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In re S.A.

Court of Appeals of Indiana

February 12, 2015

In the Matter of: S.A. (Minor Child), Child in Need of Services, And M.H. (Father), Appellant-Respondent,
v.
The Indiana Department of Child Services, Appellee-Petitioner

Appeal from the Marion Superior Court. The Honorable Marilyn Moores, Judge. The Honorable Diana Burleson, Magistrate. Case No. 49D09-1306-JC-16347.

ATTORNEY FOR APPELLANT: Danielle L. Gregory, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Robert J. Henke, David E. Corey, Deputy Attorneys General, Indianapolis, Indiana.

Crone, Judge. Mathias, J., concurs. Riley, J., would deny petition for rehearing.

OPINION

Page 288

Crone, Judge.

[¶ 1] The Indiana Department of Child Services (" DCS" ) has filed a petition for rehearing of our opinion in Matter of S.A., 15 N.E.3d 602 (Ind.Ct.App. 2014). We grant the petition for the limited purpose of dispelling DCS's misconceptions about our opinion and reaffirm our original decision in all respects.

[¶ 2] The facts essential for rehearing are as follows. S.A. (" Child" ) was born in August 2011 to A.A. (" Mother" ). Child's biological father, M.H. (" Father" ), was present for Child's birth but spent the next two years on active duty in the U.S. Navy. Father did not pay support or furnish any items for Child's care.

[¶ 3] In June 2013, DCS received a report alleging that Mother was neglecting Child as a result of using heroin and that Child's maternal grandmother (" Grandmother" ) had taken him into her home. DCS interviewed Grandmother, who stated that she was seeking temporary guardianship of Child. DCS interviewed Mother, who admitted using heroin but denied allegations that she did so in Child's presence and that her relationship with her boyfriend was violent. DCS had no information about Father other than his name and attempted to contact him via Facebook.

[¶ 4] The trial court authorized DCS to file a petition alleging Child to be a child in need of services (" CHINS" ). The petition alleged that Mother was using drugs and lacked stable housing and that Father's whereabouts were unknown. After an initial hearing, the court ordered Child to be placed with Grandmother. Father did not attend the hearing, and Mother said that she had not seen him for over a year and did not know where he was. Father became aware of the proceedings and filed a motion for paternity testing in July 2013. Father stated that he was stationed in Texas and requested permission to appear

Page 289

at future proceedings telephonically. Father did so at the third initial hearing in August 2013 and requested the assistance of counsel. 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. The court also granted Father's motion to establish paternity.

[¶ 5] In September 2013, pursuant to an agreement with DCS, Mother admitted to certain allegations in the CHINS petition, and the trial court adjudicated Child to be a CHINS. The court held a dispositional hearing, ordered Mother to participate in DCS-recommended services, and continued Child's placement with Grandmother. Because the paternity test results were unavailable, the court rescheduled the proceedings as to Father.

[¶ 6] Father's paternity was conclusively established in November 2013. Counsel appeared at a hearing on Father's behalf, requested a factfinding hearing, and expressed Father's desire to obtain custody of Child. The trial court set the matter for a factfinding hearing and granted Father supervised parenting time. At the end of November 2013, Father was discharged from the Navy. He moved into his parents' home and began working for United Parcel Service. He also ...


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