In the Matter of M.S. (A Child Alleged in Need of Services), and K.S., (Mother) v. The Indiana Department of Child Services , 999 N.E.2d 1036 ( 2013 )


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  • FOR PUBLICATION
    ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:
    JOEL C. WIENEKE                              GREGORY F. ZOELLER
    Wieneke Law Office, LLC                      Attorney General of Indiana
    Plainfield, Indiana
    ROBERT J. HENKE
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    IN THE MATTER OF M.S.                        )
    (A Child Alleged in Need of Services),       )
    )
    And                                    )
    )          December 27 2013, 7:39 am
    K.S., (Mother)                               )
    )
    Appellant-Respondent,                  )
    )
    vs.                             )    No. 67A04-1305-JC-212
    )
    THE INDIANA DEPARTMENT OF                    )
    CHILD SERVICES,                              )
    )
    Appellee-Petitioner.                   )
    APPEAL FROM THE PUTNAM CIRCUIT COURT
    The Honorable Matthew L. Headley, Judge
    Cause No. 67C01-1302-JC-14
    December 27, 2013
    OPINION - FOR PUBLICATION
    ROBB, Chief Judge
    Case Summary and Issues
    K.S. (“Mother”) appeals the trial court’s dismissal of the Child in Need of
    Services (“CHINS”) case regarding her son M.S. Mother raises two issues for our
    review: (1) whether the trial court’s out-of-state placement of M.S. with his father
    (“Father”) was error; and (2) whether the Indiana Department of Child Services’ (“DCS”)
    request for dismissal of the CHINS proceedings violated Indiana Code section 31-34-21-
    5.5 by failing to make reasonable efforts to preserve a family. Concluding the trial
    court’s placement of M.S. was not error and that Indiana Code section 31-34-21-5.5 was
    not violated, we affirm.
    Facts and Procedural History
    On February 4, 2013, DCS received a report that Mother was abusing drugs inside
    the home and leaving her five children with their sick grandmother while she went out
    seeking drugs.1 Two days later, on February 6th, a DCS case manager visited Mother’s
    home and requested that Mother submit to a random drug screen. Mother submitted to
    the drug test and admitted to the DCS officer that she would likely “test positive for
    Vicodin, marijuana and morphine.” Transcript at 4. The case manager spoke with the
    children, but Mother would not allow them to leave earshot, and it was apparent to the
    case manager that the children had been coached or were afraid to speak.
    On February 8th, DCS again visited the home and learned that Mother had been
    1
    There were five children involved in the CHINS proceedings; however, this appeal only
    concerns the placement of M.S.
    2
    missing since DCS’s prior visit.      DCS was able to speak with the children, who
    confirmed they had not seen Mother for a few days. The children revealed several facts
    which were of concern to DCS, including: Mother had given one of the children a black
    eye the previous year; one of the children, who was two years old, was kept strapped into
    a car-seat constantly throughout the day and slept in the car-seat at night; the children’s
    grandmother or low-functioning aunt are often left to take care of the children;
    grandmother takes a lot of medicine and often falls asleep while watching the children;
    and grandmother hits the children on the arms and legs with a wooden back-scratcher.
    DCS also observed that the children exhibited a foul odor, as if they had not bathed for a
    while. The children were removed from the home that afternoon.
    DCS filed a CHINS petition on February 12th, alleging Mother was dependent on
    drugs, that she was unable to care for her children, and that proper caregivers had not
    been provided for the children. A detention and initial hearing was held on the same day,
    but Mother failed to appear because DCS was unable to contact her or determine her
    whereabouts. DCS was also in the process of locating M.S.’s father, who was in the
    military and stationed in the State of Washington. Mother’s drug test results came back
    positive for methamphetamine, amphetamine, cocaine, BZE, hydromorphone, and
    morphine. M.S. remained in foster care following the hearing.
    On February 28, 2013, the trial court held an admission hearing at which both
    Mother and Father were present. Mother admitted to the allegations in the CHINS
    petition and that M.S. was a CHINS. The trial court then questioned Father regarding his
    willingness and ability to take care of M.S. Father indicated that he was willing and able
    3
    to care for M.S.; he rented an apartment and lived by himself; and he would be honorably
    discharged from the military in three months and indicated that he planned to find
    employment in the private sector. Mother stated that she would rather see M.S. placed
    with Father than with a foster family but expressed concern about the long-distance
    situation the placement would create.
    On March 4, 2013, the trial court issued a written Order on Initial/Detention and
    Custody Hearing, which provided for the placement of M.S. with Father over the
    objection of DCS. Specifically, the trial court found:
    The placement is an emergency required to protect the health and welfare
    of the children for the following reasons: [M.S.] is currently in a foster
    home which is more restrictive than necessary. [Father] is fit, willing and
    able to care for him and it is in [M.S.’s] best interest to be in the care and
    custody of his father.
    Appellant’s Appendix at 15. The trial court also ordered an inspection of Father’s home
    to determine the safety and fitness of the home for the purpose of housing a child, which
    was to be completed by March 21, 2013.
    A dispositional hearing was held on March 21, 2013. At that time, DCS had not
    yet arranged an inspection of Father’s home in Washington. Mother’s attorney said that
    Mother was living a “transient existence,” tr. at 91; Mother had no permanent residence,
    vehicle, or phone at the time. Because of those circumstances and Mother’s drug-related
    issues, it was pointed out that administration of DCS services for Mother would be
    hindered and that there may be difficulties with arranging supervised visitation.
    Father informed the court that his term in the military would be over at the end of
    May and that he planned to move to San Diego, California at that time. While Father was
    4
    at work, his mother (M.S.’s paternal grandmother), who had gone up to Washington from
    her home in San Diego, had been watching M.S. The parties also discussed custody of
    M.S. at the dispositional hearing. Father had obtained a default divorce from Mother in
    2009 from a court in San Diego County, California. However, that court declined
    jurisdiction over M.S., and thus, no custody determination had ever been made with
    respect to M.S.2
    DCS arranged for an inspection of Father’s home to be conducted by the
    Community and Family Services Foundation (“CFSF”) of Port Orchard, Washington.
    The inspection was done on April 17, 2013. The inspector found no substantial safety
    concerns3 and reported that “[M.S.] was a very happy and well adjusted boy.”
    Appellant’s App. at 28. The report also noted that “[M.S.] was emphatic that he wants to
    live with his father.” Id. at 29.
    On April 23, 2013, DCS filed a motion to dismiss the CHINS proceedings as to
    M.S., stating there was no good cause why the trial court should continue jurisdiction in
    the matter; DCS attached the CFSF report as an exhibit to its motion to dismiss. The trial
    court granted the DCS motion on April 24, 2013. This appeal followed.
    2
    DCS contends that both Father and Mother maintained custody over M.S., since no custody
    order had been made prior to this case. At the dispositional hearing, Father’s attorney stated an intent to
    file a motion seeking a court order officially granting custody of M.S. to Father, and the trial court
    indicated a willingness to assume jurisdiction for the purpose of making a custody determination.
    However, the record does not indicate whether such a motion was ever filed.
    3
    The CFSF report indicated that CFSF’s only concern was that M.S. did not have his own bed,
    which would reportedly be remedied when Father moved to San Diego at the end of the following month.
    5
    Discussion and Decision
    I. Out-of-State Placement of M.S. with Father
    Mother contends that the trial court erred by placing M.S. with Father, who lives
    in the State of Washington, after M.S. was adjudicated a CHINS. Mother points to
    Indiana Code section 31-34-20-1, which regulates the out-of-state placement of a child in
    CHINS proceedings. The pertinent portion of that statute provides:
    (b) A juvenile court may not place a child in a home or facility that is
    located outside Indiana unless:
    (1) the placement is recommended or approved by the director of
    the department or the director’s designee; or
    (2) the juvenile court makes written findings based on clear and
    convincing evidence that:
    (A) the out-of-state placement is appropriate because there is
    not a comparable facility with adequate services located in
    Indiana; or
    (B) the location of the home or facility is within a distance
    not greater than fifty (50) miles from the county of residence
    of the child.
    
    Ind. Code § 31-34-20-1
    (b). Mother argues that the trial court’s placement of M.S.
    violates the statute and is not supported by the evidence. Conversely, DCS contends that
    the child’s placement with Father was not error.4
    Importantly, M.S.’s placement was not recommended or approved by the director
    4
    Mother argues on reply that DCS should be estopped from arguing in favor of M.S.’s out-of-
    state placement with Father because DCS objected to the placement at the hearing on February 28, 2013.
    “[J]udicial estoppel prevents a party from asserting a position in a legal proceeding inconsistent with one
    previously asserted. . . . The purpose of judicial estoppel is to protect litigants from allegedly improper
    conduct by their adversaries.” Am. Family Mut. Ins. Co. v. Ginther, 
    803 N.E.2d 224
    , 234-35 (Ind. Ct.
    App. 2004), trans. denied. While DCS did initially object to the placement, DCS effectively recanted its
    objection during the dispositional hearing on March 21 and by seeking dismissal of the CHINS
    proceedings. Therefore, judicial estoppel is not applicable here. Moreover, the goal of DCS is to protect
    children and serve the best interest of a child; its position in certain proceedings can be expected to
    change as circumstances change or information is developed. The public interest is unlikely to be served
    by prohibiting DCS from changing its position throughout the course of CHINS proceedings.
    6
    of DCS, and the location of Father’s home was more than fifty miles from M.S.’s
    previous residence. Thus, the trial court must have found “based on clear and convincing
    evidence that . . . the out-of-state placement is appropriate because there is not a
    comparable facility with adequate services located in Indiana . . . .” 
    Id.
    When reviewing a judgment requiring proof by clear and convincing evidence, an
    appellate court may not impose its own view as to whether the evidence meets that
    burden. A.J.L. v. D.A.L., 
    912 N.E.2d 866
    , 870 (Ind. Ct. App. 2009). Rather, we ask
    whether a reasonable trier of fact could conclude that the evidence supports the judgment,
    considering only the probative evidence and reasonable inferences that support the
    judgment. 
    Id.
     We will neither reweigh evidence nor judge witness credibility. 
    Id.
    We begin by recognizing that M.S. was not placed in an out-of-state facility
    arbitrarily chosen by the trial court. Rather, M.S. was placed with his natural father.
    Indeed, “Indiana law has long recognized that ‘natural parents are entitled to the custody
    of their minor children, except when they are unsuitable persons to be entrusted with their
    care, control, and education.’” In re Guardianship of B.H., 
    770 N.E.2d 283
    , 285 (Ind.
    2002) (quoting Gilmore v. Kitson, 
    165 Ind. 402
    , 406, 
    74 N.E. 1083
    , 1084 (1905)). We
    believe this presumption in favor of natural parents lends strong support to the trial
    court’s decision to place M.S. with Father.
    At the outset, the trial court’s decision looks very different when the proposed out-
    of-state placement is with a natural parent. The court’s inquiry is whether “out-of-state
    placement is appropriate because there is not a comparable facility with adequate services
    located in Indiana.” 
    Ind. Code § 31-34-20-1
    (b)(2)(A). Placement of a child with his
    7
    natural parent is a unique situation, and no facility—inside or outside of Indiana—is
    equal to it. Here, M.S.’s previous living situation was with a foster family, and Father
    was willing and able to take custody of M.S. At the time of the placement, Father had a
    steady job as a military serviceman and intended to seek employment in the private sector
    upon his discharge, at which time he intended to move to San Diego, California, near
    M.S.’s paternal grandmother. An inspection of Father’s home in Washington revealed
    that the home “met all safety requirements” and that “[M.S.] was a very happy and well
    adjusted boy.” Appellant’s App. at 28. The inspection report also noted that M.S.
    wished to continue living with Father.
    Mother’s argument on appeal points out that Father had not seen M.S. in four
    years and that the trial court had no independent knowledge of the condition of Father’s
    home at the time of placement. Indeed, an inspection of the home was not conducted
    until after M.S. began living with Father in Washington. We believe more in-depth
    questioning of Father and a home inspection prior to placement would have certainly
    been prudent. A more cautious approach would be preferable when placing a child out-
    of-state in this scenario. Although, here, the end result was to the child’s benefit, it is not
    difficult to imagine how this story could have had a not-so-happy ending.
    We believe that the evidence in this case supported the continued out-of-state
    placement with M.S.’s natural father, which the trial court found to be in the child’s best
    interest. Therefore, the trial court’s decision to place M.S. with Father and eventually
    dismiss the CHINS proceedings was not error.
    8
    II. Preservation of Families
    Mother also argues on appeal that DCS neglected its duty under Indiana Code
    section 31-34-21-5.5 to make “reasonable efforts to reunify or preserve a family.” In
    seeking that end, “the child’s health and safety are of paramount concern.” 
    Ind. Code § 31-34-21-5
    .5(a).
    DCS maintains that its reunification efforts were reasonable in this case, pointing
    out that Mother was ill-equipped to care for M.S. and that the primary concerns for
    M.S.’s health and safety were satisfied through continued placement with Father. We
    agree. The health and safety of M.S. was served by his placement with Father, as
    evidenced by the CFSF report stating the same. Moreover, the placement of M.S. with
    Father was a familial reunification of sorts, albeit not of the kind Mother would have
    preferred. In light of the circumstances, we believe DCS’s reunification efforts were
    reasonable.
    Conclusion
    Concluding the trial court’s placement of M.S. with Father was not error and that
    DCS did not violate Indiana Code section 31-34-21-5.5, we affirm.
    Affirmed.
    BARNES, J., concurs.
    BROWN, J., concurs with separate opinion.
    9
    IN THE
    COURT OF APPEALS OF INDIANA
    IN THE MATTER OF M.S.                             )
    (A Child Alleged in Need of Services),            )
    )
    And                                        )
    )
    K.S., (Mother)                                    )
    )
    Appellant-Respondent,                      )
    )
    vs.                              )   No. 67A04-1305-JC-212
    )
    THE INDIANA DEPARTMENT OF                         )
    CHILD SERVICES,                                   )
    )
    Appellee-Petitioner.                       )
    BROWN, Judge, concurring
    The majority observes that the court did not have independent knowledge of the
    condition of Father’s home at the time of M.S.’s placement, noting that the inspection
    was not conducted until after M.S. began living with Father in Washington, and states
    that “[a] more cautious approach would be preferable when placing a child out-of-state in
    this scenario.” Slip op. at 8. Although I concur with the majority, I write separately to
    note that not only do I agree it would have been prudent to perform the home inspection
    prior to placing M.S., but I am also concerned about the subsequent lack of supervision
    provided by the trial court prior to dismissing the CHINS proceedings. M.S. was placed
    with Father on March 4, 2013 at the initial detention hearing and allowed to go with
    Father to Washington.         On April 4, 2013, the court entered a dispositional decree
    10
    regarding Father which ordered him to perform a number of actions including contacting
    the family case manager weekly, notifying the family case manager of any household or
    employment changes and any arrest of any household member, enrolling in programs if
    recommended by the family case manager, keeping all appointments with any service
    providers, signing any releases necessary for the family case manager to monitor
    compliance with the terms of the court’s order, maintaining suitable, safe, and stable
    housing, refraining from consuming or selling any controlled substances, obeying the
    law, submitting to random drug/alcohol screens, meeting all the medical and mental
    health needs of M.S. in a timely and complete manner, providing M.S. with a safe,
    secure, and nurturing environment and being an effective caregiver with the necessary
    skills, knowledge, and abilities to provide M.S. with this type of environment on a long
    term basis, ensuring that M.S. will become engaged in a home-based counseling program,
    and seeing that M.S. is properly fed, supervised, and enrolled in and attending school.
    The decree awarded DCS wardship of M.S. with the responsibility for supervision, care,
    and placement. The decree also scheduled a periodic case review hearing for June 27,
    2013. On April 17, 2013, the CFSF in Washington conducted an inspection of Father’s
    home, and on April 23, 2013, less than a week after the inspection, DCS filed its motion
    to dismiss the CHINS proceedings. The court granted the motion the next day.
    
    Ind. Code § 31-34-21-11
     provides that “[w]hen the juvenile court finds that the
    objectives of the dispositional decree have been met, the court shall discharge the child
    and the child’s parent, guardian, or custodian.”      Clearly the statute contemplates
    achievement of the requirements of the dispositional decree. Here, in the short span of
    11
    nineteen days between the entry of the decree and the filing of the motion to dismiss by
    DCS, there was no time to have the scheduled case review hearing and no showing
    whatsoever of Father’s compliance with any of the terms of the decree.
    Ind. Trial Rule 41(A)(2) allows for voluntary dismissals by order of the court and
    provides in part that “[e]xcept as provided in subsection (1) of this subdivision of this
    rule, an action shall not be dismissed at the plaintiff’s instance save upon order of the
    court and upon such terms and conditions as the court deems proper.” (Emphasis
    added).
    Mother testified at the February 28, 2013 hearing that she was “floored” to see and
    speak to Father because she had not “seen him in almost four and a half years,” he “has
    been an absent . . . parent,” and he was “a stranger” to M.S. Transcript at 65. Father did
    not dispute this. Father also indicated that although he had another child who was eight
    years old at the time of the hearing, he had not seen that child in about seven years.
    Further, Father indicated to the CFSF at the inspection of his Washington apartment that
    he was intending to move to San Diego “soon” and would be establishing a new
    residence there. Appellant’s Appendix at 28. Under such circumstances, despite the
    motion by DCS to dismiss the CHINS petition, I believe that M.S. would have been
    better served had the court denied the motion and ordered that DCS continue with
    services for a period of time to monitor Father’s parenting and compliance with the terms
    of the decree.
    12
    

Document Info

Docket Number: 67A04-1305-JC-212

Citation Numbers: 999 N.E.2d 1036

Filed Date: 12/27/2013

Precedential Status: Precedential

Modified Date: 1/12/2023