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).
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
ATTORNEY FOR APPELLEE CHILD ADVOCATES, INC. DeDe K. Connor
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.
and Procedural History
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. 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.
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.
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.
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."
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
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.
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 and that DCS would like to have an
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
A fact-finding hearing began on July 27, 2017, and it
continued for two subsequent evidentiary hearings, on October
11 and November 30, 2017.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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
There was testimony outlining the multiple placements that
A.R. has been in throughout the proceedings,  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.
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.
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. 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.