In the Matter of: Ale.P., Ala.P., and J.P., Children Alleged to be in Need of Services, C.R. and A.R. v. The Indiana Department of Child Services , 2017 Ind. App. LEXIS 313 ( 2017 )

FILED
Jul 28 2017, 9:28 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Randy Head Curtis T. Hill, Jr.
Tribbett Law Office Attorney General of Indiana
Logansport, Indiana
David E. Corey
Jeffrey D. Stanton Deputy Attorney General
Logansport, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: Ale.P., Ala.P., July 28, 2017
and J.P., Children Alleged to be Court of Appeals Case No.
in Need of Services, 52A02-1612-JC-2864
C.R. and A.R., Appeal from the Miami Circuit
Court
Appellants-Petitioners,
The Honorable Timothy P. Spahr,
v. Judge
Trial Court Cause Nos.
The Indiana Department of 52C01-1301-JC-3
52C01-1301-JC-4
Child Services,
52C01-1301-JC-5
Appellee-Respondent.
Brown, Judge.
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[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
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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
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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.
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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
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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
questioning of them, that makes the children believe they’ve been
sexually abused when they’ve not been.
Id.[12] Foster Mother testified that Ale.P. “squeezed the guts out of a frog” on the first
day she was placed with her, which she found “very alarming” and that J.P.
was “playing with himself” within two days and “would hump the sofa.” Id. at
121. She also described the sexual behavior of Ala.P. and Ale.P. and said that
Ale.P. told her that her mother taught her. She stated that she asked DCS for
additional services with respect to this behavior every day that she was willing
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to undergo an exam for reunification and wanted to adopt the Children and
that she did not instruct any of the Children to say they had been sexually
abused.
[13] On September 27, 2016, the hearing continued. Foster Father testified that he
witnessed Ale.P. appear to masturbate in a pool and J.P. appear to masturbate
in a bed. After Foster Father’s testimony, counsel for Foster Parents rested, and
DCS presented evidence.
[14] Lyndi Cook, the Children’s case worker, testified that the paternal grandparents
did not talk to her about the Children’s sexualized behavior during the time the
Children were placed with them. On cross-examination, she testified that
Foster Mother expressed concerns about the Children’s sexual behavior. She
also testified that she felt the therapy that was being given was enough to
address Foster Mother’s concerns. On redirect examination, she stated that no
teacher ever came to her about sexualized behavior from the Children, and she
recommended that the Children not remain with Foster Parents.
[15] Isley testified that Ale.P. did not report anything to her therapist, Steve Carney,
regarding touching herself, that Ala.P. did not disclose any type of sex abuse to
Carney, and that Ale.P. disclosed sex abuse only after returning from vacation
with Foster Mother. She stated that Carney would not have considered
masturbation a misbehavior, and that Carney said that the Children should see
someone specialized and “what he was referring was to a CAC, CAC interview
which is where someone is trained to discuss with children the good touch bad
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touch in an effort umm to see if there’s a disclosure of sexual abuse.” Id. at 215.
Two interviews were conducted with the Children and none of the Children
disclosed any sex abuse in the first set of interviews, during which the Children
were very relaxed during the first set of interviews. She testified that Ale.P. was
very anxious when she entered the room for the second interview and asked
that Foster Mother sit in the room with her before she talked about anything,
which she was told could not happen. Isley testified that she thought “it almost
seemed like something that had been rehearsed . . . .” Id. at 218. During
Ala.P.’s second interview, she “looked scared to death when she walked into
the room.” Id. at 218. She testified that “the only thing that [J.P.] talked about
in the second set of interviews was that . . . after that her [sic] had heard several
times . . . his mother would be referred to as [A.C.], umm that he heard his
mother talking to his sisters . . . about their interviews.” Id. at 219. Isley further
testified that, during interviews of one of the Children at the CAC, Foster
Mother was caught in the hallway trying to listen outside the interview door.
[16] Isley also stated she had seen the Children since they had been moved to their
current foster home, that they had been playing, they had therapy sessions since
moving to the new foster home, that Ale.P. was upset “because she was told
that she was only in respite and she wanted to know why she was still there,”
and that the move “didn’t seem to affect” Ala.P. Id. at 219-220. She also
testified that she had conversations with the current foster parents about
whether the Children exhibited any sexualized behavior and that they had not
reported any, that the new foster parents reported that Ale.P. and Ala.P. were
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becoming more affectionate every day after initially being standoffish, that J.P.
told the new foster mother that he loved her, and that the Children were in a
pre-adoptive home.
[17] Indiana State Police Detective Michelle Jumper testified that her investigation
started following the second CAC interview, that she interviewed Ale.P. and
Ala.P., and that details changed including where it happened and items that
were used during the abuse. She testified that J.P. stated that she “needed to
talk to [Foster Mother] she was the one that seen most of what was going on.”
Transcript Volume III at 7. She stated that she interviewed Foster Mother and
that her “story did change,” that Foster Mother “wanted to believe so badly
that these kids had been molested,” and that “she was obsessed with this whole
situation.” Id. at 9, 12. She also interviewed the biological parents and they
were both cleared of being suspects. Detective Jumper also described an
incident at a parade in which Foster Mother ran out of the crowd, pointed at
the biological mother, and yelled that she was a child molester. Detective
Jumper further testified that, during a subsequent conversation with Ale.P.,
Ale.P. said that “she had been asked over and over and over and over by
[Foster Mother] that she had been molested to the point where she said she just
said fine, okay my parents molested me.” Id. at 12. She stated: “I mean Ale.P.
said it in her first interview with me that they talked about it every day it was
something that she kept asking and asking and asking and that’s what [Ale.P.]
finally said at the school too. That she finally just threw her hands up and said
okay my, my parents molested me.” Id. at 13. On cross-examination,
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Detective Jumper testified that Ale.P. stated that she lies a lot to protect herself,
that she had “been having sex with herself,” and that the Foster Parents had
caught her doing that. Id. at 17.
[18] DCS then rested, the CASA rested, and Foster Parents’ counsel called CASA
Cook in rebuttal, who testified that she still thought the best place for the
Children was with Foster Parents. She stated that the “conditions of the home
where [the Children] are now are just a shade better that are then [sic] the home
[of the biological parents] that they were removed from. It’s chaotic and if [sic]
I don’t think it’s clean.” Id. She also testified that the conditions of the Foster
Parents’ home were better than the conditions of the home where the Children
were currently placed.
[19] After the presentation of evidence, DCS’s counsel argued that Foster Parents do
not have the same rights as biological parents, that “[i]t is a modification of
disposition at best,” that following the CHINS finding the Children were wards
of the DCS, and that DCS was making decisions it believed are in the best
interests of the Children. Id. at 37. Foster Parents’ counsel stated that “[t]he
best interests of the children should always be the concern of the Court and
should govern the Court’s decision in this case . . . .” Id. at 38. The court took
the matter under advisement and indicated it would conduct in camera
interviews of the Children.
[20] On October 10, 2016, the court denied the Foster Parents’ Motion for Return of
Children, Petition for Guardianship, and for Custody. The order states:
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Evidence is heard and concluded, the Court conducts in camera
interviews with all three children, and the Court takes the matter
under advisement.
And now the Court, being duly advised in the premises, FINDS
and ORDERS as follows:
1. The Court is very concerned by the shifting and typically
uncorroborated accounts of the children’s alleged behavior
that have been provided by Foster Mother in various emails;
during a meeting at the Miami County DCS Office on August
8, 2016, that she herself recorded; and during her testimony in
open court.
2. Moreover, at times, Foster Mother has taken actions that
reflect both: (a) a surprising lack of restraint; and (b) obsessive
and/or compulsive behavior. For example, during the
private, recorded interview of one of the children at the Child
Advocacy Center in Marion, Indiana, in April 2016 she was
discovered to be listening at the door to the interview room.
Then, during Peru’s circus parade in July 2016, she literally
ran four blocks along the parade route and effectively entered
the parade itself in order to chase down the children’s
biological parents, who had passed by earlier while they were
participating in the parade. Foster Mother then loudly (and in
the presence of other people) made accusations that they had
engaged in child molestation.
3. Although it is undisputed that the Foster Parents have and
maintain a nice home, support the children’s education, and
expose the children to new experiences, after considering the
entirety of the evidence that has been presented, the Court
cannot conclude that it is in the children’s best interests to be
returned to the Foster Parents’ care.
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4. The Foster Parents’ Motion for Return of Children, Petition
for Guardianship, and for Custody hereby is DENIED.
5. The Foster Parents previously have been permitted to
intervene without objection from DCS; however, in light of
the Court’s ruling, that intervention is at an end and they no
longer have status as parties to the above-captioned cases,
although the Court is of the opinion that they still have
standing to seek appellate review of this Court’s decision.
6. This Court previously entered an Order on August 22, 2016,
that granted the Foster Parents in-person supervised visits and
telephonic contact with all three children. The Court now
terminates that Order.
Appellants’ Appendix Volume II at 27-28.
[21] On November 9, 2016, Foster Parents filed a motion to correct error alleging
that DCS did not comply with Ind. Code § 31-34-20-5, did not request an
emergency change to the residence of the Children pursuant to Ind. Code § 31-
34-23-3, and did not make written documentation pursuant to Ind. Code § 31-
34-2-6. They asserted they should not bear the burden of showing that their
residence is better for the Children than the residence in which DCS place
them, and that the court ceased their intervention and they “move to intervene
pursuant to IC 31-34-21-4.5 and should be allowed to intervene as interested
parties.” Id. at 31. Foster Parents ask that we find that the evidence
demonstrated it is in the Children’s best interests to live with them and order
DCS to return the Children to their care.
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[22] On November 16, 2016, the court held a permanency hearing. It observed that
Foster Parents had filed a motion to correct errors and that it was not taking
any action on the motion because the Trial Rules allow fifteen days for a
response to be filed. The court scheduled another permanency hearing for
February 15, 2017 in December 2016, denied Foster Parents’ motion to correct
error.
Discussion
I.
[23] The first issue is whether Foster Parents were deprived of due process. They
argue that the trial court forced them to carry the burden of proof and that “[a]t
no time did the Court refer to a burden proof [sic] or cite a legal standard it
would use to determine the outcome of the hearing.” Appellants’ Brief at 17.
They contend they could not be heard at a meaningful time and in a meaningful
manner if they could not know who had to meet what standard and that DCS
should bear the burden because it controlled how much Foster Parents were
allowed to know about the placement.
[24] DCS argues that Foster Parents waived their due process arguments because
they never raised them with the trial court. DCS also argues that the trial court
did not violate Foster Parents’ due process rights. DCS contends that the
Foster Parents’ bore the burden of proof because they were the petitioners. It
asserts that the Foster Parents’ Motion for Return of Children, Petition for
Guardianship, and for Custody uses the same allegations required for a
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guardianship and that, in terms of guardianship cases, the petitioner bears the
burden to prove “by clear and convincing evidence that the best interests of the
child require such a placement” with the guardians. Appellee’s Brief at 22
(quoting In re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002)). DCS
asserts that it had a burden to present evidence to demonstrate that the trial
court should not grant Foster Parents’ motion and that it did. DCS argues that
the Foster Parents were heard in a meaningful time and manner. It also asserts
that the Foster Parents could have sought out what they believed to be pertinent
evidence through discovery, but did not do so.
[25] “Due process requires ‘the opportunity to be heard at a meaningful time and in
a meaningful manner.’” In re K.D., 962 N.E.2d 1249, 1257 (Ind. 2012) (quoting
Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893 (1976)). The Indiana
Supreme Court has previously written that the process due in a termination of
parental rights action turns on balancing three Mathews factors: (1) the private
interests affected by the proceeding; (2) the risk of error created by the State’s
chosen procedure; and (3) the countervailing governmental interest supporting
use of the challenged procedure. Id. (citing In re C.G., 954 N.E.2d 910, 917
(Ind. 2011)). The Court held that these same factors apply to a due process
analysis of a CHINS adjudication. Id.[26] The Foster Parents’ arguments focus on due process in the trial court and not at
the time the Children were removed from their care on August 5, 2016.
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Accordingly, we examine due process in the context of the juvenile court’s
actions.1
[27] Ind. Code § 31-34-21-4.5 is titled “Foster parent’s intervention” and at the time
of the Foster Parents’ intervention provided:
(a) Except as provided in subsection (b) a foster parent, long term
foster parent,[2] or a person who has been a foster parent may
petition the court to request intervention as a party to a
proceeding described in this chapter.
(b) A foster parent who has been:
(1) the subject of a substantiated report of child abuse or
neglect; or
(2) convicted of a felony listed in IC 31-27-4-13;
may not petition the court to intervene under this section.
1
In their reply brief, the Foster Parents cite Ind. Code §§ 31-34-22-1 and 31-34-22-2 and argue that DCS
proposed a change to the residence of the Children without first preparing a modification report and
requesting a formal hearing on the proposed modification. Foster Parents cite these statutes and raise this
argument for the first time in their reply brief. Foster Parents also mention Ind. Code § 31-34-23-3, but cite it
for the first time in their reply brief. The law is well settled that grounds for error may be framed only in an
appellant’s initial brief and are waived if addressed for the first time in the reply brief. See Monroe Guar. Ins.
Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005). While Foster Parents mentioned Ind. Code §§ 31-34-
20-5 and 31-34-2-6 in their motion to correct error, they do not cite these statutes on appeal.
2
Ind. Code § 31-34-21-4.6 defines a “long term foster parent” as “a foster parent who has provided care and
supervision for a child for at least: (1) the twelve (12) most recent months; or (2) fifteen (15) months of the
most recent twenty-two (22) months.”
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(c) A court may grant a petition filed under this section if the
court determines that intervention of the petitioner is in the best
interests of the child.
(Subsequently amended by Pub. L. No. 145-2006, § 317 (eff. July 1, 2017)). We
also observe that Ind. Code § 31-35-2-6.5 is titled “Notice of Hearing” and
provides that “[a]t least ten (10) days before a hearing on a petition or motion
under this chapter, the department shall provide notice of the hearing to the
child’s foster parent . . . .”
[28] The trial court granted Foster Parents’ motion to intervene and they presented
evidence and cross-examined DCS’s witnesses over the course of a three day
hearing. To the extent Foster Parents suggest that the trial court improperly
had them present evidence first, we observe that at the beginning of the August
22, 2016 hearing, the court stated: “Okay uh this is on your motion and petition
[Foster Parents’ counsel] so who will be your first witness?” Transcript Volume
II at 8. Foster Parents’ counsel stated the name of the Children’s grandmother
and proceeded to question her, and did not object at the beginning of that
hearing or at the other hearings. With respect to Foster Parents’ argument that
the juvenile court did not refer to a burden of proof or cite a legal standard it
would use to determine the outcome of the hearing, they do not cite to
authority requiring a juvenile court to do so.
[29] To the extent Foster Parents assert that they could not present certain evidence
because DCS controlled how much they were allowed to know about the
placement of the Children in the new foster home, we note that CASA Cook
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testified in the Foster Parents’ favor with respect to a comparison of the two
homes. Moreover, Foster Parents do not assert that the juvenile court
precluded them from obtaining discovery.
[30] After the presentation of evidence and following the argument of DCS’s
counsel regarding the procedural posture of the case, Foster Parents’ counsel
stated that “[t]he best interests of the children should always be the concern of
the Court and should govern the Court’s decision in this case . . . .” Transcript
Volume III at 38. We have previously held that “the paramount interest in . . .
CHINS cases is the best interests of the child.” In re Adoption of N.W.R., 971
N.E.2d 110, 115 (Ind. Ct. App. 2012). In its October 10, 2016 order denying
the Foster Parents’ Motion for Return of Children, Petition for Guardianship,
and for Custody, the court referred to the best interests of the Children.
Specifically, the court stated:
Although it is undisputed that Foster Parents have and maintain
a nice home, support the children’s education, and expose the
children to new experiences, after considering the entirety of the
evidence that has been presented, the Court cannot conclude that
it is in the children’s best interests to be returned to the Foster
Parents’ care.
Appellants’ Appendix Volume II at 28. Given that the trial court used the test
proposed by Foster Parents’ counsel, we cannot say that reversal is warranted
on this basis and cannot say that the Foster Parents were deprived of due
process. See Browder v. Harmeyer, 453 N.E.2d 301, 309 (Ind. Ct. App. 1983)
(addressing the rights of a paternal grandmother, holding that “only parents
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need be afforded the increased due process rights inhering in a required finding
of unfitness” prior to adoption, observing that paternal grandmother was
provided notice of the maternal grandparents’ petition for adoption and an
evidentiary hearing, and concluding that “this is sufficient due process even if
[paternal grandmother] does have a fundamental right to family integrity”),
reh’g denied; see also Smith v. Org. of Foster Families For Equal. & Reform, 431 U.S.
816, 856, 97 S. Ct. 2094, 2115 (1977) (holding that the procedures provided by
New York State and New York City were adequate to protect whatever liberty
interest individual foster parents may have).
II.
[31] The next issue is whether the juvenile court erred in denying the Foster Parents’
Motion for Return of Children, Petition for Guardianship, and for Custody.
Foster Parents argue that, while they are not the biological parents of the
Children, cases involving the termination of the rights of biological parents are
instructive. They also cite to Ind. Code § 31-35-2-4(b)(2), which governs the
termination of parental rights, but state that they do not argue that those
standards bind this Court. They assert that there is no proof that they impaired
the Children’s physical, mental, or social development. They state that Foster
Mother was not the only witness who testified regarding the Children’s sexual
behavior and point to the testimony of Foster Father and the Children’s
grandfather. They argue that Foster Mother’s approach of the door during a
CAC interview did not pose harm to the Children. With respect to the incident
at the parade, they allege that the crucial fact was that Foster Mother left the
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Children beside the parade route when she traveled a few blocks to confront the
parents and the Children did not see her communicate to the biological parents.
They contend that it is in the Children’s best interests for their foster
parenthood to continue.
[32] DCS argues that the record supports the trial court’s findings of fact that Foster
Parents appear to challenge. It asserts that Foster Parents waived their
argument that the statutes governing the termination of parental rights are
applicable because they raise it for the first time on appeal. It also contends that
termination statutes are applicable only when a parents’ rights are terminated
and that returning the Children to Foster Parents was not in the Children’s best
interests.
[33] Both parties cite Ind. Trial Rule 52(A), which provides that “the court on
appeal shall not set aside the findings or judgment unless clearly erroneous, and
due regard shall be given to the opportunity of the trial court to judge the
credibility of the witnesses.” This review is implemented on appeal by a two-
tiered analysis, considering first whether the evidence supports the findings and
then whether the findings support the judgment. In re T.S., 906 N.E.2d 801,
804 (Ind. 2009). Findings are clearly erroneous when there are no facts or
inferences drawn therefrom that support them. Id. A judgment is clearly
erroneous if the findings do not support the trial court’s conclusions or the
conclusions do not support the resulting judgment. Id.[34] The Indiana Supreme Court has held:
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[F]oster relationships are designed to be temporary, providing a
“safe, nurturing environment” until the child can either be
returned to the natural parents or adopted by new ones. Indiana
Foster Family Handbook 46 (1995). Furthermore, the foster
relationship is contractual; the parents are reimbursed by the
State for their care of the children. See id. at 101-05.
Worrell v. Elkhart Cty. Office of Family & Children, 704 N.E.2d 1027, 1029 (Ind.
1998). We also observe that 465 I.A.C. 2-1.5-3 is titled “Qualifications of the
foster family; general” and provides: “Foster parents’ ability to meet these
competencies shall be reevaluated at each relicensure and at any other time at
the discretion of the department or child placing agency.”
[35] The court’s order stated that it was “very concerned by the shifting and typically
uncorroborated accounts of the children’s alleged behavior . . . .” Appellants’
Appendix Volume II at 27. The record reveals that, while Foster Mother and
other relatives reported sexual behavior of the Children, other witnesses
testified they did not observe such behavior. DCS Family Case Manager
Supervisor Isley testified that she had 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 that they witnessed any such behavior. On
cross-examination, CASA Cook 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. Lyndi Cook, the Children’s
case worker, testified that the paternal grandparents did not talk to her about
the Children’s sexualized behavior during the time the Children were placed
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with them. She also testified that no teacher ever came to her about sexualized
behavior from the Children. We cannot say that the court’s finding is clearly
erroneous.
[36] The court also stated that Foster Mother’s actions reflected “(a) a surprising
lack of restraint; and (b) obsessive and/or compulsive behavior.” Appellee’s
Appendix Volume II at 27. The record reveals that DCS Family Case Manager
Supervisor Isley testified that Foster Mother “hounded” Ale.P. and Ala.P.
regarding the idea that their biological parents sexually molested them to the
point that Ale.P. and Ala.P. stated that molestation occurred “just to get out of
the room . . . .” Transcript Volume II at 41. Detective Jumper testified that
Foster Mother’s “story did change,” that Foster Mother “wanted to believe so
badly that these kids had been molested,” and that “she was obsessed with this
whole situation.” Transcript Volume III at 9, 12. The court also heard
testimony regarding the Foster Mother’s listening at the door to the interview
room and the incident at the parade. Again, we cannot say that the court’s
findings are clearly erroneous.
[37] While CASA Cook recommended that the Children be returned to Foster
Parents’ care, others testified that the Children should not be returned.
Specifically, Lyndi Cook recommended that the Children not remain with the
Foster Parents. When asked if she believed that the Foster Parents may have
emotionally harmed the Children, McGinnis, the local office director in Miami
County and an employee of DCS, answered: “Possibly, yes.” Id. at 110. She
also testified that the concern was that Foster Mother planted information in
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the Children making them believe they had been sexually abused when they
had not been. Under the circumstances, we conclude that the juvenile court’s
judgment is not clearly erroneous.
Conclusion
[38] For the foregoing reasons, we affirm the juvenile court’s denial of the Foster
Parents’ motion for the return of the Children.
[39] Affirmed.
May, J., and Pyle, J., concur.
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