A.C. v. Ind. Dep't of Child Servs. (In re B.W.)

• Court: Indiana Appellate Court
• Writing for the Court: NAJAM, Judge.
• Citation: A.C. v. Ind. Dep't of Child Servs. (In re B.W.), 17 N.E.3d 299 (Ind. App. 2014)
• Decision Date: 05 September 2014
• Docket Number: No. 27A05–1401–JC–29.,27A05–1401–JC–29.
• Parties: In the Matter of B.W. and A.K., Alleged to be Children in Need of Services, A.C. (Mother), Appellant–Respondent, v. Indiana Department of Child Services, Appellee–Petitioner.

17 N.E.3d 299

In the Matter of B.W. and A.K., Alleged to be Children in Need of ServicesA.C. (Mother), Appellant–Respondent

v.Indiana Department of Child Services, Appellee–Petitioner.

No. 27A05–1401–JC–29.

Court of Appeals of Indiana.

Sept. 5, 2014.

Jerry T. Drook, Grant County Public Defender's Office, Marion, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Robert J. Henke, David E. Corey, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

A.C. (“Mother”) appeals the trial court's orders appointing guardians over her children, A.K. and B.W., following a permanency hearing. Mother presents a single issue for our review, namely, whether the trial court abused its discretion when it appointed guardians over the children. We reverse and remand with instructions.

FACTS AND PROCEDURAL HISTORY

Mother has two children: A.K., born January 19, 2009, and B.W., born January 25, 2011.¹ On approximately September 29, 2011, Mother observed that B.W.'s right arm was swollen. On October 4, Mother took B.W. to her pediatrician, who ordered x-rays, which revealed a fracture. B.W. was referred to Peyton Manning Children's Hospital, and one of her health care providers there concluded that B.W.'s injury was not accidental. B.W. was also diagnosed with four other fractures that “were in different stages of healing, indicating that they may have occurred on more than one occasion.” Appellant's App. at 273. Dr. Cortney Demetris concluded that the injuries had been caused by child abuse.

Dr. Demetris found it “exceptionally difficult to get a medical history from Mother” and observed that Mother “did not appear remorseful or upset that [B.W.] was injured.” Id. Mother and her boyfriend, D.B., were the sole caretakers of B.W. and A.K. When asked about how the injuries occurred, Mother “was inconsistent with her explanation of details.” Exs. Vol. at 30. Mother stated that she had “left the children in the care” of D.B. while she attended night school, and D.B. denied having hurt B.W. Id. The Department of Child Services (“DCS”) removed both children from Mother's care and placed them in foster care.

On October 24, DCS filed petitions alleging that the children were children in need of services (“CHINS”) and the trial court appointed a Guardian ad Litem; on November 14, Mother married D.B.; and on December 16, the trial court found the children to be CHINS and ordered that the children be placed with their maternal great uncle and great aunt. On April 26, 2012, during a fact-finding hearing, Mother and D.B., who DCS named as a custodian of the children in an amended petition, stipulated that B.W. received injuries that would not have occurred but for the act or omission of a parent or custodian and that “there is no adequate explanation for such injuries.” Appellant's App. at 91. Thus, Mother and D.B. stipulated that the children were CHINS.

Following another hearing, on May 24, the trial court entered a dispositional order, which prohibited D.B. from having any contact with the children and which set out a parental participation plan for Mother consisting of twenty-two requirements, including a parenting assessment, a psychological evaluation, and individual therapy. The purpose of the parental participation plan was to reunify Mother with the children.

On June 6, D.B. moved the trial court to dismiss him from the CHINS proceedings because he had filed for dissolution of his marriage to Mother. The trial court granted that motion. And at the end of June 2012, the children were separated from each other and placed with different relatives. B.W. was placed with her paternal aunt and uncle, S.L. and B.L. And A.K. was placed with his father, E.K., and E.K.'s mother, H.K., who live in Ohio.

In October 2012, Laurel Tinsley, a Family Behavioral Specialist with Grant–Blackford Mental Health who was acting as Mother's home-based case manager, wrote a progress report and stated that Mother had been “attending therapy with Tonya Scalf on a weekly basis” and Scalf had reported to Tinsley that Mother “is very insightful in therapy and is making significant progress.” Appellant's App. at 179. Tinsley also reported that Mother was doing “a wonderful job of applying the skills she is learning in home-based services to her interactions with her children during supervised visits.” Id.

In a progress report also dated October 2012, DCS family case manager Michelle Lane stated that Mother

has been actively participating in weekly visitation, counseling and Home–Based services. Both service providers report [Mother] seems to be progressing and actively participating during her appointments. DCS believes she is getting the right tools during these appointments, but is unsure if she is using these skills.

[Mother] has made poor choices in the past that ha[ve] put her children's safety in jeopardy and allowed them to be neglected. DCS is concerned these type of decisions may continue. [Mother] has not been open with DCS and has been very upset when she is asked to explain what is going on in her life. She has also expressed being upset with service providers and CASA at times when they have asked her questions. DCS is concerned she is still making bad decisions and this is why she [is] not being up front with everyone.

Id. at 177.

In December 2012, Tinsley submitted a progress report stating that Mother was continuing to make good progress in therapy with Scalf and in learning home-based services. And in January 2013, case manager Lane submitted a progress report stating that Mother had obtained a new apartment that was “very clean and appropriate” and Mother continued regular supervised visits with the children. Id . at 208. Lane also noted that Mother was in full compliance with the parental participation plan. But Lane stated that Mother had

changed her story [regarding B.W.'s injuries] from what she reported to DCS, law enforcement, and medical personnel during interviews. Medical personnel reported [Mother's] story did not match with [B.W.'s] injuries. [Mother] is now reporting [B.W.'s] father was caring for her, but did not initially report this to anyone. The time frame of when she is reporting [B.W.'s father] cared for [B.W.] does not seem to match when medical professionals believe the injuries occurred. DCS is still unaware of who hurt [B.W.] and if [Mother] can or will keep her children safe.

Id. at 210. Finally, Lane stated that “DCS would ask the court to allow a change in the permanency plan [from reunification with Mother] to termination of parental rights because the children will be out of the home for 15 out of 22 months.” Id. at 209.

Despite DCS's request to change the permanency plan to termination of parental rights, in February 2013, following a hearing, the trial court entered an order approving a permanency plan that states in relevant part as follows:

The Court believes that Mother has lied about the injuries to [B.W.] Mother has given multiple versions. The Court was concerned during today's hearing about Tonya Scalf, Mother's therapist, becoming emotional during her testimony which leads to concern regarding Ms. Scalf's objectivity.

The Court is further concerned about Mother's reasons given for not taking a polygraph regarding the injuries to [B.W.] Mother's reasons were all regarding Mother's own issues, for example, Mother's emotional stress. The Court believes Mother is still protecting a man by not disclosing what she knows about [B.W.'s] injuries.

After hearing all the evidence, recommendations and argument, the Court accepts DCS' recommendation to continue services and efforts to reunify children with Mother. However, [A.K.] shall remain placed with his grandmother, [H.K.]

The Court, reluctantly, authorizes DCS to increase Mother's parenting time with the children, as appropriate.

Id. at 229 (emphasis added).

In April 2013, Lane submitted a progress report to the trial court and stated that Mother was in full compliance with the parental participation plan. But Lane noted that

DCS is concerned with [Mother's] decisions and lack of honesty during the life of this case. She has told at least four different stories of whom [sic] and how she believed her daughter, [B.W.], was harmed. Initially, she reported that she believed [B.W.] had to have been hurt in her boyfriend [D.B.'s] care. She quickly changed this story and began stating her two year old son had pulled a toy away from her daughter. [Mother] then began telling DCS and service providers that [B.W.] was hurt by her father, [J.W.] She continued to tell this story for a year despite telling DCS and medical professionals [B.W.] had not been in [J.W.'s] care during the time-frame of her injuries. [Mother] has recently began saying she does not know who harmed her child. DCS is concerned about [Mother's] change in story despite the timeline she originally gave to DCS, law enforcement, and medical personnel. We still have no idea who has harmed [B.W.] [Mother] is refusing to take a recommended therapeutic polygraph to determine history, if she harmed [B.W.] or if she has any knowledge of what happened to [B.W.] [Mother] married her boyfriend, [D.B.], approximately a month after becoming involved with DCS. She married him after agreeing with DCS that [D.B.] would not have any contact with her children. After [Mother's] husband divorced her she began thinking about returning to school and moving out of the area. She began considering moving in with a man and attending Huntington College. [Mother] later decided this would not be a good option after discussing it with service providers. DCS has no knowledge if [Mother] has continued any further relationship with [D.B.] or any other male.

* * *

DCS continues to express concerns to [Mother] about the safety of her children. [Mother] continues to focus on the trauma in her life and herself as a victim. She does not seem to express the same concern for her children and

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