In Re the Matter of R.K.: A Child Alleged to be a Child in Need of Services, A.K. v. The Indiana Department of Child Services ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any Dec 27 2013, 10:02 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARIA S. BUSSABARGER ROBERT J. HENKE
Maris S. Bussabarger, Attorney at Law, LLC DCS Central Administration
Corydon, Indiana
AARON J. SPOLARICH
Indiana Department of Child Services
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE MATTER OF R.K.: )
A CHILD ALLEGED TO BE A CHILD IN NEED )
OF SERVICES, )
)
A.K. )
)
Appellant-Respondent, )
)
vs. ) No. 31A01-1307-JC-310
)
THE INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
)
APPEAL FROM THE HARRISON CIRCUIT COURT
The Honorable Larry Medlock, Special Judge
Cause No. 31C01-1102-JC-03
December 27, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
A.K. (Mother) appeals from the juvenile court’s order awarding custody of R.K., Jr.
(the Child) to R.K., Sr. (Father), contending that the juvenile court abused its discretion by
doing so without notice to Mother and without conducting a sufficient evidentiary hearing.
We reverse and remand.
On February 22, 2011, the Harrison County Department of Child Services (HCDCS)
filed a petition asking the juvenile court’s permission to commence a CHINS action with
respect to the Child. The juvenile court approved the request to file the petition, the petition
was filed by HCDCS, and an initial detention hearing was conducted that same day. On July
8, 2011, Mother and Father admitted that the Child was a CHINS, and a dispositional hearing
was held on August 26, 2011. The juvenile court’s dispositional order, entered on September
6, 2011, provided that “[t]he goal of the case activity is reunification of the child/parent
relationship.” Appellee’s Appendix. at 3.1
On March 9, 2012, the juvenile court conducted a review hearing and issued its order
later that same month approving a permanency plan for the Child. In the order, the trial court
found that of the permanency options available, it was “most appropriate and consistent with
the best interest of the child to return to or continue in the child’s existing custodial care
with: [Father], and the father to obtain custody.” Id. at 6. The juvenile court’s order
approved a permanency plan calling for the Child to reunify “with Mother or permanent
custodian [sic] with the father.” Id. at 7.
1
This dispositional order pertained solely to Mother.
2
On August 31, 2012, the juvenile court held a review hearing and on September 24,
2012, issued its order approving a permanency plan finding that “[o]f the permanency
planning options available, the Court finds it is most appropriate and consistent with the best
interests of the child to return to the care of [Mother] or [Father].” Id. at 10. The juvenile
court then entered an order providing for the “permanency plan for the child of: reunification
with [Mother] or permanent custodian [sic] with [Father]. . . .” Id.
The December 7, 2012 review hearing was vacated and reset for January 11, 2013. In
the meanwhile, the HCDCS and CASA filed progress reports in preparation for the upcoming
hearing. At the January 11, 2012 review hearing, no witnesses were sworn and those present
discussed what they believed was the purpose of the hearing. After hearing the positions of
the various parties to the proceeding, the trial court announced its intention to modify custody
such that it would be transferred to Father, who lives with his mother in Virginia. Mother’s
counsel argued that there was no petition to modify custody filed by Father in the CHINS
action, but acknowledged that the HCDCS’s position was to transfer custody to Father.
Mother’s counsel argued that Mother had not had notice or the opportunity to prepare for
anything other than a review hearing.
The juvenile court stated its belief that it possessed jurisdiction in both the dissolution
action involving modification of custody of the Child and in the CHINS action. Indeed, Ind.
Code Ann. § 31-30-1-12(a) (West, Westlaw current through 2013 1st Reg. Sess. & 1st Reg.
Technical Sess.) provides for concurrent original jurisdiction of a court having jurisdiction of
a child custody proceeding in a dissolution action and with a juvenile court for purposes of
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modifying custody of a child subject to that court’s jurisdiction because the child has been
alleged to be a CHINS. On March 11, 2011, Father had filed an emergency verified petition
to modify custody and visitation in Mother and Father’s dissolution proceeding. We are
unable to determine if or when the trial court in the dissolution proceeding heard that
petition. The trial court then discussed entering an order consistent with the one entered in
the CHINS action in the dissolution action.
Nonetheless, our Supreme Court has recently expressed the need for more formality
and for a proper evidentiary hearing as provided for in the Indiana Code in which the formal
procedures set forth in the Indiana Trial Rules are utilized in proceedings to modify a child
custody order. See Wilson v. Myers, No. 71S03-1305-DR-399 (Ind. Nov. 5, 2013). In
Wilson as in this case, no witnesses were sworn or cross-examined, and while reports were
filed with the juvenile court, no documents were introduced or admitted. Based upon the
record we have before us, we cannot assume the statutory factors set forth in Ind. Code Ann.
§ 31-17-2-8 (West, Westlaw current through 2013 1st Reg. Sess. & 1st Reg. Technical Sess.)
were considered by the juvenile court in modifying custody of the Child. Thus, consistent
with our Supreme Court’s holding in Wilson, we find that the juvenile court in this case
abused its discretion by issuing an order modifying custody of the Child without a formal
evidentiary hearing. The HCDCS concedes as much in its brief.2 We vacate the trial court’s
order and remand the matter for an evidentiary hearing concerning modification of custody of
2
Father has not filed a brief, nor has he participated in this appeal. “A party of record in the trial court . . .
shall be a party on appeal. . . .”. Ind. Rule of Appellate Procedure 17(A).
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the Child.
Mother also contends that she was not given notice of Father’s modification request.
Although Father’s request was filed in the dissolution proceeding, Mother was a party to that
action as well and had notice of Father’s petition. We need not discuss this contention
further.
One matter we must discuss is the effect of our decision to vacate the juvenile court’s
order on the modification that has already occurred. Mother requests that we restore custody
of the Child to her because of the defective manner in which the modification was carried out
and ordered. Again, we turn to the holding in Wilson for guidance. In Wilson, our Supreme
Court ordered that the status quo continue in order to minimize, if not completely avoid,
further disruption to the children, who had been moved from their community and school to
live in another state. The Supreme Court did so without expressing an opinion on the
propriety of the custody modification decision.
In particular, the Supreme Court stated the following:
Therefore, while we vacate the trial court’s order, we cannot easily “reverse”
what the order has already done. Simply put, the current living arrangement
was not properly established, but at this point it is what it is and it is our
obligation, in the best interests of the children, not to exacerbate the problem
or to encourage the practice followed here.
Slip op. at 9.
Judgment vacated and remanded.
KIRSCH, J., and BAILEY, J., concur.
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