E.P. v. Ind. Dep't of Child Servs. (In re M.P.)

• Decision Date: 27 January 2021
• Docket Number: Court of Appeals Case No. 20A-JC-1268
• Citation: 162 N.E.3d 585
• Parties: In the MATTER OF M.P. and J.P., (Minor Children), Children in Need of Services, E.P. (Father), Appellant-Respondent, v. The Indiana Department of Child Services, Appellee-Petitioner, and Child Advocates, Inc., Guardian ad Litem.
• Court: Indiana Appellate Court

162 N.E.3d 585

In the MATTER OF M.P. and J.P., (Minor Children), Children in Need of Services,

E.P. (Father), Appellant-Respondent,

v.The Indiana Department of Child Services, Appellee-Petitioner,andChild Advocates, Inc., Guardian ad Litem.

Court of Appeals Case No. 20A-JC-1268

Court of Appeals of Indiana.

FILED January 27, 2021

Attorney for Appellant: Daniel G. Foote, Indianapolis, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Katherine A. Cornelius, Deputy Attorney General, Indianapolis, Indiana

Attorney for Appellee: Child Advocates, Inc., Kristine Dede Connor, Indianapolis, Indiana

Tavitas, Judge.

Case Summary

[1] E.P. ("Father") appeals: (1) the juvenile court's finding that his children, J.P. and M.P. ("the Children"), are children in need of services ("CHINS"); and (2) the juvenile court's corresponding dispositional order giving wardship of the Children to the Indiana Department of Child Services ("DCS"). Concluding that DCS did not prove by a preponderance of the evidence that the coercive intervention of the court was necessary to ensure the Children's care, and therefore, that the juvenile court clearly erred in adjudicating the Children to be CHINS, we reverse and remand.

Issues

[2] Father raises three issues, which we consolidate and restate as:

I. Whether the juvenile court erred in adjudicating the Children as CHINS.

II. Whether the juvenile court erred when it placed the Children in foster care, rather than with Father.

Facts

[3] Father and R.A. ("Mother") are the parents of two children: J.P., born in February 2005, and M.P., born in December 2010.¹ Father and Mother previously resided together in Georgia, and Father was present for the birth of J.P. in Atlanta. M.P. was born in Massachusetts, and, though Father was not present for the birth, he subsequently signed an affidavit establishing paternity. Mother moved to Indiana with the Children in approximately 2009 and ceased all contact with Father, who had no information on their whereabouts for the next ten years. Father, who continued to reside in Georgia, reported that he contacted the Georgia authorities in either 2009 or 2010 in an attempt to secure either custody or parenting time, but was informed that the proper course of action would be to contact DCS in Indiana. Having no additional information, Father did not pursue the matter any further.

[4] In approximately 2019, Father was able to re-initiate contact with the Children and, from that point on, spoke with them regularly, sometimes between thirty and ninety minutes a day.² Father began voluntarily sending Mother approximately four hundred dollars a month for the benefit of the Children.

[5] On September 21, 2019, J.P. was hospitalized when, during a domestic dispute between Mother and Mother's boyfriend, the child, J.P., was inadvertently struck on the wrist with a baseball bat. On November 21, 2019, DCS received a report of neglect after Mother left the Children at home alone and attempted to stab her now ex-boyfriend. That same day, DCS removed the Children from Mother's home. The following day, DCS filed a CHINS petition alleging, among other things, that Father "ha[s] not demonstrated an ability and willingness to appropriately parent the children, and/or they are unable to ensure the children's safety and well being [sic] while in the custody and care of [Mother]." Appellant's App. Vol. II pp. 7, 39.

[6] The juvenile court held a fact-finding hearing on March 4, 2020. Mother entered a qualified admission that the Children were CHINS. DCS assessment worker, Channing Reed, testified that Father contacted DCS the day that the Children were removed from Mother's home and inquired about securing custody of the Children. Reed was aware that the Children maintained a relationship with Father and spoke with him on the phone regularly. When questioned about why DCS did not place the Children with Father after removal, Reed replied; "Well for one he didn't live her [sic][,]" and: "So, we, I mean, them identifying him, we didn't know for sure, like have the actual evidence that ensured that he actually was the father, so...."³ Tr. Vol. II p. 25. Reed confirmed that DCS considered the most significant barrier to placement with Father to be the fact that Father lived in Georgia.

[7] Father testified that Mother had denied him communication with the Children during the approximately ten years between her relocation to Indiana and the initiation of the CHINS proceedings. Father indicated that he is gainfully employed in the construction industry, though his job requires frequent travel. At the time of the hearing, Father resided in a two-bedroom apartment with his girlfriend and her three children, but Father testified that he had already been approved to move into a three-bedroom apartment. Father explained he had not filed for custody or formal visitation because he was under the impression that Mother was going to allow him informal visitation. Father confirmed that, once he was aware of the Children's whereabouts, he began voluntarily providing four hundred dollars a month in child support and would have done so sooner if he had known where to send the money. Father expressed his desire for the Children to reside with him and to obtain custody.

[8] Child therapist, Regina Yates, testified that the Children were progressing in their therapy and that changing locations or therapists would not constitute a problem for the Children. Yates also indicated that the Children appeared to have a very positive relationship with Father and that Yates had no concerns related to Father. Yates also explained that J.P. was "adamant" about wishing to live with Father. Tr. Vol. II p. 46. The Children's Guardian ad Litem testified that she was "comfortable" with Father, but that she had no interactions with him prior to the morning of the fact-finding hearing. Id. at 54-55.

[9] DCS permanency case manager, Robin Mitchell, testified regarding her concerns about placement of the Children with Father, which included: "not having [a] background check with Father, or fingerprints, or ... and also, we also do a drug screen, those are our three main ones." Id. at 48. Mitchell offered no explanation as to why DCS had not secured any of that information during the more than three months that the case had been pending. Mitchell further testified that Father was compliant and willing to work with DCS. Mitchell testified that, beginning in February, DCS repeatedly attempted to contact its counterpart in Georgia in an attempt to obtain a home-study but that Georgia child welfare services had not responded. Mitchell explained that ordinarily the next step would be for DCS to request travel to Georgia itself to perform a home study; the approval period, however, lasts approximately thirty to sixty days. As of the date of the hearing, Mitchell had apparently not requested permission to travel to Georgia. Without the background checks and home-study, DCS was unwilling to provide a recommendation with respect to placing the Children with Father. During closing arguments, Father sought either custody or placement of the Children with him.

[10] On April 2, 2020, the juvenile court entered an order adjudicating the Children as CHINS containing findings of fact as follows:

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10. By his testimony, [Father] had communication with [the Children] between four and five times in the past 10 years.

11. [Father] did not have a significant relationship with [M.P] prior to DCS involvement.

12. [Father] and [M.P.] need an interpreter to communicate, as [M.P.] does not speak Spanish and [Father] does not speak English well.

13. [Father] did not financially provide for the children from the time of [Mother's] relocation to Indiana 10 (ten) years ago, until approximately a year prior to DCS involvement when [Mother] re-established contact with [Father].

14. [Father's] justification for lack of contact and lack of support was that he was unable to locate [Mother] and [the Children] other than knowing they were in Indiana. [ ]

15. Despite his testimony that in the past year he began to communicate with his children on a regular basis, [Father] did not demonstrate any ability to provide the children with a safe and stable living environment while in the care of [Mother] in the past year.

16. [Father] never made formal efforts to establish child support and/or obtain parenting time prior to DCS involvement.

17. [Father] is employed in a position that requires extensive travel for extended periods of time that allows him to be home about eight (8) days a month.

18. From [Father's] testimony it can be reasonably inferred that he is not available to consistently parent the children, nor is he anticipating acting as a significant caregiver for the children, as he plans for his girlfriend to take care of [the Children] were he to have primary physical custody of the children.

19. When asked how close [the Children] were to his girlfriend, [Father] testified that ["]I could not tell you because (the girlfriend) just met [the Children] one day last year.["]

20. No testimony is elicited from [Father's] girlfriend regarding her fitness and willingness to take care of [Father's] children or to have the children live with her and her 3 children.

21. [Father] resides in a two bed-room apartment with his girlfriend and her three (3) children, ages 3-6.

22. From [Father's] testimony it can be reasonably inferred that his current 2 bedroom apartment lacks sufficient space for two adults and five children, including a teenager who not incidentally has a history of sexual abuse.⁴

23. Despite his testimony that he wants his children to live with him, [Father] has not acquired adequate housing at the time of fact-finding in which his children [J.P.] and [M.P.] could live with him, his girlfriend, and her 3 children.

Appellant's App. Vol. II pp. 203-04.

[11] On June 17, 2020, the juvenile court entered a dispositional decree and placed the Children in...