In Re The Matter of K.W. and B.W., Children in Need of Services: A.W. v. Indiana Dept. of Child Services ( 2013 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
Mar 07 2013, 8:27 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CARA SCHAEFER WIENEKE CHRISTINA D. PACE
Wieneke Law Office DCS Hendricks County
Plainfield, Indiana Avon, Indiana
ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE MATTER OF K.W. and B.W., )
CHILDREN IN NEED OF SERVICES; )
)
A.W., )
)
Appellant-Respondent, )
)
vs. ) No. 32A05-1210-JC-537
)
INDIANA DEPARMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE HENDRICKS CIRCUIT COURT
The Honorable Jeffrey V. Boles, Judge
Cause Nos. 32C01-1206-JC-11 and 32C01-1206-JC-12
March 7, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
Appellee-Petitioner the Department of Child Services (“DCS”) removed minor
children K.W. and B.W. (collectively, “the Children”) from their parents’ home after
K.W. suffered non-accidental and unexplained injuries while in his parents’ care. The
Children were adjudicated Children in Need of Services (“CHINS”), and the juvenile
court approved their temporary placement with the Children’s maternal grandparents
(“Maternal Grandparents”) in Avon. DCS subsequently recommended, and the juvenile
court approved, Maternal Grandparents’ relocation with the Children to Wisconsin (“the
Wisconsin Placement”).
The Children’s father, Appellant-Respondent A.W. (“Father”), appeals the court’s
approval of the Wisconsin Placement, arguing that DCS failed to make reasonable efforts
to reunite the family and that the placement does not provide the least restrictive and
disruptive setting available. Finding sufficient evidence that the Wisconsin Placement is
in the Children’s best interests, we conclude that that court’s approval is not clearly
erroneous. Father also argues that the trial court violated Indiana Code section 31-34-20-
1(b) by approving an out-of-state placement without the recommendation of the DCS
director or the director’s designee. We find that the family case manager’s (“FCM”)
recommendation of the Wisconsin Placement satisfies this statutory requirement and
affirm the judgment of the juvenile court.
FACTS AND PROCEDURAL HISTORY
Five-week-old K.W. and his one-year-old sister, B.W., lived in Avon with Father
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and their mother, R.R. (“Mother”). On June 1, 2012, DCS received a report that Mother
had taken K.W. to the hospital due to a swollen ear. A medical examination revealed that
K.W. suffered from
multiple injuries over space and time with no explanation: auricular
hematoma acute [(“cauliflower ear”)], healed torn frenulum, healing radius,
ulna, and clavicle fractures for more than two weeks. The bruising on the
chest is current. Torn frenulum requires blunt force to mouth and is not
related to either bleeding or bone disease. This pattern, constellation and
timing of injuries indicates repeated inflicted trauma in the absence of any
plausible accidental explanation.
Appellant’s App. p. 18. Mother and Father denied knowing the source of K.W.’s injuries
but admitted that K.W. had not been out of their care since birth.
Given the “non-accidental” nature of K.W.’s injuries, Appellant’s App. p. 26,
DCS removed K.W. and B.W.1 from Mother and Father’s home. DCS found both
Maternal Grandparents’ home in Avon and the Children’s paternal grandmother’s
(“Paternal Grandmother”) home in Indianapolis to be suitable placement options, but it
chose to place the Children with Maternal Grandparents because they lived
approximately one mile from Mother and Father’s home.
On June 4, 2012, DCS filed a petition requesting that the Children be adjudicated
CHINS, and the juvenile court appointed Melissa Sauer as their Guardian Ad Litem
(“GAL”). Mother and Father admitted to the CHINS allegations on August 23, 2012, and
a dispositional hearing was scheduled for September 27, 2012. Prior to the dispositional
hearing, the Children’s maternal grandfather accepted a job promotion that required
Maternal Grandparents’ relocation to Ellsworth, Wisconsin, approximately 540 miles or a
1
An examination of B.W. on June 1, 2012, revealed “no physical health concerns.” Appellant’s
App. p. 21.
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nine-and-one-half-hour drive from Avon. On September 14, 2012, DCS filed a motion
for an emergency hearing to determine whether the Children could continue their
placement with Maternal Grandparents and relocate with them to Wisconsin. The
juvenile court set the matter for a hearing on September 20, 2012, and DCS filed its
predispositional report on that date.
In its predispositional report, DCS recommended that the Children continue their
placement with Maternal Grandparents, finding that “they play an active role as family
members to the children and have had a relationship throughout the children’s lives.”
Appellant’s App. p. 55. DCS also recommended that Mother and Father exercise
parenting time with the Children and listed “reunification” as the Children’s permanency
plan. Appellant’s App. p. 58. The predispostional report was signed by FCM Ayriane
Bailey and her DCS supervisor, Jessica Klatte.
At the emergency hearing on September 20, 2012, the juvenile court was advised
that Mother planned to move to Wisconsin and live near Maternal Grandparents and that
she approved of the Wisconsin Placement. Father testified in opposition to the
placement, claiming he would lose his parenting time with the Children because he was
unemployed and could not afford transportation and lodging costs. Father proposed
Paternal Grandmother as an alternative placement for the Children. Like Maternal
Grandparents, Paternal Grandmother had been an active part of the Children’s lives since
their births, was able to care for and financially support the Children, and had been
approved as a possible placement by DCS.
DCS presented the testimony of FCM Bailey, who opined that it is in the
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Children’s “best interests” to continue their placement with Maternal Grandparents,
despite their relocation to Wisconsin. Tr. p. 10. FCM Bailey added that, although
Paternal Grandmother would be a suitable placement, switching placements would not be
in the Children’s “best interest[s].” Tr. p. 13. GAL Sauer also testified, agreeing with
DCS’s recommendation of the Wisconsin Placement “due to the young ages of the
children” and because “they have bonded with maternal grandparents.” Tr. p. 20.
Ultimately, the juvenile court approved the Wisconsin Placement and set the
matter of Father’s parenting time with the Children for determination at Father’s
dispositional hearing on September 27, 2012. At that hearing, FCM Bailey and GAL
Sauer again testified that the Wisconsin Placement was in the “best interests” of the
Children. Tr. pp. 43, 51. And likewise, in its dispositional order respective to Father, the
juvenile court found “[t]he needs of the child[ren] for care, treatment, or rehabilitation” to
be “placement with maternal grandparents, regular contact and monitoring by FCM and
regular visitation with parents.” Appellant’s App. p. 72. The court ordered that the
Children “remain in the placement of maternal grandparents,” that the parties meet and
come up with a parenting time plan for Father, and that DCS investigate Paternal
Grandmother as a potential supervisor of Father’s parenting time.
Father filed his appeal on October 26, 2012. Two weeks later, GAL Sauer
reported to the juvenile court that the parties were unable to reach an agreement as to
parenting time and, therefore, proposed her own parenting time recommendations based
on the Indiana Parenting Time Guidelines for similar situations. On November 10, 2012,
the court approved GAL Sauer’s recommendations, granting Father parenting time with
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the Children in Wisconsin on the first weekend of each month, and in Avon every third
Thursday through Tuesday. Mother is responsible for transporting the Children to and
from Avon for the latter.
DISCUSSION AND DECISION
When reviewing a juvenile court’s dispositional order “we apply a two-tiered
standard of review and may not set aside the findings of judgment unless they are clearly
erroneous.” In re A.C., 905 N.E.2d 456, 461 (Ind. Ct. App. 2009). We first determine
“whether the evidence supports the factual findings and then whether the findings support
the judgment. Findings are clearly erroneous when the record contains no facts to
support them either directly or by inference, and a judgment is clearly erroneous if it
relies on an incorrect legal standard.” Id.I. Reasonable Efforts
Father argues that the juvenile court’s approval of the Wisconsin Placement is
clearly erroneous because DCS failed to “make reasonable efforts to preserve and
reunify” the family. Ind. Code § 31-34-21-5.5(b). “If a child has been removed from the
child’s home,” Indiana Code section 31-34-21-5.5(b)(2) requires DCS to make
reasonable efforts “to make it possible for the child to return safely to the child’s home as
soon as possible.” Father claims that the Wisconsin Placement is not reasonable because
it effectively prevents him from exercising parenting time with the Children, in
frustration of DCS’s plan for family reunification.
“In determining the extent to which reasonable efforts to reunify or preserve a
family are appropriate … the child’s health and safety are of paramount concern.” Ind.
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Code § 31-34-21-5.5(a). Here, FCM Bailey and GAL Sauer testified that the Wisconsin
Placement is in the Children’s “best interests.” Tr. pp. 10, 13, 43, 51. Because we
consider good health and safety necessarily subsumed in a child’s best interests, see Ind.
Code § 31-17-2-8 (listing factors relevant to child’s best interests in custody
determinations), we cannot say that DCS’s reunification efforts are not reasonable. We
emphasize that the juvenile court’s November 10, 2012 order granted Father five days of
parenting time in Avon every month and made Mother responsible for transporting the
Children to and from these visits. Moreover, the testimony of FCM Bailey and GAL
Sauer supports the court’s finding in Father’s dispositional order that “[t]he needs of the
child[ren] for care, treatment, or rehabilitation are: placement with maternal
grandparents, regular contact and monitoring by FCM and regular visitation with
parents.” Appellant’s App. p. 72. Accordingly, the juvenile court’s approval of the
Wisconsin Placement is not clearly erroneous.
II. Least Restrictive Setting
Father also argues that the juvenile court’s approval of the Wisconsin Placement is
clearly erroneous because it is neither the least restrictive setting available nor the one
least disruptive to family life. He further claims that the placement interferes with family
autonomy and fails to provide him with a reasonable opportunity to participate in the
Children’s lives. Father relies on Indiana Code section 31-34-19-6, but his argument is
misguided. This statute provides:
If consistent with the safety of the community and the best interest of the
child, the juvenile court shall enter a dispositional decree that:
(1) is:
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(A) in the least restrictive (most family like) and most appropriate
setting available; and
(B) close to the parents’ home, consistent with the best interest and
special needs of the child;
(2) least interferes with family autonomy;
(3) is least disruptive of family life;
(4) imposes the least restraint on the freedom of the child and the child’s
parent, guardian, or custodian; and
(5) provides a reasonable opportunity for participation by the child’s
parent, guardian, or custodian.
(emphasis added). Here, as outlined above, DCS presented evidence that the Wisconsin
Placement was in the Children’s “best interests,” and the juvenile court issued findings to
that end. Therefore, the court was not required to consider whether the placement was
the least restrictive, disruptive, and interfering or whether it provided a reasonable
opportunity for parent participation. The Wisconsin Placement is not clearly erroneous.
III. Comparable In-State Home
Father next argues that the juvenile court erred by ordering an out-of-state
placement without issuing a finding that there is no comparable home located within
Indiana. Indiana Code section 31-34-20-1(b) prohibits a juvenile court from placing a
child in a home or facility located outside Indiana unless:
(1) the placement is recommended or approved by the director of the
department or the director’s designee; or
(2) the juvenile court makes written findings based on clear and convincing
evidence that:
(A) the out-of-state placement is appropriate because there is not a
comparable facility with adequate services located in Indiana; or
(B) the location of the home or facility is within a distance not greater
than fifty (50) miles from the county of residence of the child.
Father’s argument relies on subsection (2) of this statute and is premised on his assertion
that neither the DCS director nor the director’s designee recommended or approved the
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Wisconsin Placement under subsection (1). We conclude, however, that FCM Bailey
constitutes the designee of the DCS director for the purpose of the Children’s placement.2
Given FCM Bailey’s unqualified recommendation of the Wisconsin Placement, and
especially considering her testimony that the placement is in the Children’s “best
interests,” the court was not required to issue a finding regarding a comparable in-state
home.
The judgment of the trial court is affirmed.
NAJAM, J., and FRIEDLANDER, J., concur.
2
We note that FCM Bailey also recommended the Wisconsin Placement in her predispositional
report, which was signed by her DCS supervisor.
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