FOR PUBLICATION

ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

JOEL C. WIENEKE                              GREGORY F. ZOELLER
Wieneke Law Office, LLC                      Attorney General of Indiana
Plainfield, Indiana
                                             ROBERT J. HENKE
                                             Deputy Attorney General
                                             Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

IN THE MATTER OF M.S.                        )
(A Child Alleged in Need of Services),       )
                                             )
      And                                    )
                                             )          December 27 2013, 7:39 am
K.S., (Mother)                               )
                                             )
      Appellant-Respondent,                  )
                                             )
             vs.                             )    No. 67A04-1305-JC-212
                                             )
THE INDIANA DEPARTMENT OF                    )
CHILD SERVICES,                              )
                                             )
      Appellee-Petitioner.                   )


                    APPEAL FROM THE PUTNAM CIRCUIT COURT
                       The Honorable Matthew L. Headley, Judge
                            Cause No. 67C01-1302-JC-14




                                  December 27, 2013


                             OPINION - FOR PUBLICATION
ROBB, Chief Judge

                                  Case Summary and Issues

       K.S. (“Mother”) appeals the trial court’s dismissal of the Child in Need of

Services (“CHINS”) case regarding her son M.S. Mother raises two issues for our

review: (1) whether the trial court’s out-of-state placement of M.S. with his father

(“Father”) was error; and (2) whether the Indiana Department of Child Services’ (“DCS”)

request for dismissal of the CHINS proceedings violated Indiana Code section 31-34-21-

5.5 by failing to make reasonable efforts to preserve a family. Concluding the trial

court’s placement of M.S. was not error and that Indiana Code section 31-34-21-5.5 was

not violated, we affirm.

                                Facts and Procedural History

       On February 4, 2013, DCS received a report that Mother was abusing drugs inside

the home and leaving her five children with their sick grandmother while she went out

seeking drugs.1 Two days later, on February 6th, a DCS case manager visited Mother’s

home and requested that Mother submit to a random drug screen. Mother submitted to

the drug test and admitted to the DCS officer that she would likely “test positive for

Vicodin, marijuana and morphine.” Transcript at 4. The case manager spoke with the

children, but Mother would not allow them to leave earshot, and it was apparent to the

case manager that the children had been coached or were afraid to speak.

       On February 8th, DCS again visited the home and learned that Mother had been


       1
           There were five children involved in the CHINS proceedings; however, this appeal only
concerns the placement of M.S.

                                               2
missing since DCS’s prior visit.      DCS was able to speak with the children, who

confirmed they had not seen Mother for a few days. The children revealed several facts

which were of concern to DCS, including: Mother had given one of the children a black

eye the previous year; one of the children, who was two years old, was kept strapped into

a car-seat constantly throughout the day and slept in the car-seat at night; the children’s

grandmother or low-functioning aunt are often left to take care of the children;

grandmother takes a lot of medicine and often falls asleep while watching the children;

and grandmother hits the children on the arms and legs with a wooden back-scratcher.

DCS also observed that the children exhibited a foul odor, as if they had not bathed for a

while. The children were removed from the home that afternoon.

       DCS filed a CHINS petition on February 12th, alleging Mother was dependent on

drugs, that she was unable to care for her children, and that proper caregivers had not

been provided for the children. A detention and initial hearing was held on the same day,

but Mother failed to appear because DCS was unable to contact her or determine her

whereabouts. DCS was also in the process of locating M.S.’s father, who was in the

military and stationed in the State of Washington. Mother’s drug test results came back

positive for methamphetamine, amphetamine, cocaine, BZE, hydromorphone, and

morphine. M.S. remained in foster care following the hearing.

       On February 28, 2013, the trial court held an admission hearing at which both

Mother and Father were present. Mother admitted to the allegations in the CHINS

petition and that M.S. was a CHINS. The trial court then questioned Father regarding his

willingness and ability to take care of M.S. Father indicated that he was willing and able

                                            3
to care for M.S.; he rented an apartment and lived by himself; and he would be honorably

discharged from the military in three months and indicated that he planned to find

employment in the private sector. Mother stated that she would rather see M.S. placed

with Father than with a foster family but expressed concern about the long-distance

situation the placement would create.

       On March 4, 2013, the trial court issued a written Order on Initial/Detention and

Custody Hearing, which provided for the placement of M.S. with Father over the

objection of DCS. Specifically, the trial court found:

       The placement is an emergency required to protect the health and welfare
       of the children for the following reasons: [M.S.] is currently in a foster
       home which is more restrictive than necessary. [Father] is fit, willing and
       able to care for him and it is in [M.S.’s] best interest to be in the care and
       custody of his father.

Appellant’s Appendix at 15. The trial court also ordered an inspection of Father’s home

to determine the safety and fitness of the home for the purpose of housing a child, which

was to be completed by March 21, 2013.

       A dispositional hearing was held on March 21, 2013. At that time, DCS had not

yet arranged an inspection of Father’s home in Washington. Mother’s attorney said that

Mother was living a “transient existence,” tr. at 91; Mother had no permanent residence,

vehicle, or phone at the time. Because of those circumstances and Mother’s drug-related

issues, it was pointed out that administration of DCS services for Mother would be

hindered and that there may be difficulties with arranging supervised visitation.

       Father informed the court that his term in the military would be over at the end of

May and that he planned to move to San Diego, California at that time. While Father was

                                             4
at work, his mother (M.S.’s paternal grandmother), who had gone up to Washington from

her home in San Diego, had been watching M.S. The parties also discussed custody of

M.S. at the dispositional hearing. Father had obtained a default divorce from Mother in

2009 from a court in San Diego County, California. However, that court declined

jurisdiction over M.S., and thus, no custody determination had ever been made with

respect to M.S.2

        DCS arranged for an inspection of Father’s home to be conducted by the

Community and Family Services Foundation (“CFSF”) of Port Orchard, Washington.

The inspection was done on April 17, 2013. The inspector found no substantial safety

concerns3 and reported that “[M.S.] was a very happy and well adjusted boy.”

Appellant’s App. at 28. The report also noted that “[M.S.] was emphatic that he wants to

live with his father.” Id. at 29.

        On April 23, 2013, DCS filed a motion to dismiss the CHINS proceedings as to

M.S., stating there was no good cause why the trial court should continue jurisdiction in

the matter; DCS attached the CFSF report as an exhibit to its motion to dismiss. The trial

court granted the DCS motion on April 24, 2013. This appeal followed.




        2
          DCS contends that both Father and Mother maintained custody over M.S., since no custody
order had been made prior to this case. At the dispositional hearing, Father’s attorney stated an intent to
file a motion seeking a court order officially granting custody of M.S. to Father, and the trial court
indicated a willingness to assume jurisdiction for the purpose of making a custody determination.
However, the record does not indicate whether such a motion was ever filed.
        3
         The CFSF report indicated that CFSF’s only concern was that M.S. did not have his own bed,
which would reportedly be remedied when Father moved to San Diego at the end of the following month.

                                                    5
                                      Discussion and Decision

                         I. Out-of-State Placement of M.S. with Father

        Mother contends that the trial court erred by placing M.S. with Father, who lives

in the State of Washington, after M.S. was adjudicated a CHINS. Mother points to

Indiana Code section 31-34-20-1, which regulates the out-of-state placement of a child in

CHINS proceedings. The pertinent portion of that statute provides:

        (b) A juvenile court may not place a child in a home or facility that is
        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.

Ind. Code § 31-34-20-1(b). Mother argues that the trial court’s placement of M.S.

violates the statute and is not supported by the evidence. Conversely, DCS contends that

the child’s placement with Father was not error.4

        Importantly, M.S.’s placement was not recommended or approved by the director


        4
           Mother argues on reply that DCS should be estopped from arguing in favor of M.S.’s out-of-
state placement with Father because DCS objected to the placement at the hearing on February 28, 2013.
“[J]udicial estoppel prevents a party from asserting a position in a legal proceeding inconsistent with one
previously asserted. . . . The purpose of judicial estoppel is to protect litigants from allegedly improper
conduct by their adversaries.” Am. Family Mut. Ins. Co. v. Ginther, 803 N.E.2d 224, 234-35 (Ind. Ct.
App. 2004), trans. denied. While DCS did initially object to the placement, DCS effectively recanted its
objection during the dispositional hearing on March 21 and by seeking dismissal of the CHINS
proceedings. Therefore, judicial estoppel is not applicable here. Moreover, the goal of DCS is to protect
children and serve the best interest of a child; its position in certain proceedings can be expected to
change as circumstances change or information is developed. The public interest is unlikely to be served
by prohibiting DCS from changing its position throughout the course of CHINS proceedings.

                                                    6
of DCS, and the location of Father’s home was more than fifty miles from M.S.’s

previous residence. Thus, the trial court must have found “based on clear and convincing

evidence that . . . the out-of-state placement is appropriate because there is not a

comparable facility with adequate services located in Indiana . . . .” Id.

       When reviewing a judgment requiring proof by clear and convincing evidence, an

appellate court may not impose its own view as to whether the evidence meets that

burden. A.J.L. v. D.A.L., 912 N.E.2d 866, 870 (Ind. Ct. App. 2009). Rather, we ask

whether a reasonable trier of fact could conclude that the evidence supports the judgment,

considering only the probative evidence and reasonable inferences that support the

judgment. Id. We will neither reweigh evidence nor judge witness credibility. Id.

       We begin by recognizing that M.S. was not placed in an out-of-state facility

arbitrarily chosen by the trial court. Rather, M.S. was placed with his natural father.

Indeed, “Indiana law has long recognized that ‘natural parents are entitled to the custody

of their minor children, except when they are unsuitable persons to be entrusted with their

care, control, and education.’” In re Guardianship of B.H., 770 N.E.2d 283, 285 (Ind.

2002) (quoting Gilmore v. Kitson, 165 Ind. 402, 406, 74 N.E. 1083, 1084 (1905)). We

believe this presumption in favor of natural parents lends strong support to the trial

court’s decision to place M.S. with Father.

       At the outset, the trial court’s decision looks very different when the proposed out-

of-state placement is with a natural parent. The court’s inquiry is whether “out-of-state

placement is appropriate because there is not a comparable facility with adequate services

located in Indiana.” Ind. Code § 31-34-20-1(b)(2)(A). Placement of a child with his

                                              7
natural parent is a unique situation, and no facility—inside or outside of Indiana—is

equal to it. Here, M.S.’s previous living situation was with a foster family, and Father

was willing and able to take custody of M.S. At the time of the placement, Father had a

steady job as a military serviceman and intended to seek employment in the private sector

upon his discharge, at which time he intended to move to San Diego, California, near

M.S.’s paternal grandmother. An inspection of Father’s home in Washington revealed

that the home “met all safety requirements” and that “[M.S.] was a very happy and well

adjusted boy.” Appellant’s App. at 28. The inspection report also noted that M.S.

wished to continue living with Father.

       Mother’s argument on appeal points out that Father had not seen M.S. in four

years and that the trial court had no independent knowledge of the condition of Father’s

home at the time of placement. Indeed, an inspection of the home was not conducted

until after M.S. began living with Father in Washington. We believe more in-depth

questioning of Father and a home inspection prior to placement would have certainly

been prudent. A more cautious approach would be preferable when placing a child out-

of-state in this scenario. Although, here, the end result was to the child’s benefit, it is not

difficult to imagine how this story could have had a not-so-happy ending.

       We believe that the evidence in this case supported the continued out-of-state

placement with M.S.’s natural father, which the trial court found to be in the child’s best

interest. Therefore, the trial court’s decision to place M.S. with Father and eventually

dismiss the CHINS proceedings was not error.



                                              8
                              II. Preservation of Families

      Mother also argues on appeal that DCS neglected its duty under Indiana Code

section 31-34-21-5.5 to make “reasonable efforts to reunify or preserve a family.” In

seeking that end, “the child’s health and safety are of paramount concern.” Ind. Code §

31-34-21-5.5(a).

      DCS maintains that its reunification efforts were reasonable in this case, pointing

out that Mother was ill-equipped to care for M.S. and that the primary concerns for

M.S.’s health and safety were satisfied through continued placement with Father. We

agree. The health and safety of M.S. was served by his placement with Father, as

evidenced by the CFSF report stating the same. Moreover, the placement of M.S. with

Father was a familial reunification of sorts, albeit not of the kind Mother would have

preferred. In light of the circumstances, we believe DCS’s reunification efforts were

reasonable.

                                      Conclusion

      Concluding the trial court’s placement of M.S. with Father was not error and that

DCS did not violate Indiana Code section 31-34-21-5.5, we affirm.

      Affirmed.

BARNES, J., concurs.

BROWN, J., concurs with separate opinion.




                                            9
                                 IN THE
                       COURT OF APPEALS OF INDIANA

IN THE MATTER OF M.S.                             )
(A Child Alleged in Need of Services),            )
                                                  )
       And                                        )
                                                  )
K.S., (Mother)                                    )
                                                  )
       Appellant-Respondent,                      )
                                                  )
                 vs.                              )   No. 67A04-1305-JC-212
                                                  )
THE INDIANA DEPARTMENT OF                         )
CHILD SERVICES,                                   )
                                                  )
       Appellee-Petitioner.                       )


BROWN, Judge, concurring

       The majority observes that the court did not have independent knowledge of the

condition of Father’s home at the time of M.S.’s placement, noting that the inspection

was not conducted until after M.S. began living with Father in Washington, and states

that “[a] more cautious approach would be preferable when placing a child out-of-state in

this scenario.” Slip op. at 8. Although I concur with the majority, I write separately to

note that not only do I agree it would have been prudent to perform the home inspection

prior to placing M.S., but I am also concerned about the subsequent lack of supervision

provided by the trial court prior to dismissing the CHINS proceedings. M.S. was placed

with Father on March 4, 2013 at the initial detention hearing and allowed to go with

Father to Washington.         On April 4, 2013, the court entered a dispositional decree


                                             10
regarding Father which ordered him to perform a number of actions including contacting

the family case manager weekly, notifying the family case manager of any household or

employment changes and any arrest of any household member, enrolling in programs if

recommended by the family case manager, keeping all appointments with any service

providers, signing any releases necessary for the family case manager to monitor

compliance with the terms of the court’s order, maintaining suitable, safe, and stable

housing, refraining from consuming or selling any controlled substances, obeying the

law, submitting to random drug/alcohol screens, meeting all the medical and mental

health needs of M.S. in a timely and complete manner, providing M.S. with a safe,

secure, and nurturing environment and being an effective caregiver with the necessary

skills, knowledge, and abilities to provide M.S. with this type of environment on a long

term basis, ensuring that M.S. will become engaged in a home-based counseling program,

and seeing that M.S. is properly fed, supervised, and enrolled in and attending school.

The decree awarded DCS wardship of M.S. with the responsibility for supervision, care,

and placement. The decree also scheduled a periodic case review hearing for June 27,

2013. On April 17, 2013, the CFSF in Washington conducted an inspection of Father’s

home, and on April 23, 2013, less than a week after the inspection, DCS filed its motion

to dismiss the CHINS proceedings. The court granted the motion the next day.

      Ind. Code § 31-34-21-11 provides that “[w]hen the juvenile court finds that the

objectives of the dispositional decree have been met, the court shall discharge the child

and the child’s parent, guardian, or custodian.”      Clearly the statute contemplates

achievement of the requirements of the dispositional decree. Here, in the short span of

                                           11
nineteen days between the entry of the decree and the filing of the motion to dismiss by

DCS, there was no time to have the scheduled case review hearing and no showing

whatsoever of Father’s compliance with any of the terms of the decree.

       Ind. Trial Rule 41(A)(2) allows for voluntary dismissals by order of the court and

provides in part that “[e]xcept as provided in subsection (1) of this subdivision of this

rule, an action shall not be dismissed at the plaintiff’s instance save upon order of the

court and upon such terms and conditions as the court deems proper.” (Emphasis

added).

       Mother testified at the February 28, 2013 hearing that she was “floored” to see and

speak to Father because she had not “seen him in almost four and a half years,” he “has

been an absent . . . parent,” and he was “a stranger” to M.S. Transcript at 65. Father did

not dispute this. Father also indicated that although he had another child who was eight

years old at the time of the hearing, he had not seen that child in about seven years.

Further, Father indicated to the CFSF at the inspection of his Washington apartment that

he was intending to move to San Diego “soon” and would be establishing a new

residence there. Appellant’s Appendix at 28. Under such circumstances, despite the

motion by DCS to dismiss the CHINS petition, I believe that M.S. would have been

better served had the court denied the motion and ordered that DCS continue with

services for a period of time to monitor Father’s parenting and compliance with the terms

of the decree.




                                           12
