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In re A.R.

Court of Appeals of Indiana

August 31, 2018

In the Matter of A.R. and H.R., Children in Need of Services,
Indiana Department of Child Services, Appellee-Petitioner, J.R., Father, Appellant-Respondent, and Child Advocates, Inc., Co-Appellee (Guardian ad Litem).

          Appeal from the Marion Superior Court The Honorable Marilyn A. Moores, Judge The Honorable Rosanne Ang, Magistrate Trial Court Cause No. 49D09-1706-JC-1915, 49D09-1706-JC-1916

          ATTORNEYS FOR APPELLANT Victoria Bailey Marion County Public Defender Agency Appellate Division Indianapolis, Indiana Steven J. Halbert Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE INDIANA DEPARTMENT OF CHILD SERVICES Curtis T. Hill, Jr. Attorney General of Indiana Robert J. Henke Katherine A. Cornelius Deputy Attorneys General Indianapolis, Indiana

          ATTORNEY FOR APPELLEE CHILD ADVOCATES, INC. DeDe K. Connor Indianapolis, Indiana

          KIRSCH, JUDGE.

         [¶1] J.R. ("Father") appeals the juvenile court's order adjudicating two of his children, A.R. and H.R., to be children in need of services ("CHINS"). Father raises three issues for our review, which we consolidate and restate as follows:

I. Whether the juvenile court had jurisdiction to enter a CHINS adjudication and disposition;
II. Whether the Indiana Department of Child Services ("DCS") presented sufficient evidence that A.R. and H.R. were CHINS.

         [¶2] We reverse.

         Facts and Procedural History

         [¶3] M.R. ("Mother") and Father are the parents of five children, including A.R., born in Henderson County, North Carolina in April 2005, and H.R., born in Lafayette, Indiana in March 2012.[1] In 2014, parents were living together and with the children, in North Carolina. In September 2014, the North Carolina Department of Social Services ("NCDSS") removed the children from the home and filed a juvenile petition, similar to what would be a CHINS petition in Indiana, as to the five children, alleging unstable housing, substance abuse by parents, and domestic violence between parents. In March 2015, the children were adjudicated as abused and neglected juveniles. Pet'r's Exs. 1, 2, 3, 4. From September 2014 until sometime in 2016, the children were in the care and control of NCDSS.

         [¶4] Following a May 2016 review hearing, the North Carolina juvenile court issued a Subsequent Permanency Planning and Review Order on July 15, 2016 ("July Review Order"). The July Review Order reflected testimony of social worker William Winters ("SW Winters") that Mother completed her case plan and that Mother wanted to move to Indiana. SW Winters also testified that Father had multiple failed drug screens, but paid child support, visited regularly, was employed, and was bonded with the children. Id. The North Carolina juvenile court awarded custody of the five children to Mother, granted Father supervised visitation, to be supervised by specified maternal and paternal family members, and closed the CHINS proceedings. Pet'r's Exs. 1, 2. The July Review Order also stated that North Carolina "retains jurisdiction in this matter until terminated by order of the Court" or until the children reach the age of majority. Id.

         [¶5] At or around the end of the school year in 2016, Mother left North Carolina with all five children. However, after a period of time, she and the children returned to North Carolina, where they lived in a separate residence from Father. At some point, three of the children moved in with Father. At the end of April 2017, Mother returned to Indiana with A.R. and H.R., the two children who were not living with Father and are the subject of the current CHINS case.

         [¶6] In May 2017, NCDSS received reports of an "injurious environment" at Father's home and, in response, it filed on June 23, 2017 a Motion to Re-Open and to Review the previously closed CHINS matter. NCDSS conducted an investigation of Father's residence and his girlfriend, with whom he lives. Social worker Vanessa Phillips ("Phillips") found no evidence of abuse or neglect, Father took and passed all drug screens, and had started attending a substance abuse group. Pet'r's Ex. 3. The NCDSS asked the North Carolina juvenile court to approve the three children living with Father and remove the previously-ordered supervised visitation. Id. The Motion to Re-Open also reflected that NCDSS made a report to DCS, "who initiated [its] own investigation." Id.

         [¶7] Here in Indiana, Mother was uncooperative with DCS's investigation throughout May. DCS was investigating reports of housing instability and that at least some of the children missed school because Mother was out at bars and did not return home, Mother allowed A.R.'s fourteen-year-old boyfriend to sleep over and have sex with A.R., Mother had sex in front of the children in the same room, Mother used drugs in front of the children, and Mother left children with inappropriate caregivers, one of whom overdosed. Pet'r's Ex. 3; Appellant's App. Vol. II at 48. On June 14, 2017, police were dispatched to Mother's home on reports of domestic violence, and she again was uncooperative and untruthful with officers. A.R. and H.R. were removed from Mother's home, and on June 15, 2017, DCS filed a CHINS petition as to A.R. and H.R., alleging that Mother failed to provide them with a safe, stable, and appropriate living environment free from domestic violence and substance abuse and that the children were not attending school. Appellant's App. Vol. II at 45. As to Father, the Petition alleged, "[Father] . . . has not successfully demonstrated an ability and willingness to appropriately parent the children, and/or they are unable to ensure the children's safety and well being while in the care and custody of [Mother] as he is in North Carolina." Id.

         [¶8] The intake report reflected that a DCS family case manager ("FCM") had contacted Father, who told her that he would like A.R. and H.R. to be placed with him. Id. at 50. Father was advised of the upcoming Indiana court date and said he would attempt to be present. Another FCM from Indiana had spoken with the North Carolina social worker Phillips, who stated that there were "no immediate concerns" with Father, that he was "actively engaged" in services, he completed a substance abuse assessment, but "was not able to produce a urine sample" for his most recent screen, but that NCDSS "plans to follow up with [Father] to complete a hair follicle test and urine drug screen." Id. Phillips said that if there were no concerns with those drug tests results, North Carolina "does not have any immediate concerns with the children returning to [Father's] care so long as he continues to abide by the court order which requires his contact be supervised." Id. at 51. The juvenile court continued the initial hearing, placed A.R. and H.R. in foster care, and appointed court-appointed special advocate Greg Huff ("CASA Huff"). The juvenile court also appointed a guardian ad litem ("GAL"). Id. at 61-63.

         [¶9] Father was present at the June 29, 2017 continued initial hearing, and he was present by telephone at the July 6, 2017 pretrial hearing. At the pretrial, DCS reported that A.R. and H.R. "would like to live with" Father and that, according to NCDSS (1) Father and his girlfriend are appropriate with the children, (2) Father was participating in services, and (3) the North Carolina CHINS case "will be closing soon." Id. at 84-90. Father was also present at the next pretrial, on July 20, 2017. DCS objected to Father having temporary trial visitation ("TTV") with A.R. and H.R., noting that there was still an open CHINS case in North Carolina[2] and that DCS would like to have an ICPC[3] to be completed. The GAL requested that any ICPC be completed soon so that A.R. and H.R. "can be placed on TTV with Father as soon as possible." Id. at 92. The juvenile court denied Father's request for TTV at that time.

         [¶10] A fact-finding hearing began on July 27, 2017, and it continued for two subsequent evidentiary hearings, on October 11 and November 30, 2017.[4]Father was present for all three hearings. At the July 2017 hearing, Father's counsel requested placement of A.R. and H.R. with Father, stating that North Carolina had found Father's residence to be appropriate for the other three siblings that were living with Father. Counsel for DCS objected to immediate placement with Father, stating that at a mediation that had taken place a week prior, Father had tested positive for oxycodone, and that "I'm not sure if North Carolina knows that or not. . . . I'm kind of questioning whether they have all the information they need to make [a] determination as to whether father's home is safe or not." Tr. Vol. II at 10. Father's counsel responded that Father took a screen "today," and it was "clean" and that Father and his counsel did not receive a copy of a "dirty screen" and requested a copy. Id. at 10-11. The juvenile court denied Father's request for immediate placement on TTV. The juvenile court stated, "I'm still worried a little bit about [F]ather. I'm glad the kids want to see [him], so that's a step in the right direction[, ]" but "[u]ntil I'm confident that there's an appropriate place I'm not willing to order any changes[.]" Id. at 11. Father later filed a motion requesting that the North Carolina FCM, Rebecca Johnson ("NC FCM Johnson"), be permitted to testify telephonically, which request the juvenile court granted.

         [¶11] Between the July 2017 hearing October 2017 fact-finding hearing, the North Carolina juvenile court issued a Review Order on September 28, 2017 ("September 2017 Review Order"). In it, the court recognized that Father had attended four Strong Fathers classes, in a twenty-week program, with Father reporting that he missed some weeks due to traveling to Indiana for court hearings, and the court expected Father "to attend the remaining weeks without further absences." Pet'r's Ex. 4. It also recognized that Father had completed a comprehensive clinical assessment, which recommended participation in a substance abuse group and for Father to attend Narcotics Anonymous. The assigned social worker would be working with Father and his girlfriend to arrange in-home therapeutic services for the three children living with them. The GAL said that the three children living with Father were doing well, felt safe, wanted to stay there, and wanted all five siblings back together. Id. The NCDSS required that, if Mother were to return to North Carolina, her visits with the children be supervised, she report to NCDSS, and she complete an assessment and recommended treatment. The September 2017 Review Order concluded: (1) the three children living with Father "remain in the custody of [Mother] and in the home of [Father]"; (2) Father's visitation with the three children no longer be supervised; (3) Father complete the programs and services and "remain drug free," (4) Father work with NCDSS to enroll the three children living with him in therapeutic services, (5) Mother comply with the Indiana juvenile court's order and, if she returns to North Carolina, she complete an assessment and services, and (6) a copy of the September 2017 Review Order be sent to the Indiana juvenile court "as soon as executed." Id.

         [¶12] Thereafter, at the October 11, 2017 fact-finding hearing in Indiana, Father and his girlfriend, Bethany Byars ("Byars"), with whom Father lived, were present. At the beginning of the hearing, the juvenile court stated that it had just been advised that Father had "open warrants" from "other courts," and Father was taken into custody at that time. Tr. Vol. II at 14; Appellant's App. Vol. II at 125-27. Counsel for Father had not been aware of the existence of the open warrants. Before the start of evidence, Mother admitted that A.R. and H.R. were CHINS, stating, "[Mother] would benefit from services in order to maintain sobriety. Therefore, coercive intervention of the Court is necessary." Id. at 16-17. Thereafter, the juvenile court proceeded with fact-finding as to Father, and DCS first called Lauren Turley ("Turley"), an assessment worker with DCS.

         [¶13] Turley stated that, in May 2017, DCS filed a CHINS petition as to A.R. And H.R., in response to allegations of lack of supervision, not attending school, concerns with Mother abusing substances, and A.R. having an inappropriate physical relationship with someone older than her. Turley had trouble locating Mother and when she did locate her, Mother would not let Turley speak to A.R. and H.R., requiring DCS to file a motion to compel. In the course of her investigation, Turley spoke to NCDSS after learning from Mother that there was an open CHINS case in North Carolina. However, Turley testified that she never looked at the petition and did not have information as to why the case was opened. After A.R. and H.R. were removed from Mother's care, Turley spoke with Father, to advise him about "the situation" that was going on with A.R. and H.R. Tr. Vol. II at 23. Father explained to Turley that he was in North Carolina and, as to whether he was satisfied with A.R. and H.R.'s being in Mother's care, he told Turley that "[h]e wanted the children in his care." Id. at 25. In their conversation, Father told Turley that he was not sure if he would have transportation to Indiana because he relied on his mother for transportation and, he shared, that he relied on her "for supervising his contact with his children." Id. at 23. Turley did not recall being told or learning why visitation was supervised. Turley said the CHINS filed against Mother was later substantiated, and A.R. and H.R. were placed in foster care, instead of with Father, because "[h]e was not able to come to Indianapolis so that we could get more information and determine his stability and safety." Id. at 26. She further explained, "With the history that I was aware of for Indianapolis there were concerns for substance use and domestic violence in the past, but I wasn't able to speak with [Father] and meet with him to fully access [sic] those things." Id. at 28.

         [¶14] DCS next called to testify Crystal Heard ("Heard"), who was a home-based case manager and a visitation facilitator in Indiana. DCS referred the family to her in June 2017. As to Father, she observed three or four visits with A.R. and H.R. while he was in Indianapolis. She said that "[t]he girls are very excited to see their father" and on the way to the visits say that "they can't wait to see him." Id. at 32-33. The girls stated to Heard that they "can't wait for this to be over" "because they want to go back with their dad[.]" Id. at 33. Heard described that, in her observations, Father seemed like "a concerned father," he appropriately addressed behaviors, and had healthy conversations with them. Id. at 36. When asked if Father ever said anything or acted in a way to give her worry about his judgment or ability to parent, Heard said "No." Id. She likewise said that she had no safety concerns regarding his ability to "tak[e] care of the kids." Id. Heard acknowledged that Father drove nine hours each time to get to Indianapolis for court hearings and visitations. Heard testified that, in her opinion, placing A.R. and H.R. with Father was in their best interests. Id. at 38.

         [¶15] Heard did notice that Father was nervous and shaky during one or more visitations, which she indicated gave her some concern. Id. at 33-34. Upon DCS questioning, Heard acknowledged that she had never been to Father's North Carolina home and could not testify if it was appropriate, and she was not fully aware of the services in which Father was participating in North Carolina, but recalled that he was in a father's program and that drug screens were included in a North Carolina order.

         [¶16] Korinne Fox-Sibanda ("Fox-Sibanda"), a home-based therapist and visitation supervisor in Indiana, testified that her only contact was with Mother and A.R. Fox-Sibanda testified that, even if A.R. and H.R. were placed with Father, that she would recommend that A.R. have continued therapy due to traumas. Father's counsel, on cross-examination, asked Fox-Sibanda, "Are you aware that [NCDSS] arranged individual therapy for [A.R.] down there?" and she replied that she was not aware but said it would be beneficial, adding that family therapy with Father also would be beneficial. Id. at 43-44.

         [¶17] Next to testify at the October 11 hearing was FCM Michelle Johnson ("FCM Johnson"), who began involvement with the family in June 2017. She said that she learned from Father that "they do have an open case in North Carolina" and that his relationship with Mother is "not good" and that he had filed for dissolution. Id. at 48; 53. When asked if she knew what services Father was participating in, FCM Johnson said, "I believe he mentioned something about a Father Engagement program and I believe something related to substance abuse." Id. DCS counsel inquired further about drug use, either on his own or with Mother, and FCM Johnson said, "During some of the telephone conversations and in-person contact that I had with [Father] . . . he indicated that they did do drugs here in Indiana with [Mother] and their friends, but he didn't identify what substance they were using." Id. at 51. FCM Johnson testified that referrals had been made as to Mother for home-based therapy, home-based case management, supervised visits, therapeutic visits, a substance abuse evaluation, and random screens, but, as to Father, only random screens when he was in town had been recommended. FCM Johnson did not recall seeing or receiving any documents concerning custody of A.R. and H.R. Id. at 53.

         [¶18] FMC Johnson recalled that she had spoken to the case manager in North Carolina four to six times, and she was informed about services in which Father had been participating. FCM Johnson learned that, initially, Father had visitations supervised by his mother, "but ended up with the children in his care and his mother is no longer a party as to supervising the visits." Id. at 55-56. As to services, she was told that he was in a father's program and had random drug screens, noting that "recently I believe that they indicated they were trying to get him to do a screen but he didn't screen when they asked him to, but other than that he's engaged in the services." Id. at 60. Father told FCM Johnson that "he was screening until his job took him out of county or something of that nature and it was kind of difficult for him to screen." Id. at 64. FCM Johnson stated that, if Father were ordered to participate in screens, that she would "want to see that those screens are happening." Id. at 63. FCM Johnson's last conversation with the FCM in North Carolina was that Father was "actively participating" in "[a]ll the services." Id. at 66. Father told FCM Johnson that he is willing to participate in any substance abuse treatment. Id. at 64.

         [¶19] The information that FCM Johnson learned from the North Carolina FCM about Father's "housing environment" is that it was "appropriate" and that Father was "working and he can meet the needs of the children." Id. at 56. During FCM Johnson's testimony, certified copies of court documents from North Carolina were admitted without objection. Id. at 54 (admitting Pet'r's Exs. 1-4). Counsel for Father asked FCM Johnson, "Do you have any safety concerns today if [A.R. and H.R.] are placed with father in North Carolina?" and she responded, "No. Not based off the information from North Carolina, no." Id. at 56. However, FCM Johnson stated that seeing Father be arrested at the start of the day's hearing did give her some concern about the children's safety, explaining "If he's going to be an absent parent . . . obviously it's going to be a safety concern." Id. at 62.

         [¶20] There was testimony outlining the multiple placements that A.R. has been in throughout the proceedings, [5] and counsel asked, "[Y]ou have no safety concerns placing her with [F]ather?" and she replied, "No." Id. at 58; see also id. at 60 (stating that she had no safety concerns for A.R. and H.R. in Father's care as long as Mother was not living with Father). She acknowledged that if A.R. were returned to North Carolina, that she would return to a prior school that she attended and that it would be a familiar environment for her. Id. FCM Johnson had briefly observed parenting time between Father and A.R. and H.R., and her impression was "[t]hat the girls love their father and they wanted to be with him[, ]" noting that in her monthly one-on-one visits with the girls "that's usually the conversation when I see them[, ] you know that's what they know, that's where they want to be and they just say it all the time that they want to be with their father." Id. at 61-62.

         [¶21] Because Father had been arrested at the start of the October 11 hearing, the juvenile court offered to Father's counsel to schedule an additional hearing so that Father could testify, and the hearing was reconvened on November 30, 2017. On November 15, 2017, DCS filed a Request for Judges to Communicate pursuant to the Uniform Child Custody and Jurisdiction Act ("UCCJA"), stating that temporary emergency jurisdiction is provided pursuant to Section 204 of the UCCJA and that under that same section the judges "must" communicate. Appellant's App. Vol. II at 131-34.

         [¶22] At the start of the November 30, 2017 fact-finding hearing, the juvenile court stated that it had contacted the North Carolina judge to schedule a conference under UCCJA, but that no conference had yet been scheduled.[6] Father's counsel called Father to testify. Father stated that this was his seventh time coming to Indiana on the matter, stating that his purpose was "trying to get my two children back." Id. at 85, 88. Father drove to Indiana on each occasion. Father testified that he was still married to Mother, but had filed for dissolution on three occasions and hoped to "be completely done with the situation." Id. at 87. Father was currently living in North Carolina with Byars, his three children, and one of hers. Father said that North Carolina filed the Motion to Re-Open the closed CHINS case because, initially, he had supervised visitation but when the three children came back to live with him, North Carolina needed to "go back and remove the sanctions." Id. at 89. He said that NCDSS had been to his three-bedroom residence. Father stated that, as part of court-ordered services, Father attended drug treatment class twice a week, but that he had just recently started it. Id. at 89-90. He had also completed a Strong Fathers class in September 2017, which he described as a domestic violence class that taught skills with how to deal with children on different age levels. Father testified that he and Byars were both employed, and they were current on rent. Father stated that a family therapist "comes out . . . two to three times a week." Id. at 92. ...

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