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In re S.A.

Court of Appeals of Indiana

August 15, 2014

IN THE MATTER OF: S. A. (Minor Child), CHILD IN NEED OF SERVICES And M. H. (Father), Appellant-Respondent,

Page 603

APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Marilyn Moores, Judge. The Honorable Diana Burleson, Magistrate. Cause No. 49D09-1306-JC-16347.


ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; ROBERT J. HENKE, Deputy Attorney General; DAVID E. COREY, Deputy Attorney General, Indianapolis, Indiana.

RILEY, Judge. MATHIAS, J. and CRONE, J. concur.


Page 604

RILEY, Judge


Appellant-Respondent, M.H. (Father), appeals the trial court's Order continuing the adjudication of his minor child, S.A. (the Child), as a Child in Need of Services (CHINS).

We reverse.


Father raises two issues on appeal, one of which we find dispositive and restate as follows: Whether the trial court erred in adjudicating the Child as a CHINS.

Page 605


A.A. (Mother)[1] and Father have a son together, the Child, born on August 18, 2011, in Indianapolis, Indiana. Father spent the first two years of the Child's life serving on active duty in the United States Navy. Although Father was present for the Child's birth, he did not establish paternity until after the commencement of the CHINS proceedings at the center of this case. When Father was discharged from the Navy at the end of 2013, he had seen the Child only one other time since birth. Father concedes that he has never paid any child support or otherwise furnished any items for the Child's care.

On June 22, 2013, the Indiana Department of Child Services (DCS) received a report of child neglect involving Mother and the Child. The reporting party alleged, in part, that Mother's habitual heroin use prevented her from adequately caring for the Child and, as a result, the Child's maternal grandmother (Grandmother) had taken the Child into her home. In particular, the report conveyed that Mother used heroin in the Child's presence; that she and her boyfriend, A.S., were living in a motel; that Mother and A.S. have a violent relationship; and that the Child has scars on his hands from cigarette burns.

That same day, DCS commenced its investigation by visiting Grandmother's home to see the Child and to interview Grandmother. Grandmother informed DCS that she and the Child's step-grandfather were seeking temporary guardianship over the Child. On June 25, 2013, DCS interviewed Mother, who eventually admitted that she had been using heroin for two years but denied the allegations that she used heroin in the Child's presence and that her relationship with A.S. was violent. Because the Child was already living with Grandmother, DCS did not take the Child into its custody. Having no information about the Child's alleged Father other than his name, DCS attempted to contact him through the social media website Facebook.

On June 27, 2013, the trial court authorized DCS to file a petition alleging the Child to be a CHINS. In addition to details about Mother's extensive drug use and lack of stable housing, DCS supported its CHINS petition by claiming that the Child's " alleged [F]ather . . . has not successfully demonstrated the ability and willingness to appropriately parent his [C]hild, and his whereabouts are currently unknown." (Appellant's App. p. 25). That same day, the trial court held a joint detention and initial hearing and found that the Child's removal from Mother's custody " was necessary to protect the [Child]." (Appellant's App. p. 37). The trial court granted temporary wardship of the Child to DCS and ordered that the Child be placed with Grandmother. Father was not present at the initial hearing. Mother explained that she had not seen Father for more than a year and was unaware of his whereabouts. The trial court directed DCS to serve Father or publish notice prior to the next hearing.

On July 19, 2013, the trial court resumed the initial hearing. Father did not appear. Although it is unclear whether DCS was able to serve Father with notice of the hearing, it is apparent that Father somehow became aware of the CHINS proceedings because on July 25, 2013, he filed a motion with the court requesting " scientific paternity testing." (Appellant's App. p.

Page 606

55). In his motion, Father explained that he was stationed in Corpus Christi, Texas, and requested that he be permitted to appear at future proceedings telephonically. On August 2, 2013, the trial court conducted a third initial hearing. Father appeared by telephone and requested the assistance of counsel. Accordingly, the trial court entered a denial of the allegations raised in the CHINS petition on Father's behalf and appointed a public defender to represent him. Also at this time, the trial court granted Father's motion to establish paternity, ordering Father, Mother, and the Child to undergo DNA testing.

On September 13, 2013, DCS and Mother submitted an agreement to the court in which Mother admitted to certain allegations raised in the CHINS petition. Pursuant to this agreement, the trial court adjudicated the Child to be a CHINS. The trial court then held a dispositional hearing and ordered Mother to participate in DCS-recommended services. Also, having considered, in part, " the alternatives for the care, treatment, rehabilitation, or placement of the [Child,]" the trial court ordered that the Child's placement remain with Grandmother as it " [l]east interferes with family autonomy." (Appellant's App. pp. 84, 86). Because the results of the DNA testing were not available at this time, the trial court rescheduled the proceedings relating to Father.

Father's paternity to the Child was conclusively established on November 4, 2013. At a hearing on November 15, 2013, Father's attorney appeared on his behalf and requested a fact-finding hearing. Father's attorney also conveyed Father's desire to be granted custody of the Child. The trial court set the matter for a fact-finding hearing and granted Father supervised parenting time.

At the end of November 2013, Father was discharged from the Navy. He subsequently moved in to his parents' home in Indianapolis and obtained employment with the United Parcel Service. Upon his return to Indianapolis, Father also contacted DCS and the Child's court appointed special advocate (CASA) regarding the CHINS proceedings. Every day thereafter, Father spent time with the Child at Grandmother's house. DCS did not observe any of these visits, but Grandmother reported to DCS that, with the exception of some nervousness and difficulty with diaper changing, Father " interacts well with [the Child]." (Transcript p. 21).

The day before the fact-finding hearing, on December 19, 2013, Father attended a Child and Family Team Meeting with DCS and the CASA. There, Father disclosed that he had been diagnosed and treated for post-traumatic stress disorder (PTSD) while on active duty. According to Father, he was hospitalized for four months at University Behavioral Health in Denton, Texas, because he " was having difficulty sleeping, [] couldn't cope with [his] emotions, [and] was dealing with extreme depression." (Tr. p. 38). Father explained that after he was released from the hospital in May of 2013, he briefly continued to attend counseling but was no longer receiving treatment.

On December 20, 2013, the trial court held a fact-finding hearing. During the hearing, DCS and the CASA recommended that the trial court continue the Child's CHINS adjudication. Both testified about their concerns regarding the Child's unfamiliarity with Father, as well as Father's lack of prior parenting experience. In addition, based upon Father's revelation that he had been treated for PTSD, DCS and the CASA agreed that Father should undergo a psychological evaluation. At the close of the evidence, the trial court acknowledged that Father's inability " to care for the [C]hild" was due

Page 607

to his out-of-state military service. (Tr. p. 55). Nevertheless, the trial court criticized Father for his failure to establish paternity " a lot sooner" and also expressed its concern that Father could not precisely recall when he had been released from his PTSD treatment program. (Tr. p. 55). Moreover, the trial court emphasized Mother's near-completion of her services and explained its preference that the Child eventually be released to Mother. Accordingly, the trial court issued written findings in ...

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