not defectively produced by Dow.

In response, the Gressers also argue that designated evidence pertaining to pre-2000 settlements between Dow and the EPA rebuts the statutory presumption; however, this evidence does not establish that Dursban TC was ever unregistered. Indeed, as a part of a settlement between Dow and EPA, the Dursban TC label was amended to contain stronger warnings than past labels. Therefore, the Gressers arguably benefitted from the pre-2000 conflict. Furthermore, the Gres-sers’ evidence does not prove a product defect. See In re Trasylol Products Liability Litigation, 763 F.Supp.2d 1312, 1329-30 (S.D.Fla.2010) (holding that evidence or testimony pertaining to conflicts with a federal agency is generally irrelevant to a plaintiffs state-law claims and thus inadmissible); Webster v. Pacesetter, Inc., 259 F.Supp.2d 27, 37 (D.C.2003) (holding that a plaintiff cannot create an issue of fact regarding a state-law tort claim through evidence about the defendant’s communications with a federal agency).

Because it is undisputed that (1) Dow complied with federal regulations and state law label requirements; and (2) the Gres-sers presented no admissible evidence to rebut the presumption that Dursban TC is not defective, Dow is entitled to judgment as a matter of law. The trial court erred in denying Dow’s motion for summary judgment under IPLA on the Gressers’ defective design claim. Therefore, the Gressers’ failure to warn and defective design theories under IPLA are ineffectual.

2. Motion to Strike or Exclude Evidence Proposed by the Gressers’ Expert Witnesses

On cross appeal, Reliable contends that the trial court erred in not granting its motion to strike and/or exclude the designated depositions, studies, and affidavits of the Gressers’ medical causation experts, Dr. J. Routt Reigart (“Reigart”) and Dr. William Meggs (“Meggs”). Reliable argues that Reigart’s and Meggs’ opinions are inadmissible on the issue of causation because the opinions meet neither the requirements of Indiana Evidence Rule 702 (stating that scientific testimony is admissible “only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable”) nor Indiana Evidence Rule 703 (stating that experts “may testify to opinions based on inadmissible evidence, provided that it is the type reasonably relied upon by experts in the field”).

The decision to admit or exclude proffered expert testimony is entrusted to the sound discretion of the trial court. PSI Energy, Inc. v. Home Ins. Co., 801 N.E.2d 705, 738 (Ind.Ct.App.2004), trans. denied. We will reverse the trial court only if its decision is clearly against the logic and effect of the facts and circumstances. Id.

Specific causation in a toxic tort case is “usually” supported by evidence of the plaintiffs’ exposure “to a particular causative agent and the dose or amounts thereof, the temporal relationship between the exposure and the occurrence of the [injuries], scientific conclusions as to the amount of exposure necessary to cause the disease, and the elimination of other possible causes or explanations for the plaintiffs’] [injuries].” Aurand v. Norfolk S. Ry., Co., 802 F.Supp.2d 950, 959 (N.D.Ind. 2011). Indiana courts do not require proof of each element in every case but will exclude expert testimony where none of the elements is shown. Outlaw v. Erbrich Products Co., 777 N.E.2d 14, 29 (Ind.Ct.App.2002), trans. denied. In particular, we have held that when an expert witness testifies in a chemical exposure case “that the exposure has caused a particular condition because the plaintiff was exposed and later experienced symptoms, without having analyzed the level, concentration or duration of the exposure to the chemicals in question, and without sufficiently accounting for the possibility of alternative causes,” the expert’s opinion is insufficient to establish causation. Id. (emphasis added). “An expert’s opinion is insufficient to establish causation when it is based only upon a temporal relationship between an event and a subsequent medical condition.” Id. (emphasis added).

In May v. Ashley F. Ward, Inc., 952 N.E.2d 224 (Ind.Ct.App.2011), we distinguished Outlaw in affirming a trial court’s denial of a manufacturer’s motion to exclude an expert causation witness in a case where the plaintiff claimed that heavy metals caused him to contract sinus cancer. We emphasized that the expert knew from an examination of the “Material Safety Data Sheets” which heavy metals the plaintiff had been daily exposed to at work. Id. at 231, n. 7. We further emphasized that the expert “explained the rarity of this type of cancer, its link to heavy metal exposure, and the fact that he ruled out several other potential causes.” Id. We noted that in Outlaw, “the chemicals at issue were unknown [and] ... the expert had not sufficiently accounted for the possibility of alternative causes. Because the expert’s opinion was based primarily on the existence of a temporal relationship, we found that it amounted to subjective belief and unsupported speculation.” Id.

In Hottinger v. Trugreen Corp., 665 N.E.2d 593, 597 (Ind.Ct.App.1996) (partially overruled on other grounds in Dow Chemical Co. v. Ebling, 753 N.E.2d 633, 636 (Ind.2001)), trans. denied, we held that expert testimony was admissible based on temporal proximity of exposure and the onset of symptoms; a medical history; a medical examination; diagnostic evaluations; and the expert’s education and experience. Similarly, in Femco, Inc. v. Colman, 651 N.E.2d 790, 794 (Ind.Ct.App.1995), we affirmed the trial court’s refusal to exclude a physician’s affidavit where the distributor and manufacturer of a chemical argued that the affidavit contained no expert toxicological or neurological evidence of causation and that it lacked any foundation for the conclusion that exposure to the chemical was “the culprit behind [the plaintiffs] troubles and was therefore con-clusory.” We held that the affidavit was admissible because it established that the affiant (1) examined and treated the plaintiff for her injury; (2) knew of the chemical ingredients and their potential effects; and (3) diagnosed the chemical as the cause of the plaintiffs injury. Id. In so holding, we noted that the affiant had read the chemical’s “Material Safety Data Sheet,” which included a list of possible toxic effects of the chemical that paralleled those of the plaintiff. Id.

In Norfolk Southern Ry. Co. v. Estate of Wagers, 833 N.E.2d 93, 104 (Ind.Ct.App. 2005), trans. denied, we held that the trial court properly admitted an expert’s testimony where the expert obtained a history of chemical exposure by reviewing the plaintiffs medical records and the depositions of co-workers, reviewed relevant medical literature, and conducted a differential diagnosis. Id. at 104. We reviewed Hottinger and Femco and concluded that neither required specific evidence of dose or exposure level. Id. at 105.

Kannankeril v. Terminix Intern., Inc., 128 F.3d 802 (3rd Cir.1997) is instructive. In Kannankeril, as in the instant case, the plaintiffs alleged they suffered injuries from exposure to chloropyrifos (a key ingredient in Dursban TC). The plaintiffs’ expert based his opinion of causation on the temporal relationship between the exposure and the symptoms, the nature of the symptoms, and a “differential diagnosis” attempting to rule out other causes. Id. at 807-09. The court rejected the district court’s finding that the expert had no knowledge of the plaintiffs’ degree of exposure, stating that the expert “had sufficient knowledge of exposure” from his review of application records showing when, where, and how much pesticide was applied. Id. at 808. The court noted that “the toxic effects of organophosphates [such as chlorpyrifos] are well recognized by the scientific community” and concluded that the expert’s opinion contained a factual basis and supporting scientific theory. Id. at 809.

Here, the trial court denied the motion to strike and/or exclude the evidence presented by Reigart and Meggs after it reviewed a plethora of information and theories from both parties. Reigart’s assessment addressed duration of the exposure, circumstances consistent with peer-reviewed literature, and exposure data from multiple sources. He reviewed medical records, social worker assessments, occupational therapist notes, neu-ropsychological evaluations, and examinations of the Gressers’ daughters. He also conducted a differential diagnosis to rule out other causes. Meggs opined that the duration of the exposure resulted in acute symptoms, and he explained that in 95 percent of cases the precise amount of exposure cannot be determined. He examined medical, family, environmental, and social history pertaining to a time period before and after the exposure, and he conducted physical examinations. Meggs also performed a differential diagnosis of acute symptoms and chronic illnesses for each family member.

In this ease, the Gressers’ medical causation experts’ testimony was based on much more than the temporal relationship between the event and the subsequent development of medical conditions. Therefore, our review of the record and the parties’ arguments reveals that the trial court did not abuse its discretion in denying Reliable’s motion to exclude the testimony of Reigart and Meggs.

3. Reliable’s Motion on Causation and Failure to Warn

As stated above, the Gressers’ claims against Reliable are based on their belief that Reliable negligently (1) chose to apply Dursban TC when no application was necessary; (2) selected Dursban TC instead of a safer product; (3) misapplied Dursban TC; and/or (4) failed to provide a warning to the Gressers as foreseeable occupants of the house where the application was made. On cross appeal, Reliable contends that the trial court erred in not granting its motion for summary judgment on the Gressers’ claims of negligent application and/or negligent failure to warn because Reliable owed no duty to the Gres-sers.

In order to recover on a negligence claim, plaintiffs must establish three elements: “(1) a duty on the part of the defendant to conform its conduct to a standard of care arising from its relationship to the plaintiffs; (2) the defendant’s failure to conform its conduct to the requisite standard of care required by the relationship; and (B) injury to the plaintiffs proximately caused by the defendant’s breach of its duty.” Holt v. Quality Motor Sales, Inc., 776 N.E.2d 361, 365 (Ind.App.2002) (quoting Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991)), tram, denied. Summary judgment is rarely appropriate in negligence actions; however, issues of duty are questions of law for the court and may be appropriate for disposition by summary judgment. Id. Duty exists where reasonable persons would recognize it and agree that it exists. Bradley v. Brown, 852 F.Supp. 690, 695 (N.D.Ind.1994). The following three factors must be balanced in considering whether to impose a duty at common law: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the persons injured; and (3) public policy concerns. Holt, 776 N.E.2d at 366 (quoting Webb, 575 N.E.2d at 995).

Where, as here, the parties do not argue, and we do not detect, any special relationship between the parties that would give rise to a duty of care, the Court’s focus is “on whether the type of harm actually inflicted was reasonably foreseeable.” See Bradley, 852 F.Supp. at 695. Reliable maintains that foreseeability and public policy considerations militate against a finding of a duty to warn the Gressers. Reliable argues that it could not foresee the identity of the future buyers of the house and that it was impracticable as a matter of public policy to expect it to provide warnings to such unidentified buyers. However, Reliable knew that the house it treated with a highly toxic product was for sale, and it knew or should have known that the house was going to be purchased and occupied by people who could be injured by the product. Therefore, it was foreseeable that the future occupants, the Gressers, could be injured by misapplication of the product. Furthermore, public policy mandates that an applicator of such toxic materials conform its conduct to avoid injury to unsuspecting future occupants. Id.

Balancing the three factors originally listed in Webb, we conclude that Reliable had a duty to warn the Gressers. The trial court did not err in denying Reliable’s summary judgment motion on this issue.

4. Reliable’s Motion on Punitive Damages

On cross-appeal, Reliable contends that the trial court erred in denying its motion for summary judgment on the issue of punitive damages. Reliable contends that the Gressers’ allegations, even if true, are insufficient to establish that an award of punitive damages is warranted.

Whether a party may recover punitive damages is usually a question of fact for the fact finder to decide; however, it may be decided as a matter of law. Williams v. Younginer, 851 N.E.2d 351, 358 (Ind.Ct.App.2006), trans. denied. Furthermore, proof that a tort was committed does not necessarily establish the right to punitive damages. Id. Punitive damages may be awarded only if there is clear and convincing evidence that the defendant acted with malice, fraud, gross negligence, or oppressiveness which was not the result of a mistake of fact or law, honest error or judgment, overzealousness, mere negligence, or other human failing. Id.

Here, the Gressers designated evidence which they contend is sufficient to create a genuine issue of material fact on the issue of punitive damages. The Gressers point to evidence indicating that Reliable ignored numerous label warnings when it (1) applied Dursban TC where there was no evidence of active infestation; (2) did not properly vent the house; (8) failed to seal obvious cracks, and (4) did not turn off the furnace during application of the termiti-cide. Reliable disputes this evidence.

As a result, there is a genuine issue of material fact as to whether Reliable committed gross negligence in ignoring the label warnings, thereby allowing toxic materials to circulate throughout the house whenever the furnace was turned on. In addition, the conflicting contentions create a genuine issue of material fact as to whether Reliable was grossly negligent in not warning the Gresssers that Dursban TC had been determined by the EPA to be particularly harmful to children and to be the source of neurological damage. The designated evidence also might allow a jury to determine whether Reliable knew that the EPA was removing Dursban TC from the market. Knowing the particular dangers of Dursban TC, Reliable chose to apply it when at least ten other liquid termiticides were available. Furthermore, Reliable chose not to inform the Gressers that the persistent odor in the house could be related to an off-target application; instead, it offered to vent the house upon payment by the Gressers.

Our review of the designated evidence discloses that there is sufficient evidence to create a fact question pertaining to the Gressers’ punitive damage claim. Accordingly, the trial court did not err in denying Reliable’s motion.

5. Federal Preemption

As we note above, the trial court granted summary judgment for both Dow and Reliable on the issue of federal preemption. Specifically, the trial court determined that the Gressers’ product liability and negligence claims were preempted pursuant to PLIVA, Inc. v. Mensing, — U.S. -, 131 S.Ct. 2567, 180 L.Ed.2d 580 (2011). The Gressers contend that the trial court erred in granting summary judgment on this issue.

Preemption is based on the Supremacy Clause of the United States Constitution, which provides that federal law “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const., Art. VI, cl. 2. The United States Supreme Court has established two principles to guide preemption analysis: (1) in determining whether preemption is proper, the purpose of Congress is the ultimate touchstone; and (2) in all preemption cases, particularly those in which Congress has legislated, the historic powers of the states are not to be superseded. Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009) (citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996)).

Courts have recognized three types of preemption: express preemption; field preemption; and conflict preemption. Express preemption occurs when Congress includes a clause in a statute that explicitly removes specific powers from the states. See CSX Transp. Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). In the absence of express preemption, field preemption occurs when federal law encompasses so much of an area of law that courts can infer that Congress left no opportunity for state law to supplement federal law. English v. Gen. Elec. Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). The third type of preemption, which is discussed in PLIVA, is conflict preemption. 131 S.Ct. 2567. Conflict preemption occurs when federal law impliedly preempts state law because it is impossible for a private party to comply with both state and federal law. Wyeth, 555 U.S. at 563, 129 S.Ct. 1187. To prevail on this defense, a defendant must demonstrate that compliance with both federal and state law is a “physical impossibility.” Id. at 573, 129 S.Ct. 1187. Impossibility preemption is a “demanding defense, and the mere possibility of impossibility is not enough to successfully argue for preemption.” Id.

Here, we have already determined that the Gressers have not established their product liability claims against Dow under IPLA. Dow is not required to defend against the claims, and there is no viable conflict issue under PLIVA. Thus, the trial court’s grant of summary judgment was improvidently granted.

Furthermore, the Gressers’ failure to warn claim against Reliable does not render compliance with both state and federal law impossible. As our Supreme Court held in Dow Chemical Co. v. Ebling, 753 N.E.2d 633, 640 (Ind.2001), “[t]he use of state tort law to further the dissemination of label information to persons at risk clearly facilitates rather than frustrates the objectives of FIFRA and does not burden [an applicator’s] compliance with FIFRA.” Again, the trial court’s grant of summary judgment on this issue was improper.

CONCLUSION

The trial court correctly granted Dow’s summary judgment motion on the Gres-sers’ failure to warn claims under IPLA. However, the trial court erred in denying Dow’s related summary judgment motion on the Gressers’ failure to satisfy IPLA requirements. In addition, the trial court improvidently granted Dow’s summary judgment motion pertaining to federal preemption.

The trial court correctly denied Reliable’s motion to exclude the Gressers’ expert witnesses. The trial court also correctly denied Reliable’s summary judgment motions pertaining to the Gres-sers’ negligence claims and to the possibility of a punitive damage award. The trial court erred by granting summary judgment in favor of Reliable on the issue of federal preemption.

Affirmed in part, reversed in part, and remanded for further proceedings.

FRIEDLANDER, J., and BROWN, J., concur.

      . Oral argument was held on February 20, 2013. We thank counsel for their able representation.

      . A trial court "may grant summary judgment for any other party upon the issues raised by the motion although no motion for summary judgment is filed by such party.” Indiana Trial Rule 56(B):

      . Reliable notes that it did not learn of the odor until the Gressers informed them of the odor after they had moved from the house. Reliable argues that because the Gressers never reoccupied the house, "there is no basis whatsoever for a claim of duty and negligence premised on this [knowledge]: any harm to the [Gressers] due to toxic exposure, or lack of warning, had already occurred at this time.” (Reliable’s Br. at 39 n. 3). As we held in Wohlwend v. Edwards, 796 N.E.2d 781, 785 (Ind.Ct.App.2003), we are "unwilling to say that, in a case involving punitive damages, post-incident acts could never be relevant to the issue of punitive damages in conjunction with the incident giving rise to the plaintiff’s claim.” Here, Reliable’s post-application failure to warn the Gressers of the odor’s significance could be determined by the fact finder to be consistent with a pattern of gross negligence.


source: Caselaw Access Project

author: MAY, Judge.

license: Public Domain

text:
    In re the MARRIAGE OF Christopher R. DUCKWORTH and Angela Duckworth, Angela Duckworth, Appellant-Respondent, v. Christopher R. DUCKWORTH, Appellee-Petitioner.
    No. 29A02-1208-DR-669.
    Court of Appeals of Indiana.
    May 24, 2013.

      Bryan Lee Ciyou, Lori Schmeltzer, Ci-you & Dixon, P.C., Indianapolis, IN, Attorneys for Appellant.
   OPINION

MAY, Judge.

Angela Duckworth (Mother) appeals the order modifying custody and child support in favor of Christopher Duckworth (Father). Mother argues the trial court abused its discretion when it determined her child support obligation based on the income Father assigned to her on his child support worksheet. As Mother did not submit a child support worksheet or other evidence of her income, we affirm.

FACTS AND PROCEDURAL HISTORY

Mother and Father were divorced in July 2010, and shared custody of their children, C.D. and I.D. On February 6, 2012, Father filed a Verified Petition for Modification of Decree asking the trial court to grant him sole custody of the children and require Mother to pay child support. After hearing evidence, the trial court granted Father sole custody of Children, subject to Mother’s supervised parenting time, and ordered Mother to pay Father $231.00 per week in child support.

DISCUSSION AND DECISION

We first note Father did not file an appellee’s brief. When an appellee does not submit a brief, we do not undertake the burden of developing arguments for that party. Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind.Ct.App.2002). Instead, we apply a less stringent standard of review and may reverse if the appellant establishes prima facie error. Id. Prima facie error is “error at first sight, on first appearance, or on the face of it.” Van Wieren v. Van Wieren, 858 N.E.2d 216, 221 (Ind.Ct.App.2006).

The trial court sua sponte made findings of fact and conclusions of law. In this situation,

the specific findings control our review and the judgment only as to the issues those specific findings cover. Where there are no specific findings, a general judgment standard applies and we may affirm on any legal theory supported by the evidence adduced at trial.
We apply the following two-tier standard of review to sua sponte findings and conclusions: whether the evidence supports the findings, and whether the findings support the judgment. Findings and conclusions will be set aside only if they are clearly erroneous, that is, when the record contains no facts or inferences supporting them. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made. We consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom, and we will neither reweigh the evidence nor assess witness credibility.

Trust No. 6011, Lake County Trust Co. v. Heil's Haven Condominiums Homeowners Ass’n, 967 N.E.2d 6, 14 (Ind.Ct.App.2012).

Appellate courts give considerable deference to the findings of the trial court in family law matters. MacLafferty v. MacLafferty, 829 N.E.2d 938, 940-41 (Ind.2005). We recognize the trial judge “is in the best position to judge the facts, to get a feel for the family dynamics, to get a sense of the parents and their relationship with their children — the kind of qualities that appellate courts would be in a difficult position to assess.” Id. Appellate decisions that modify the trial court’s decision are especially disruptive in the family law setting. Id.

Child support calculations are made utilizing the income shares model set forth in the Indiana Child Support Guidelines. McGill v. McGill, 801 N.E.2d 1249, 1251 (Ind.Ct.App.2004). These Guidelines apportion the cost of supporting children between the parents according to their means. Id. A calculation of child support under the Guidelines is presumed valid. Id. Therefore, we will not reverse a support order unless the determination is clearly against the logic and effect of the facts and circumstances. Id. When reviewing a child support order, we do not assess credibility or re-weigh evidence; we confine our review to the evidence and reasonable inferences therefrom favorable to the trial court’s decision. Id. Mother challenges the trial court’s calculation of child support, claiming the income assigned to her was inaccurate.

In all cases, a copy of the worksheet which [sic] accompanies these Guidelines shall be completed and filed with the court when the court is asked to order support. This includes cases in which agreed orders are submitted. Worksheets shall be signed by both parties, not their counsel, under penalties of perjury.

Indiana Child Support Guideline 8. In her brief, Mother claims, “There is nothing in the record with respect to Mother’s actual and current income, other than the testimony of her current employment status.” (Br. of Appellant at 18.) Mother did not submit a child support worksheet indicating her current income. As Mother did not submit any evidence of her income, her complaint about the amount of income assigned is misplaced. See Witte v. Mundy ex rel. Mundy, 820 N.E.2d 128, 133 (Ind.2005) (“a party may not take advantage of an error that she commits, invites, or which is the natural consequence of her own neglect or mistake”).

The trial court assigned an income level to Mother that was supported by the only evidence in the record of Mother’s income — the figure assigned by Father on his worksheet. If Mother disagreed with that amount, the time to challenge its accuracy was at trial, not on appeal. We decline to reverse because of an alleged error in the income figure the trial court used to determine her child support obligation. See Dye v. Young, 655 N.E.2d 549, 550 (Ind.Ct.App.1995) (trial court follows Indiana Child Support Guidelines when it orders child support based on income figure listed on Child Support Worksheet). Accordingly, we affirm.

Affirmed.

BAKER, J., and MATHIAS, J., concur.


author: VAIDIK, Judge.

text:
    In the Matter of the Termination of the Parent-Child Relationship of: B.H. & B.H. (Minor Children), and T.H. (Mother), Appellant-Respondent, v. The INDIANA DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner.
    No. 52A02-1210-JT-849.
    Court of Appeals of Indiana.
    May 30, 2013.

      Kimberly A. Jackson, Indianapolis, IN, Attorney for Appellant.
    Natalie Fantetti, DCS Miami County Office, Peru, IN, Robert J. Henke, DCS Central Administration, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

T.H. (“Mother”) appeals the termination of her parental rights to her two young sons. She contends that the trial court erred by qualifying a social worker as an expert witness and allowing that social worker to testify about a parenting assessment called the Child Abuse Potential Inventory (“CAPI”). Although Indiana Code section 25-23.6-4-6 prohibits a licensed clinical social worker from providing expert testimony, Indiana Evidence Rule 702 contains no social-worker exclusion. And because the Indiana Rules of Evidence control when they conflict with a statute, we hold that the social worker in this case was able to testify as an expert witness and was properly qualified as such. We also conclude that CAPI is based upon reliable principles, and therefore the trial court did not err by allowing testimony about Mother’s CAPI results. Any error in the admission of other challenged evidence was harmless, and there is sufficient evidence to support the trial court’s judgment. We affirm.

Facts and Procedural History

Mother is the biological mother of B.L.H., born on June 30, 2006, and B.J.H., born on June 21, 2007. Mother’s first involvement with the local Miami County Office of the Indiana Department of Child Services (“MCDCS”) came in October 2008, when MCDCS removed the children from her care because the home was cluttered and dirty, with trash, food, animal feces, soiled diapers, and other items littered throughout. After Mother entered into an informal adjustment with MCDCS, the children were returned to her care. In December 2008, MCDCS received a report that Mother was being evicted and had nowhere to live. The children were removed and placed in foster care.

Later that month, MCDCS filed a petition alleging that B.L.H. and B.J.H. were children in need of services (“CHINS”). In February 2009, Mother admitted the allegations in the CHINS petition and the children were adjudicated CHINS. The trial court ordered Mother to participate in a variety of services to facilitate reunification with her children. In pertinent part, Mother was ordered to submit to random drug screens, participate in home-based services, exercise parenting time with the children, secure independent housing and pay all rent and utilities, and work to further her education. At a status hearing in April 2009, the trial court noted that Mother’s progress and participation in services was minimal at best.

In 2010, MCDCS filed its first petition to terminate Mother’s parental rights. After a hearing in late 2010, the trial court denied MCDCS’ petition and ordered additional services for Mother, including an intensive parenting-skills development course. At a status hearing in 2012, however, the trial court concluded that Mother had failed to fully participate in services and had not improved her ability to parent the children. The children’s permanency plan was changed to adoption. MCDCS filed its second petition to terminate Mother’s parental rights in February 2012, and a termination hearing was scheduled for August 2012.

During the second termination hearing, MCDCS presented evidence establishing that Mother was unable to provide the children with a safe and stable home environment because she failed to secure employment and stable housing or improve her parenting skills through court-ordered services. Mother admitted that she had trouble finding stable housing and had moved twelve times since the children’s removal, paying for only one of those residences herself. Tr. p. 147-51. She was currently living with her brother and sister and her parents were supporting her financially. Id. at 152. She said that her children could not live with her at her current residence. Id. at 153. Mother had completed lifeguard training and hoped to get a job at the YMCA but acknowledged that she had four years since the boys’ removal to find employment and appropriate housing for her children. Id. at 162.

A number of service providers who had worked with Mother over the years testified about her ultimately unsuccessful participation in services. Mother had poor attendance and lack of interest in the intensive parenting class she was ordered to attend after the denial of MCDCS’ first termination petition, id. at 78, refused to participate in individual counseling, id. at 152, and showed a poor bond with the children during parenting time, id. at 87. The children, however, were thriving in foster care despite being diagnosed with post-traumatic stress disorder and attachment issues. When first placed in foster care, B.L.H., at twenty-eight-months old, could say ten words and hid food, and B.J.H., who was sixteen months old, could not walk normally, could not drink out of a child’s cup or chew food, and would go rigid when held. Id. at 94-95. Both boys were violent and would sometimes attack each other if left alone. Now, the boys were doing well in school and received counseling and developmental services. Id. at 96. B.J.H. had been diagnosed with learning disabilities and was being tested to determine the cause. The foster parents wanted to adopt the boys.

Sara Stolinas, an MCDCS caseworker, reiterated Mother’s lack of progress. MCDCS offered Stolinas’ written progress reports into evidence as business records. The reports included Stolinas’ summaries of Mother’s progress as well as other documents such as Mother’s counseling records, treatment plans, parenting-time observations, and a number of other parenting-assessment documents. Mother’s counsel objected on hearsay grounds, but the trial court admitted the progress reports over the objection and allowed Stolinas to summarize the reports’ contents, highlighting Mother’s instability in housing and employment and her non-compliance with the case plan. Id. at 132-38.

Expert witness Jillorna Uceny gave her recommendation to terminate Mother’s parental rights. Uceny is a therapist, social worker, and board certified diplómate with a master’s degree in social work. Id. at 45. Uceny assessed Mother’s parenting skills through a number of individual tests, an interview, and an observation of Mother’s interaction with the children.

One of the tests Uceny administered to Mother was the Child Abuse Potential Inventory (“CAPI”). CAPI is used to determine an individual’s likelihood of physically abusing children. Id. at 44. CAPI was developed at Northern Illinois University in 1977 by Dr. Joel Millner and is widely used and accepted as relevant and reliable by psychiatric professionals. Id. at 45-46. It is a standardized test based on five “constructs,” and it has been “administered over many ... samples of people and then normed[,] and so there are three different validity scales in the cap ... that are used to make sure that we are getting an accurate result.” Id. at 45. Although CAPI had been the subject of peer-reviewed studies, Uceny said she did not have the studies or statistics in front of her at that time. Over Mother’s objection — both as to the qualifications of Uceny to testify as an expert and the reliability of the CAPI test — the trial court allowed Uceny to testify as an expert.

Summarizing the CAPI results, Uceny said that Mother’s score was “271 and the cut-off is 166 on the test.” Id. at 44. Mother’s score suggested:

[T]hat [Mother] has an array of personal characteristics that are similar to known physical child abusers. It also suggests that she is less available to her children and less responsive to any of the temporal changes in the child’s behavior and that her ability to form child attachment is less than adequate.

Id. Uceny also explained that Mother’s CAPI score indicated that the children would be at risk in Mother’s care; specifically, at risk from abuse by Mother or someone else without intervention or protection from Mother. Mother’s high scores in categories such as “rigidity,” “distress,” “problems with others,” and “ego strength,” showed that Mother “had both emotional and cognitive immaturity, a history of untreated depression with only a brief period of medical compliance,” “denial and evasion of her responsibilities as a parent,” a victim mentality, and low frustration tolerance. Id. at 51-52. The parenting assessment also showed that Mother was unable to “be empathetically aware of the children’s needs,” and that Mother viewed the “needs of [the] children as secondary to her own needs.” Id. at 52-53. As to Mother’s assessment responses about employment, she had “made it clear she did not intend to get a job, that she was waiting for her boyfriend’s [social security] to come in and once that happened she was going to marry him and live off his [social security].” Id. at 57.

Uceny went on to describe Mother’s interaction with the children, recalling that Mother made no effort to have physical interaction with her sons and they did not approach her for physical affection. Uce-ny summarized her assessment of Mother:

[I]t is not likely that [Mother] is going to be able to respond to any of the outside services that have been provided to her because of her low level of functioning, both cognitively and emotionally. [I]t means she cannot see or understand that [she needs to] make the changes that she needs to make.
******
She did not have a normal, healthy, close bond with the children. It was a very distant, disengaged!,] and cold bond.

Id. at 58. Uceny recommended terminating Mother’s parental rights.

At the conclusion of the evidentiary hearing, the trial court took the matter under advisement. The following month, the trial court entered its judgment terminating Mother’s rights to the children. She now appeals.

Discussion and Decision

On appeal, Mother argues that the trial court erred in admitting certain evidence at the termination hearing. Specifically, she challenges Jillorna Ucenys qualification as an expert and the reliability of her testimony pertaining to Mother’s CAPI results. Mother also challenges the admission of Sara Stolinas’ progress reports and certain testimony given by Stolinas. Finally, Mother argues that there is insufficient evidence to support the trial court’s judgment terminating her parental rights.

I. Admission of Evidence

The admission of evidence is entrusted to the sound discretion of the trial court. In re A.J., 877 N.E.2d 805, 813 (Ind.Ct.App.2007) (citation omitted), trans. denied. We will find an abuse of discretion only where the trial court’s decision is against the logic and effect of the facts and circumstances before the court. Id. Not all error is reversible, however. In re Termination of Parent-Child Relationship of E.T., 808 N.E.2d 639, 646 (Ind.2004) (citing D.W.S. v. L.D.S., 654 N.E.2d 1170, 1173 (Ind.Ct.App.1995)). “The improper admission of evidence is harmless error when the judgment is supported by substantial independent evidence to satisfy the reviewing court that there is no substantial likelihood that the questioned evidence contributed to the judgment.” Id.

A. Jilloma Uceny and CAPI

At the termination hearing, MCDCS stated that it was not offering Jillorna Uceny, a social worker who had given Mother a parenting assessment, as an expert. However, the trial court found that Uceny was an expert. See Tr. p. 49-50. Mother argues that the trial court erred in qualifying Uceny as an expert witness because she is a social worker, which Mother claims is prohibited by Indiana Code section 25-23.6-4-6. Mother also argues that Uceny lacks the necessary expert qualifications under Indiana Evidence Rule 702 and challenges the reliability of Ucenys testimony pertaining to Mother’s CAPI results.

In arguing that Uceny was prohibited from giving expert testimony because she is a social worker, Mother relies on this Court’s holding in State v. Velasquez, 944 N.E.2d 34 (Ind.Ct.App.2011), trans. granted, opinion vacated, order vacated and trans. denied. The Velasquez Court briefly addressed the issue of social workers as expert witnesses, saying:

While Indiana Code section 25-23.6-4-6 prohibits a licensed clinical social worker from providing expert testimony, it does not prohibit an expert from providing factual testimony. It also cannot prohibit a licensed clinical social worker from being qualified as an expert as Evidence Rule 702(a) allows that a witness may qualify as an expert on the basis of experience alone. See Evid. R. 702(a); Burnett v. State, 815 N.E.2d 201, 204 (Ind.Ct.App.2004) (“[A] witness may qualify as an expert on the basis of practical experience alone.”).

944 N.E.2d at 43. Mother interprets Velasquez to say that a social worker may only give factual testimony. We do not agree. The Velasquez Court acknowledged the conflict between Section 25-23.6-4-6 and the Rules of Evidence but said the statute could not prohibit an expert from providing factual testimony or “prohibit a licensed clinical social worker from being qualified as an expert as Evidence Rule 702(a) allows....” Id.

While Indiana Code section 25-23.6-4-6 prohibits a social worker from offering expert testimony, the statute cannot prevent a trial court from qualifying a social worker as an expert witness. When there is a conflict between a statute and a rule of evidence, the rule of evidence prevails over any statute. See Humbert v. Smith, 664 N.E.2d 356, 357 (Ind.1996). Indiana Evidence Rule 702 governs the admission of expert testimony, and provides that “If scientific, technical, or other specialized knowledge will assist the trier or fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Ind. Evidence Rule 702(a). Rule 702 has no social-worker exclusion. Thus, because Section 25-23.6-4-6 and Rule 702 are in conflict, Rule 702 controls, and to the extent Velasquez can be read to say otherwise, we would disagree. We must now determine whether the trial court erred in determining that Uceny was an expert witness.

With regard to expert testimony, Indiana Evidence Rule 702 provides:

(a) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
(b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.

Rule 702 guides the admission of expert scientific testimony by requiring trial courts to be satisfied that expert opinions both assist the trier of fact and are based on reliable principles. Person v. Shipley, 962 N.E.2d 1192, 1194 (Ind.2012) (citations omitted). “A trial court’s determination regarding the admissibility of expert testimony under Rule 702 is a matter within its broad discretion and will be reversed only for abuse of that discretion.” Id. The trial court’s decision is presumed to be correct, and the party challenging the decision has the burden of persuading us that the trial court has abused its discretion. Id.

A witness is qualified as an expert “by knowledge, skill, experience, training, or education,” and only one of these characteristics is necessary. Evid. R. 702(a); Bennett v. Richmond, 960 N.E.2d 782, 786 (Ind.2012) (citations omitted). Uceny has an undergraduate degree in psychology from Purdue University and a master’s degree in social work from Indiana University. She is also a board-certified dip-lómate, which means that she is the highest level of her profession and can make certain diagnoses without medical supervision. Uceny owns and operates Brighter Tomorrows, where she provides therapy and conducts parenting assessments. Uceny testified that she has conducted parenting assessments for more than twenty-five years and learned to administer them under the supervision of a psychologist. As to the specific test at issue, CAPI, Uceny testified about the test’s creation, function, and its acceptance and widespread use in the psychiatric community. We conclude that this amount of education, experience, and familiarity with parenting assessments, particularly CAPI, constitutes sufficient knowledge and experience to qualify Uceny as an expert. And Uceny’s testimony would clearly assist the trier of fact in understanding the detailed, numeric CAPI results and how those results reflected on Mother’s parenting abilities. Mother has not demonstrated that the trial court abused its discretion in qualifying Uceny as an expert witness under Rule 702.

Mother also argues that the trial court erred in allowing Uceny’s expert testimony because there was no showing that CAPI is a test based on reliable scientific methodology or technique. Under Indiana Evidence Rule 702, no specific test is required to establish a scientific process’s reliability. Troxell v. State, 778 N.E.2d 811, 815 (Ind.2002) (citing McGrew v. State, 682 N.E.2d 1289, 1292 (Ind.1997)). Instead, trial courts may consider: (1) whether the technique has been or can be empirically tested; (2) whether the technique has been subjected to peer review and publication; (8) the known or potential rate of error, as well as the existence and maintenance of standards controlling the technique’s operation; and (4) general acceptance within the relevant scientific community. Id. Although all of these factors and others may be relevant, none is by itself dispositive, and not all need to be present for a trial court to find that the proffered evidence rests upon reliable principles. See Bond v. State, 925 N.E.2d 773, 779 (Ind.Ct.App.2010) (citing McGrew, 682 N.E.2d at 1292), trans. denied.

Uceny testified that CAPI was created in 1977 at Northern Illinois University by Dr. Joel Millner. She testified that CAPI is accepted and used widely in the psychiatric community and has been the subject of peer-review studies. She also explained that CAPI is a standardized test based on five “constructs,” and it has been “administered over many ... samples of people and then normed[,] and so there are three different validity scales in the cap ... that are used to make sure that we are getting an accurate result.” Tr. p. 45. Uceny confirmed that there have been peer-reviewed studies of CAPI, but she was unable to cite specific studies or articles while on the witness stand. Although Mother affords it great weight, Uceny’s inability to name specific studies or statistics on the stand is not determinative. See Bond, 925 N.E.2d at 779 (“Although all of these factors and others may be relevant, none is by itself dispositive, and not all need be present for a trial court to find the proffered evidence rests upon reliable principles.”). We conclude that Uceny’s testimony was sufficient to establish CAPI’s reliability.

B. Sara Stolinas’ Progress Reports and Testimony

Mother claims that the trial court erred by admitting Sara Stolinas’ progress reports and by allowing Stolinas to testify about Mother’s compliance and participation in services. At trial, Mother objected to the admission of the progress reports on hearsay grounds. In addition to Stolinas’ summaries of Mother’s progress, the reports included other documents such as Mother’s counseling records, treatment plans, parenting-time observations, and a number of other parenting-assessment documents. MCDCS argued that the reports satisfied the business-record exception to the hearsay rule.

On appeal, MCDCS no longer relies on the business-record exception; it concedes the records do not satisfy the exception’s requirements. Appellee’s Br. p. 23. However, MCDCS argues that the progress reports were not admitted for the truth of the matter asserted, but rather “to show why [MC] DCS had filed for termination of Mother’s parental rights.” Id. at 22. But even if this were so, the probative value of these reports to show why termination was sought was substantially outweighed by the danger of unfair prejudice given their contents. See Ind. Evidence Rule 408 (“[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice_”). Thus, we conclude that the trial court erred in admitting the progress reports. Although this was error, not all error is reversible. “The improper admission of evidence is harmless error when the judgment is supported by substantial independent evidence to satisfy the reviewing court that there is no substantial likelihood that the questioned evidence contributed to the judgment.” In re E.T., 808 N.E.2d at 646 (citing D.W.S., 654 N.E.2d at 1173). Notably, the trial court’s judgment terminating Mother’s parental rights does not refer to the progress reports or their contents, and as explained below, there is sufficient independent evidence to satisfy the court’s judgment in this case. This error was therefore harmless.

Mother also argues that the trial court erred by allowing Stolinas to testify about Mother’s participation in services and her overall compliance with the case plan. At the termination hearing, Mother objected to Stolinas giving an opinion on this issue because of her lack of personal knowledge. Stolinas admitted that the majority of her knowledge regarding Mother’s compliance came from service provider’s statements to her, which would be inadmissible hearsay. To the extent Stolinas’ testimony was based upon the progress reports and therefore error, it was brief and cumulative of other testimony regarding Mother’s participation and compliance with court-ordered services, and was therefore harmless error.

II. Termination of Parental Rights

The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children. In re I.A., 984 N.E.2d 1127, 1132 (Ind.2010). “A parent’s interest in the care, custody, and control of his or her children is ‘perhaps the oldest of the fundamental liberty issues.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)). “Indeed[,] the parent-child relationship is ‘one of the most valued relationships in our culture.’” Id. (quoting Neal v. DeKalb Cnty. Div. of Family & Children, 796 N.E.2d 280, 285 (Ind.2003)). Nevertheless, parental rights are “not absolute and must be subordinated to the child’s interests when determining the proper disposition of a petition to terminate parental rights.” Id. (citing In re D.D., 804 N.E.2d 258, 264-65 (Ind.Ct.App.2004), trans. denied).

When reviewing the termination of parental rights, we will not reweigh the evidence or judge the credibility of the witnesses. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind.2005) (citation omitted). Instead, we consider only the evidence and reasonable inferences that are most favorable to the judgment. Id. Here, the trial court made specific findings and conclusions in its termination order. When a trial court enters specific findings of fact and conclusions thereon, we apply a two-tiered standard of review. First, we determine whether the evidence supports the findings, and second, we determine whether the findings support the judgment. Id. We -will set aside the court’s judgment terminating a parent-child relationship only if it is clearly erroneous. Id. Clear error is that which leaves us with a definite and firm conviction that a mistake has been made. In re A.B., 888 N.E.2d 231, 235 (Ind.Ct.App.2008) (citation omitted), trans. denied.

In Indiana, before parental rights may be involuntarily terminated, the State is required to allege and prove, among other things:

(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child.
(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of the child.

Ind.Code § 31-35-2-4(b)(2). In addition, the State has the burden of pleading and proving each element of Indiana Code section 31-35-2^4(b) by “ ‘clear and convincing evidence’ ” before the trial court can involuntarily terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind.2009) (quoting Ind.Code § 31-37-14-2). On appeal, Mother challenges the sufficiency of the evidence supporting the trial court’s judgment as to subsection (B) of the termination statute detailed above. See Ind.Code § 31-35-2-4(b)(2)(B).

Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive. The trial court therefore had to find only that one of the three requirements of subsection 2(B) had been met before terminating Mother’s parental rights. In re L.V.N., 799 N.E.2d 63, 69 (Ind.Ct.App.2003). Nevertheless, the trial court found sufficient evidence had been presented to satisfy the eviden-tiary requirements of subsections 2(B)(i) and 2(B)(ii). Because we find it to be dispositive, we address only whether the evidence shows that there is a reasonable probability that the conditions resulting in the children’s removal or continued placement outside Mother’s care will not be remedied. See Ind.Code § 31-35-2-4(b)(2)(B)(i).

When making this determination, a trial court must judge a parent’s fitness to care for his or her child at the time of the termination hearing, taking into consideration evidence of changed conditions. In re I.A., 903 N.E.2d 146, 154 (Ind.Ct.App.2009) (citations omitted). The court must also evaluate the parent’s habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation of the child. Id. Similarly, courts may consider evidence of a parent’s prior criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and lack of adequate housing and employment. Id. The trial court may also consider the services offered to the parent and the parent’s response to those services, as evidence of whether conditions will be remedied. Id.

The purpose of terminating parental rights is not to punish the parent but to protect the children involved. In re D.B., 942 N.E.2d 867, 872 (Ind.Ct.App.2011) (citing In re K.S., 750 N.E.2d 832 (Ind.Ct.App.2001)). The involuntary termination of parental rights is the most extreme sanction a court can impose on a parent because termination severs all of a parent’s rights to his or her children. Id. (citing In re R.H., 892 N.E.2d 144, 149 (Ind.Ct.App.2008)). “Termination of parental rights is therefore intended as a last resort, available only when all other reasonable efforts have failed.” Id.

In determining that there is a reasonable probability the conditions resulting in the children’s removal or continued placement outside Mother’s care will not be remedied, the trial court set forth the evidence regarding Mother’s inability to provide a safe and stable home environment for her sons. See Appellant’s App. p. 45-63. Specifically, Mother failed to fully participate in or benefit from the wide variety of services offered to her, including home-based programs, supervised parenting time, parenting assessments, parenting programs, psychological and psychiatric evaluations, and individual counseling. Even when Mother got a second chance — the trial court denied MCDCS’ 2010 petition to terminate Mother’s parental rights and ordered additional services — her participation and compliance did not improve. In the years since the children’s removal, Mother has made little to no progress in areas of concern and did not demonstrate an understanding of the children’s needs required to parent them appropriately.

Service providers detailed Mother’s lack of progress in her ability to parent the children. Uceny testified that the children were at risk of being abused if returned to Mother’s care, and that her assessment of Mother indicated that Mother was not likely to benefit from the services being offered to her because her low cognitive functioning and emotional immaturity. Uceny explained that Mother viewed the children’s needs as secondary to her own and had indicated no interest in working or supporting herself financially. Uceny recommended terminating Mother’s parental rights. The record also shows that Mother refused to participate in individual counseling and missed nearly half of the sessions in her intensive parenting-skills course, rarely completing her corresponding homework assignments. Some parenting-skills sessions had to end early because Mother would yawn, text, or play with her phone during the sessions. Mother’s number-one priority was herself, not the children. Meanwhile, the children were thriving, both physically and emotionally, in their foster-care placement.

In addition to failing to improve her parenting skills, Mother also failed to resolve her housing and employment issues. Throughout the case, she lacked stable or significant employment. Mother moved twelve times since the children’s removal and she paid for only one of those residences. At the time of the termination hearing, Mother was unemployed and financially supported by her parents. She was living with her brother and sister in a two-bedroom apartment, and she testified that the children could not live there.

The bulk of Mother’s arguments regarding the sufficiency of evidence supporting termination hinge on her claims that certain evidence — particularly Ucen/s testimony — was inadmissible, and because we have found otherwise, these arguments are not persuasive. The remaining arguments amount to invitations to reweigh the evidence; specifically, Mother argues that termination of her rights was premature and that “DCS provided some services but did not make substantial efforts” to reunify her with her children. Appellant’s Br. p. 42. She also contends that she was more engaged in services than the trial court’s judgment reflects, her inability to obtain housing and employment is a result of the poor economy and a past felony conviction, and she may soon begin work as a lifeguard. Id. at 42-43, 45. We do not accept Mother’s invitation to reweigh the evidence, and note that her claims find little to no support in the record.

Instead, our review of the record shows that since the time of the children’s removal four years ago, Mother has demonstrated a persistent unwillingness and inability to take the steps necessary to show she is capable of parenting her children and providing them with a safe and stable home environment, despite MCDCS’ ongoing efforts. There is clear and convincing evidence to support the trial court’s findings and the court’s ultimate determination that there is a reasonable probability the conditions leading to the children’s removal and continued placement outside Mother’s care will not be remedied. We therefore affirm the trial court’s judgment terminating Mother’s parental rights.

Affirmed.

KIRSCH, J., and PYLE, J., concur.

      . At the time, Mother was married to the children’s biological father. His parental rights have also been terminated. Because he does not participate in this appeal, we limit our discussion to Mother.

      . On cross-examination, Uceny said that she had not provided Mother’s counsel with a copy of the CAPI results because the assessment was protected by the ethics of her profession. Tr. p. 73. However, when questioned, Uceny indicated that if subpoenaed, she could provide the test results to Mother's counsel. Id. Mother's counsel again moved to exclude evidence of the test because it was unavailable to counsel. But counsel then admitted that he had not deposed Uceny or subpoenaed her records. Id. at 73-74. The objection was overruled.

      . Mother notes that MCDCS included three documents in its appellate materials that were not introduced into evidence, and it appears this is correct. For that reason, we do not consider them.

      . Mother additionally argues that MCDCS cannot now argue that Uceny was properly qualified as an expert witness because it did not initially offer her as such at trial. We disagree. While MCDCS may not have planned to offer Uceny as an expert, when the issue arose, the parties argued vigorously about her potential expert-witness qualification. Thus, the issue was brought before the trial court, and the court ruled on the matter, finding that Uceny was an expert witness. Therefore, MCDCS has not waived this argument.

      . Indiana Code section 31-35-2-4 was amended by Pub.L. No. 48-2012 (eff. July 1, 2012). The changes to the statute became effective after the filing of the termination petition in this case and are therefore not applicable here.

      . For the first time at the close of her brief, Mother references the trial court’s conclusion that termination of her rights was in the children’s best interests, apparently challenging this conclusion. See Appellant's Br. p. 45. Mother’s only arguments on this issue are that the cause of one of the children’s developmental delays has yet to be determined, that she did not abuse the children when they were in her care, and that her difficulties with the children during parenting time was a result of the children's bond with their foster parents. These brief arguments amount to nothing more than an invitation to reweigh the evidence, and they do not persuade us that the trial court erred in concluding that termination was in the children’s best interests.

      . Mother takes issue with the trial court's verbatim adoption of MCDCS’ proposed findings and conclusions. But as she concedes, verbatim adoption of a party’s proposed findings and conclusions, while not the favored practice, is not prohibited. A.F. v. Marion Cnty. Office of Family & Children, 762 N.E.2d 1244, 1249 (Ind.Ct.App.2002) (citations omitted), trans. denied.

      . There is a separate termination order for each child. The order for B.J.H. spans pages 45-53 of the Appellant’s Appendix, and the order for B.L.H. is found on pages 54-63.


author: BROWN, Judge.

text:
    Josiah WILLIAMS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1211-CR-878.
    Court of Appeals of Indiana.
    June 19, 2013.

      Suzy St. John, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Josiah Williams appeals' his conviction for public intoxication as a class B misdemeanor. Williams raises one issue, which we revise and restate as whether the evidence is sufficient to sustain his conviction. We affirm.

FACTS AND PROCEDURAL HISTORY

On July 14, 2012, Williams, his cousin, and a friend went to Hooters, then to Bartini’s, and then to Tiki Bob’s in Indianapolis. At Tiki Bob’s, Williams unexpectedly encountered his friend Carly, who was celebrating her twenty-first birthday with several Mends. At approximately 2:00 a.m., early’s mother, Michelle, went to Tiki Bob’s to pick up Carly and her friends.

At 3:00 a.m., when Tiki Bob’s closed, Williams, Carly, Michelle, and the others in the group moved outside onto the sidewalk. Michelle began to cross Meridian Street, and a vehicle struck her, causing her to fall down onto the street. Williams immediately went to Michelle’s side and told her not to stand up. Carly began to yell at the driver of the vehicle which had struck her mother, and Williams went over to calm Carly down. A large number of people were in the street and area immediately following the accident.

Indianapolis Metropolitan Police Sergeant Jerry Durham and Officer Matthew Woodings arrived at the scene. Carly, one of her Mends, and a nurse remained with Michelle to wait until an ambulance arrived. The officers attempted to clear the street so that emergency vehicles could access the area to treat Michelle. Most of the people in the street immediately obeyed the officers’ requests to move off of the street.

The officers asked Williams multiple times to step out of the street and go to the sidewalk. Williams stated that he knew Michelle, and the officers told Williams that there were too many people in the street, that he did not need to be in the street, and that he could wait on the sidewalk and let the medics do their job when they arrived. Williams appeared “extremely intoxicated” and “belligerent” to Sergeant Durham, who further testified that Williams had “a very strong odor of an alcoholic beverage about his breath and person, glossy red, bloodshot eyes, slurred speech and very unsteady balance.” Transcript at 9-10. Officer Woodings gave several loud verbal commands to exit the street, but Williams “refused to do so and stood still.” Id. at 18. Officer Woodings observed Williams “staggering from side to side.” Id. After Officer Woodings was confident that the streets were going to be clear for the arrival of emergency personnel, he stepped closer to Williams and asked him to move out of the street. However, Sergeant Durham and Officer Woodings “physically had to remove [Williams] from the street for his safety.” Id. at 10. Sergeant Durham held Williams’s right arm, and Officer Wood-ings held Williams’s left arm, and the officers moved Williams toward the sidewalk. Id. at 10-11. Williams “was staggering as [the officers] were trying to escort him to the curb.” Id. at 18-19. Approximately four or five feet from the sidewalk, Williams “jerked his left arm away from Officer Woodings[’s] grasp,” “grabbed [Sergeant Durham’s] hand and shoved [it] off of his arm away from him,” and “a couple of steps away from [the officers] made the comment, ‘I’m out of the f-street now.’” Id. at 11.

On July 14, 2012, the State charged Williams with public intoxication as a class B misdemeanor. On October 4, 2012, the court held a bench trial, at which the State presented the testimony of Sergeant Durham and Officer Woodings, and Williams presented the testimony of Michelle and also testified on his own behalf. Williams stated that he had one beer at Hooters and had “nothing to drink the rest of the night.” Id. at 28. The court found Williams guilty as charged. The court sentenced Williams to 180 days with 178 days suspended.

DISCUSSION

The issue is whether the evidence is sufficient to sustain Williams’s conviction. When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.2009). “We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence.” Id. We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt. Id.

The offense of public intoxication as a class B misdemeanor is governed by Ind. Code § 7.1-5-1-3, which provides:

Subject to section 6.5 of this chapter, it is a Class B misdemeanor for a person to be in a public place or a place of public resort in a state of intoxication caused by the person’s use of alcohol or a controlled substance (as defined in IC 35-48-1-9), if the person:
(1) endangers the person’s life;
(2) endangers the life of another person;
(3) breaches the peace or is in imminent danger of breaching the peace; or
(4) harasses, annoys, or alarms another person.

(Supp. 2012) (eff. July 1, 2012). In its charging information, the State alleged that “[o]n or about July 14, 2012, in Marion County, State of Indiana, at the 200 BLK of S. MERIDIAN ST location, a public place or place of public resort, [Williams], was in a state of intoxication caused by his or her use of alcohol or a controlled substance ...; further, the defendant endangered his ... life or the life of another person; breached the peace; or harassed, annoyed or alarmed another person.” Appellant’s Appendix at 13. Thus, the State was required to prove that Williams was in a public place or place of public resort on Meridian Street in a state of intoxication caused by his use of alcohol or a controlled substance and endangered his life or the life of another person, breached the peace, or harassed, annoyed, or alarmed another person.

Ind.Code 9-13-2-86 provides that “ ‘Intoxicated’ means under the influence of ... alcohol ... so that there is an impaired condition of thought and action and the loss of normal control of a person’s faculties.” “Impairment can be established by evidence of: (1) the consumption of a significant amount of alcohol; (2) impaired attention and reflexes; (3) watery or bloodshot eyes; (4) the odor of alcohol on the breath; (5) unsteady balance; (6) failure of field sobriety tests; and (7) slurred speech.” Vanderlinden v. State, 918 N.E.2d 642, 644 (Ind.Ct.App.2009), trans. denied.

Williams maintains that the State failed to prove beyond a reasonable doubt that he endangered his life or the life of another, breached the peace, or harassed, annoyed or alarmed another person. He contends that there is no nexus between his conduct and his alleged state of intoxication. He argues that the offense of public intoxication “previously required only proof of one’s intoxicated state in a public place,” that the legislature “amended the statute to include additional elements which require the State to prove endangerment, breach of peace, or harassment alarm or annoyance,” and that “ftjhere-fore, to the extent the trial court’s findings suggest it relied solely upon evidence of intoxication to convict, it was error.” Appellant’s Brief at 7. Williams also argues that the situation was very chaotic and emotional and that he was acting with an intent to help Michelle, that the trial court found that Williams’s testimony was credible, and that the statute requires more than insubordination. Williams further maintains that nothing in the record suggests that his behavior would have been different had he not consumed any alcohol at all and that there is no discernable link between his intoxicated state and subsequent behavior. He contends that he could not have been endangering himself by staying at Michelle’s side when police permitted several others to do the same, that there was only the speculative possibility of harm at best, and that under all of the circumstances there is no legitimate reason why Williams’s presence at the scene would have created any more or less danger than early’s presence.

The State maintains that there is clear evidence that Williams was intoxicated, that he was in a public place, and that he endangered himself due to his intoxication. The State asserts that there is evidence beyond Williams’s intoxication that establishes the endangerment element and that the evidence shows that a large crowd gathered near the accident, that the police wanted to clear the street so that emergency responders could arrive quickly to aid Michelle, that Williams refused to move off of the street although commanded by the police several times to do so, and that Williams remained in the middle of a major city street exposed to danger from any traffic. The State argues that Williams was belligerent with the officers, which the officers testified they believed was due to his intoxicated state, that Williams’s belligerent attitude could have led him to physically assault the officers, an act that would have endangered the officers and Williams, and that in fact Williams physically jerked his arm away from one officer and shoved the other officer’s hand. The State also contends that Williams’s failure to clear the streets when instructed resulted in an imminent danger of a breach of the peace and that Williams’s intoxicated condition, coupled with his belligerent attitude, could readily have resulted in physical violence between Williams and the officers.

In his reply brief, Williams argues that, under the statute, evidence of actual endangerment is required, that Williams could not have been exposed to danger from oncoming traffic if he remained by his friend’s side because the street had been blocked off by police, and that he did not actually physically assault the officers. Williams also argues that “breach of the peace” was not the theory of guilt advanced at trial. Appellant’s Reply Brief at 3.

We first note that Williams does not argue that he was not in a public place, and the evidence shows that he was on Meridian Street in downtown Indianapolis outside Tiki Bob’s, a public place, at the time that the officers observed his behavior and ordered him to move to the sidewalk. To the extent that he argues that the evidence is insufficient to show that he was intoxicated, the evidence most favorable to his conviction reveals that Officer Woodings observed Williams “staggering from side to side,” and that Sergeant Durham testified that Williams appeared “extremely intoxicated” and “belligerent” and that he noticed “a very strong odor” of alcohol coming from Williams’s breath, that Williams’s eyes were bloodshot and “glossy red,” and that Williams had “slurred speech” and a “very unsteady balance.” Transcript at 9-10,18.

To the extent that Williams asserts that the trial court found that Williams’s testimony was credible, we note that the court made the comment at trial that “if [Williams] had just heeded to policeman’s advice and requests, none of us would have been here today.” Id. at 35. At sentencing, the court stated that Williams was “very credible” and that “most people I don’t believe a word they say sometimes when they testify, but ... what sticks in the back of my mind is why 28 years of law enforcement experience is gonna come in here and make this story up and I just don’t see them doing that.” Id. Near the end of the trial before finding Williams guilty, the trial court noted the testimony that Williams was staggering and extremely intoxicated and stated that “[o]ne beer in however many hours is over here,” that “[t]he two don’t obviously add up,” and that “[t]he Court finds the testimony of the officers more credible.... ” Id. at 34. On appeal, we may not reweigh the evidence or judge witness credibility. See Bailey, 907 N.E.2d at 1005. Further, in light of the evidence, we find Williams’s argument that the trial court’s comment that, if Williams had heeded the officers’ requests, “none of us would have been here today,” insinuates that the court found Williams guilty of public intoxication for the sole reason that he failed to comply with the officers’ orders to be unpersuasive. Transcript at 35. The testimony which the court noted showed that Williams was extremely intoxicated and staggering in the street, that he refused to move to the sidewalk after receiving several verbal commands to do so, that he was eventually escorted to the sidewalk so that officers could “deal with him so [ ] [they] did not get struck by cars,” that he was “belligerent at that time” which the officers “associate^] [] with alcohol,” and that the officers believed that Williams was “an intoxicated person who was a danger to himself.” Id. at 14-15.

Moreover, with respect to Williams’s assertion that the evidence is insufficient to prove the elements of the offense of public intoxication, the evidence most favorable to the conviction reveals that police attempted to clear the street where Michelle had been struck so that emergency vehicles could access the area to treat her, that Williams was extremely intoxicated and staggered from side to side, that he refused to move off of the street and to the sidewalk although commanded by the police multiple times to do so, that he was belligerent with the officers, which the officers believed was due to his intoxicated condition, that Williams did not move out of the street until the officers physically escorted him off of the street, that he was staggering as the officers escorted him to the sidewalk, and that he jerked his arm away from Officer Wood-ings and shoved Sergeant Durham’s hand away from him. Sergeant Durham testified that the officers had to escort Williams off of the street and “over to the sidewalk to deal with him so that [they] did not get struck by cars” and that the officers believed that Williams was “an intoxicated person who was a danger to himself.” Id. at 14.

Based upon the record, we cannot say that the evidence presented by the State is insufficient for a reasonable trier of fact to conclude that Williams was in a public place in a state of intoxication and endangered himself or other persons, breached the peace, or harassed, annoyed, or alarmed another person. Accordingly, we conclude that evidence of probative value exists from which the trial court as the trier of fact could have found Williams guilty beyond a reasonable doubt of public intoxication as a class B misdemeanor.

CONCLUSION

For the foregoing reasons, we affirm Williams’s conviction for public intoxication as a class B misdemeanor.

Affirmed.

RILEY, J., and BRADFORD, J., concur.

      . Prior to the amendment effective July 1, 2012, Ind.Code § 7.1 — 5—1—3 provided that "[i]t is a Class B misdemeanor for a person to be in a public place or a place of public resort in a state of intoxication caused by the person’s use of alcohol or a controlled substance (as defined in IC 35-48-1-9).”