In the Matter of: Ale.P., Ala.P., and J.P., Children Alleged to be in Need of Services,
The Indiana Department of Child Services, Appellee-Respondent. C.R. and A.R., Appellants-Petitioners,
from the Miami Circuit Court The Honorable Timothy P. Spahr,
Judge Trial Court Cause Nos. 52C01-1301-JC-3 52C01-1301-JC-4,
ATTORNEYS FOR APPELLANTS Randy Head Tribbett Law Office
Logansport, Indiana Jeffrey D. Stanton Logansport, Indiana
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana David E. Corey Deputy Attorney General
C.R. ("Foster Father") and A.R. ("Foster
Mother" and together with Foster Father, "Foster
Parents") appeal the juvenile court's order denying
their motion for the return of Ale.P., Ala.P., and J.P.
(collectively, the "Children"). Foster Parents
raise two issues which we revise and restate as:
I. Whether they were deprived of due process; and
II. Whether the court erred in denying their motion for
return of the Children.
and Procedural History
On February 6, 2013, the biological parents of the Children
admitted that the Children were in need of services, and on
March 28, 2013, the Department of Child Services
("DCS") was awarded wardship. The Children were
placed in a foster home until July 2013 and then with their
paternal grandparents until July 2015 when they were placed
with Foster Parents.
On August 5, 2016, the Children were removed from Foster
Parents' home and placed in a "Respite Home"
before being placed in a new foster home on August 12, 2016.
Appellee's Appendix Volume II at 114. Meanwhile, on
August 8, Angela Isley, a DCS Family Case Manager Supervisor,
several DCS employees, and Foster Parents, were present at a
meeting regarding the August 5, 2016 removal.
On August 17, 2016, Foster Parents filed a Motion for Return
of Children, Petition for Guardianship, and for Custody. On
August 22, 2016, the court held a hearing and at the
beginning stated that it noticed there had not been any
formal petition to intervene, referencing Ind. Code §
31-34-21-4.5. DCS's counsel stated that she reviewed the
statute and it appeared that long term foster parents do have
the right to intervene in a CHINS case. Foster Parents'
counsel indicated that he was making a formal motion to
intervene. DCS's counsel stated: "No objection, I
guess for the purpose of today's hearing, I guess from a
DCS standpoint they're no longer the foster parents from,
our standpoint, umm but for today's motion I think
it's, necessary for them to be here." Transcript
Volume II at 5. The court granted the motion to intervene.
After some discussion, Foster Parents' counsel called the
Children's grandmother as witness. She testified that she
lived with them for over two years and observed J.P. touch
his private area one time.
The Children's paternal grandfather testified that he
noticed J.P. would always play with himself by touching his
penis with his hands. He testified that Ale.P. would
masturbate and that he saw her do so "a couple of times,
but she was really sneaky." Id. at 13.
Lynn Hausner testified that she worked at Maconaquah
Elementary, had Ale.P. "last year and this year, "
knew Ala.P. from being in the hallway, and met J.P. in
passing. Id. at 16. She testified that Ala.P. and
Ale.P. were incredibly upset upon learning that they were
removed from the Foster Parents and that they expressed to
her a desire every day to return to the Foster Parents. When
asked what type of parental figures the Foster Parents had
been, she answered that they were involved and
"completely there for them." Id. at 17.
April Arrowood, a foster care specialist employed by DCS,
testified that Foster Mother requested home based therapy
from her on several occasions. She testified that DCS
represented to the Foster Parents that they would obtain
those services, but those services were not provided to her
knowledge. On cross-examination, she stated she was not aware
of the full extent of services that were in place while the
Children were in the Foster Parents' home, and on
recross-examination, that she had never spoken to the
Children's therapist or any teachers.
When asked about the largest single factor in the decision to
remove the Children from the Foster Parents, Isley, a DCS
Family Case Manager Supervisor, answered:
The, and let me clarify if I can that on the day that the
children were removed I was not umm part of that decision,
the day on the 5th. Umm but I was made aware of
was that, during umm, the conversation that Detective Jumper
and assessment worker Mooney had with the girls at the school
that, that is when they came forward with the information
that [Foster Mother] had just hounded them so much, and kept
questioning, did your parents do this to you, did your
parents do this to you, that they finally just to get out of
the room and not talk about it anymore, yes. [Foster Mother
has] told us to say this. In regards to that their parents
are the ones that sexual [sic] molested them. That was the
Id. at 41. On cross-examination, she testified that
the Children were to receive individual therapy every other
week but they had missed appointments, and she did not
believe the Foster Parents' home was the best place for
the Children. When asked about safety concerns, she answered:
It appears to me that for whatever reason, there is almost an
obsession, by [Foster Mother] that these children have been
sexually molested and that the parents did it. And it's
now been presented to the children, that possibly the last
memory or the, what's being told to them is that their
parents did something awful to them when we have no proof to
back that. Umm, it's, it's concerning that the story
. . . as told by one of the children just got more elaborate
the more questions that started to be asked. Umm, whether
that was on the child's part because they do say the
children lie and manipulate all the time, umm which is also
concerning because if they lie and manipulate all the time
then how do we believe, why are we believing the sexual
stuff, but everything else they say is a lie. So there's
just lots of umm, there's just lots of questions that
don't make sense why, why do these children have to be
sexually molested to masturbate.
Id. at 49-50. She also testified that she emailed
the teachers in part because Foster Mother kept raising a
concern that the Children masturbated in school and that the
teachers did not state they witnessed any such behavior.
The court appointed special advocate, Alayne Cook ("CASA
Cook") testified that the Children made enormous
progress with the grandparents and the Foster Parents. She
stated her belief that the Children feel stable and secure in
the Foster Parents' household and that adoption by them
is a very good idea. She testified that she had not seen
anything sexual at any time she had been with the Children.
On cross-examination, she testified that she spoke with the
Children's therapist and teachers and that they did not
notice anything of concern with respect to sexualized
behaviors in the classroom.
On September 2, 2016, the court continued with the hearing.
On cross-examination, Brenda Kay McGinnis, the local office
director in Miami County and an employee of DCS, was asked if
she believed that the Foster Parents may have emotionally
harmed the Children and answered: "Possibly, yes."
Id. at 110. When asked to explain the reasons why
the Children were removed from the Foster Parents, she
The reason the children were removed from the [Foster
Parents] was because of the concerns that we had regarding
the investigations. And the fact that it appeared that
[Foster Mother], while well intentioned seemed to be
questioning the children and, possibly planting in their
heads information about sexual abuse that didn't occur.
Consequently what's, what the concern was is she planting
information in them (inaudible) her ...