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M.B. v. Barnes

Court of Appeals of Indiana

July 29, 2015

In re the Custody of: M.B. b/n/f Stephanie Choate and Dustin Choate, Appellants-Petitioners,
v.
Shalena Barnes and Stephen West, Appellees-Respondents,

Appeal from the Posey Circuit Court. The Honorable James M. Redwine, Judge. Cause No. 65C01-1407-MI-247.

ATTORNEY FOR APPELLANTS: Raymond P. Dudlo, Bamberger, Foreman, Oswald and Hahn, LLP, Evansville, Indiana.

OPINION

Page 931

Robb, Judge.

Case Summary and Issue

[¶1] Stephanie Choate and Dustin Choate appeal the dismissal of their independent action seeking emergency custody of Stephanie's niece, M.B., who had been adjudicated a child in need of services (" CHINS" ) in a separate proceeding.[1] They raise two issues, one of which we find dispositive: whether the trial court erred in dismissing their action. Concluding the trial court did not err because it had no jurisdiction over a separate custody petition when a CHINS proceeding was pending in the juvenile court, we affirm.

Facts and Procedural History

[¶2] M.B. was born out of wedlock to Shalena Barnes (" Mother" ) in 2011. M.B.'s paternity has never been legally established, although it appears to be undisputed that Steven West (" putative father" ) is her biological father. Stephanie Choate is West's sister, and she is married to Dustin.

[¶3] In January 2014, M.B. was found to be a CHINS in the juvenile court.[2] M.B. was made a ward of the Indiana Department of Child Services (" DCS" ) and placed in foster care with the goal of reunification with Mother. The Choates moved to intervene in the CHINS proceeding seeking to have M.B. placed with them. The juvenile court denied their motion.[3]

[¶4] In July 2014, the Choates filed a Verified Emergency Petition for Custody in the trial court. The Choates alleged:

Page 932

3. [They] seek custody of the minor child because said child has been removed from the Mother and Father's care and placed into foster care by [DCS] in Posey County. The minor child's father is unable to assume the care, custody, and control of her at this time and does not object to [the Choates'] request for custody of his daughter. The minor child's mother is incarcerated and is facing multiple criminal charges. [The Choates] have provided minor child's primary support and care since her birth. The minor child has been placed into foster care by the Posey County [DCS]. The DCS's permanency plan for the child is to remain in foster care until the mother is released from incarceration to pursue reunification with the Mother.
4. [The Choates] strongly believe that the minor child should not be forced to stay in foster care while [they] are fully able to assume the minor child's care, custody, and control.
5. [The Choates] seek full legal and physical custody of the minor child as the natural mother is incarcerated and the natural father is unable to assume ...

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