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In re D.B.

Court of Appeals of Indiana

September 2, 2015

In the Matter of D.B. (Minor Child), a Child in Need of Services: D.B. (Father), Appellant-Respondent,
v.
The Indiana Department of Child Services, Appellee-Petitioner and Child Advocates, Inc. Co-Appellee (Guardian ad Litem)

Appeal from the Marion Superior Court. The Honorable Marilyn A. Moores, Judge. The Honorable Danielle E. Gaughan, Magistrate. Trial Court Cause No. 49D09-1408-JC-1714.

ATTORNEY FOR APPELLANT: Patricia Caress McMath, Marion County Public Defender Agency, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Robert J. Henke, Abigail R. Recker, Deputy Attorneys General, Indianapolis, Indiana.

Baker, Judge. Riley, J., concurs, and Brown, J., dissents with opinion.

OPINION

Baker, Judge.

[¶1] A two-year-old child's mother was murdered by the child's father figure. The child's actual father lives out of state and is a virtual stranger who has had very little contact with Mother. But that fact, alone, is insufficient to support a finding that the child is a child in need of services (CHINS). Likewise, the fact that the Department of Child Services (DCS) was unable to gather sufficient information about the father's fitness as a parent does not meet DCS's burden to prove him unfit. We also find that the statutory framework related to placement of children in other states does not apply when the contemplated placement is with a biological parent. Consequently, we reverse the juvenile court's order finding this child to be a CHINS.

Facts

[¶2] D.B. (Child) was born out of state to D.B. (Father) and C.H. (Mother) on August 28, 2012. Father was present at Child's birth, signed a paternity affidavit, and was involved in Child's life for approximately four months. When Child was four months old, Mother and Child moved to Indianapolis. Father did not relocate with them and now lives in Minnesota.

[¶3] After Mother and Child moved to Indianapolis, Father had little contact with his daughter. He sent money to Mother when she requested it but did not provide regular child support. Father alleges that Mother prevented him from seeing or having contact with Child on a regular basis and that she blocked his phone number, preventing him from calling to check in on Child. At the time the CHINS petition was filed, the last time Father had seen Child was in July 2013.

[¶4] In August 2014, Mother and Child were living with Mother's boyfriend, J.H., and the five-month-old son of Mother and J.H. On August 10, 2014, Mother was shot and killed by J.H. in their home. J.H. then shot himself and later died as a result of the gunshot wound. Child and her half-brother were in the home when the shootings occurred.

[¶5] DCS removed both children on August 10 and filed a petition alleging that Child and her half-brother[1] were CHINS on August 12, 2014. Child was placed in kinship care with her godmother. At that time, Father's whereabouts were unknown. Approximately one week later, Father contacted DCS and then appeared for an initial hearing on August 22, 2014.

[¶6] In September, DCS began the process set forth by the Interstate Compact on the Placement of Children (ICPC) for both Father and Child's maternal grandmother, who lives in Illinois. At the time of the factfinding hearing, the ICPC process had not yet been completed for Father.

[¶7] On October 6, 2014, the juvenile court held a factfinding hearing regarding Child. Following the hearing, the juvenile court found that Child was a CHINS. Among other things, the court found as follows:

6. Prior to the CHINS being filed Father did not see [Child] very often. He last saw her on July 4, 2013 so he had not seen [Child] in over a year. Prior to July 4, 2013, Father had [Child] in his care while Mother was in a shelter for a few months. He was also present when [Child] was born. After Mother moved to Indianapolis when [Child] was 4 months old, Father did not see [Child] until July 4, 2013.
7. Father has had three supervised visits of 3 hours each with [Child] since the filing of the CHINS petition.
8. By his own admission, Father has never paid child support and only sent Mother money when she asked.
9. Father is living in Minnesota with his girlfriend and her child in an apartment. He has lived with his girlfriend for over a year but his name is not on the lease.
10. Father was unable to appear in court today but participated telephonically because he could not miss work today. Father has no real plan for daycare in the event that [Child] was placed with him immediately.
11. Father is presently employed with Creative Care Resources and has worked there for approximately 6 months. Depending on his hours, Father nets approximately $1200 every two weeks.
***
16. MCDCS has limited information regarding Father. Background checks have not been completed on Father or his girlfriend, and a home study has not been completed.
17. Transition of [Child] to Father's care will require a gradual transition so as not to further traumatize a very young child that has suffered a horrific loss only two months ago. If Father is approved through the ICPC process, the transition needs to be gradual so that Father and [Child] can establish a bond and so that any services[,] whether it be therapy for [Child] or services for Father[,] can be completed.
***
19. . . . [Child] has suffered the traumatic loss of Mother. Father, at the time of Mother's death, had not seen [Child] in over a year. Clearly, given her age, he had no relationship with her. [Child] is bonded to her godmother and bonded to her maternal grandmother and to uproot her suddenly and completely would cause serious emotional harm to her. Absent the results of the ICPC or background checks and a home study, [Child's] safety with Father cannot be determined. To suddenly send [Child], a child whose Mother has been murdered by her sibling's father just two months ago, to Minnesota with a man that may be her father but who has not participated in her life would be another traumatic event in her young life that could only cause her greater harm. [Child] would be separated from her godmother, her grandmother and her sibling, the only remaining constants in her life. Any transition to Father[] needs to be gradual to ensure that Father has established a bond with [Child].

Appellant's App. p. 62-64. Father now appeals.

Discussion and Decision

I. Application of ICPC to a Parent

[¶8] First, we must consider Father's argument that the ICPC does not apply to placement of a child with her biological parent. This is an issue of statutory interpretation, to which we apply a de novo standard of review. ...


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