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In re Ale.P.

Court of Appeals of Indiana

July 28, 2017

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,

         Appeal from the Miami Circuit Court The Honorable Timothy P. Spahr, Judge Trial Court Cause Nos. 52C01-1301-JC-3 52C01-1301-JC-4, 52C01-1301-JC-5

          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 Indianapolis, Indiana

          Brown, Judge.

         [¶1] 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.

         We affirm.

         Facts and Procedural History

         [¶2] 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.

         [¶3] 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.

         [¶4] 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.

         [¶5] 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.

         [¶6] 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.

         [¶7] 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.

         [¶8] 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.

         [¶9] 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 major factor.

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.

         [¶10] 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.

         [¶11] 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 responded:

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 ...

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