                                                                 Sep 02 2015, 8:49 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Patricia Caress McMath                                     Gregory F. Zoeller
Marion County Public Defender Agency                       Attorney General of Indiana
Indianapolis, Indiana
                                                           Robert J. Henke
                                                           Abigail R. Recker
                                                           Deputy Attorneys General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of D.B. (Minor                               September 2, 2015
Child), a Child in Need of                                 Court of Appeals Case No.
Services:                                                  49A02-1501-JC-48
D.B. (Father),                                             Appeal from the Marion Superior
                                                           Court
Appellant-Respondent,
                                                           The Honorable Marilyn A.
        v.                                                 Moores, Judge
                                                           The Honorable Danielle E.
                                                           Gaughan, Magistrate
The Indiana Department of
Child Services,                                            Trial Court Cause No.
                                                           49D09-1408-JC-1714
Appellee-Petitioner

and
Child Advocates, Inc.
Co-Appellee (Guardian ad Litem)



Court of Appeals of Indiana | Opinion 49A02-1501-JC-48 | September 2, 2015               Page 1 of 21
      Baker, Judge.


[1]   A two-year-old child’s mother was murdered by the child’s father figure. The

      child’s actual father lives out of state and is a virtual stranger who has had very

      little contact with Mother. But that fact, alone, is insufficient to support a

      finding that the child is a child in need of services (CHINS). Likewise, the fact

      that the Department of Child Services (DCS) was unable to gather sufficient

      information about the father’s fitness as a parent does not meet DCS’s burden

      to prove him unfit. We also find that the statutory framework related to

      placement of children in other states does not apply when the contemplated

      placement is with a biological parent. Consequently, we reverse the juvenile

      court’s order finding this child to be a CHINS.


                                                       Facts
[2]   D.B. (Child) was born out of state to D.B. (Father) and C.H. (Mother) on

      August 28, 2012. Father was present at Child’s birth, signed a paternity

      affidavit, and was involved in Child’s life for approximately four months.

      When Child was four months old, Mother and Child moved to Indianapolis.

      Father did not relocate with them and now lives in Minnesota.


[3]   After Mother and Child moved to Indianapolis, Father had little contact with

      his daughter. He sent money to Mother when she requested it but did not

      provide regular child support. Father alleges that Mother prevented him from

      seeing or having contact with Child on a regular basis and that she blocked his

      phone number, preventing him from calling to check in on Child. At the time

      Court of Appeals of Indiana | Opinion 49A02-1501-JC-48 | September 2, 2015   Page 2 of 21
      the CHINS petition was filed, the last time Father had seen Child was in July

      2013.


[4]   In August 2014, Mother and Child were living with Mother’s boyfriend, J.H.,

      and the five-month-old son of Mother and J.H. On August 10, 2014, Mother

      was shot and killed by J.H. in their home. J.H. then shot himself and later died

      as a result of the gunshot wound. Child and her half-brother were in the home

      when the shootings occurred.


[5]   DCS removed both children on August 10 and filed a petition alleging that

      Child and her half-brother1 were CHINS on August 12, 2014. Child was placed

      in kinship care with her godmother. At that time, Father’s whereabouts were

      unknown. Approximately one week later, Father contacted DCS and then

      appeared for an initial hearing on August 22, 2014.


[6]   In September, DCS began the process set forth by the Interstate Compact on the

      Placement of Children (ICPC) for both Father and Child’s maternal

      grandmother, who lives in Illinois. At the time of the factfinding hearing, the

      ICPC process had not yet been completed for Father.


[7]   On October 6, 2014, the juvenile court held a factfinding hearing regarding

      Child. Following the hearing, the juvenile court found that Child was a

      CHINS. Among other things, the court found as follows:




      1
          The son of Mother and J.H. is not part of this appeal.


      Court of Appeals of Indiana | Opinion 49A02-1501-JC-48 | September 2, 2015   Page 3 of 21
        6.     Prior to the CHINS being filed Father did not see [Child]
        very often. He last saw her on July 4, 2013 so he had not seen
        [Child] in over a year. Prior to July 4, 2013, Father had [Child]
        in his care while Mother was in a shelter for a few months. He
        was also present when [Child] was born. After Mother moved to
        Indianapolis when [Child] was 4 months old, Father did not see
        [Child] until July 4, 2013.


        7.    Father has had three supervised visits of 3 hours each with
        [Child] since the filing of the CHINS petition.


        8.    By his own admission, Father has never paid child support
        and only sent Mother money when she asked.


        9.     Father is living in Minnesota with his girlfriend and her
        child in an apartment. He has lived with his girlfriend for over a
        year but his name is not on the lease.


        10. Father was unable to appear in court today but
        participated telephonically because he could not miss work
        today. Father has no real plan for daycare in the event that
        [Child] was placed with him immediately.


        11. Father is presently employed with Creative Care
        Resources and has worked there for approximately 6 months.
        Depending on his hours, Father nets approximately $1200 every
        two weeks.


                                                  ***


        16. MCDCS has limited information regarding Father.
        Background checks have not been completed on Father or his
        girlfriend, and a home study has not been completed.


Court of Appeals of Indiana | Opinion 49A02-1501-JC-48 | September 2, 2015   Page 4 of 21
        17. Transition of [Child] to Father’s care will require a gradual
        transition so as not to further traumatize a very young child that
        has suffered a horrific loss only two months ago. If Father is
        approved through the ICPC process, the transition needs to be
        gradual so that Father and [Child] can establish a bond and so
        that any services[,] whether it be therapy for [Child] or services
        for Father[,] can be completed.


                                                  ***


        19. . . . [Child] has suffered the traumatic loss of Mother.
        Father, at the time of Mother’s death, had not seen [Child] in
        over a year. Clearly, given her age, he had no relationship with
        her. [Child] is bonded to her godmother and bonded to her
        maternal grandmother and to uproot her suddenly and
        completely would cause serious emotional harm to her. Absent
        the results of the ICPC or background checks and a home study,
        [Child’s] safety with Father cannot be determined. To suddenly
        send [Child], a child whose Mother has been murdered by her
        sibling’s father just two months ago, to Minnesota with a man
        that may be her father but who has not participated in her life
        would be another traumatic event in her young life that could
        only cause her greater harm. [Child] would be separated from
        her godmother, her grandmother and her sibling, the only
        remaining constants in her life. Any transition to Father[] needs
        to be gradual to ensure that Father has established a bond with
        [Child].


Appellant’s App. p. 62-64. Father now appeals.




Court of Appeals of Indiana | Opinion 49A02-1501-JC-48 | September 2, 2015   Page 5 of 21
                                     Discussion and Decision
                            I. Application of ICPC to a Parent
[8]    First, we must consider Father’s argument that the ICPC does not apply to

       placement of a child with her biological parent. This is an issue of statutory

       interpretation, to which we apply a de novo standard of review. N.L. v. State,

       989 N.E.2d 773, 777 (Ind. 2013).


[9]    An interstate compact is “‘an agreement between two or more states, entered

       into for the purpose of dealing with a problem that transcends state lines.’”

       Bester v. Lake Cnty. Office of Family and Children, 839 N.E.2d 143, 153 (Ind. 2005)

       (quoting P. Hardy, Interstate Compacts: The Ties that Bind 2 (1982)). All fifty

       states are now participating members in the ICPC. Id. The broad purpose of

       the ICPC is to facilitate “cooperation between states in the placement and

       monitoring of dependent children.” Id.


[10]   Our Supreme Court has observed that “[a]mong the most important safeguards

       for children, whom it is contemplated will be sent to live with adoptive parents

       in another state, is the [ICPC].” In re Adoption of Infants H., 904 N.E.2d 203,

       207 (Ind. 2009). The conditions for placement required by the ICPC “are

       designed to provide complete and accurate information regarding children and

       potential adoptive parents from a sending state to a receiving state and to

       involve public authorities in the process in order to ensure children have the

       opportunity to be placed in a suitable environment.” Id. at 208.


[11]   Our General Assembly has explained the purpose of the ICPC as follows:
       Court of Appeals of Indiana | Opinion 49A02-1501-JC-48 | September 2, 2015   Page 6 of 21
         ARTICLE I. PURPOSE AND POLICY


         It is the purpose and policy of the party states to cooperate with
         each other in the interstate placement of children to the end that:


         (a)      Each child requiring placement shall receive the maximum
                  opportunity to be placed in a suitable environment and
                  with a person or an institution having appropriate
                  qualifications and facilities to provide a necessary and
                  desirable degree and type of care.


         (b)      The appropriate authorities in a state where a child is to be
                  placed may have full opportunity to ascertain the
                  circumstances of the proposed placement, thereby
                  promoting full compliance with applicable requirements
                  for the protection of the child.


         (c)      The proper authorities of the state from which the
                  placement is made may obtain the most complete
                  information on the basis of which to evaluate a projected
                  placement before the placement is made.


         (d)      Appropriate jurisdictional arrangements for the care of
                  children must be promoted.


Ind. Code § 31-28-4-1 art. I.2




2
 DCS cites to and applies a newer version of the ICPC, which is located at Indiana Code section 31-28-6-1.
The newer version has substantively and substantially different language than the older version. But the
newer version is not effective until thirty-five states have enacted it. I.C. § 31-28-6-1 art. XIV(b). Currently,
only ten states have enacted the newer version of the ICPC. See
http://www.aphsa.org/content/AAICPC/en/NewICPC.html (last visited Aug. 6, 2015). Therefore, the
version found in section 31-28-6-1 is not yet effective, and we will apply the version found in chapter 31-28-4

Court of Appeals of Indiana | Opinion 49A02-1501-JC-48 | September 2, 2015                           Page 7 of 21
[12]   Father argues that the ICPC does not apply to placement of a child with an out-

       of-state biological parent. We agree. Article III of the ICPC sets forth the

       conditions for placement out of state:


                (a)      A sending agency may not send, bring, or cause to be sent
                         or brought into any other party state a child for placement in
                         foster care or as a preliminary to a possible adoption unless the
                         sending agency complies with each requirement under
                         article III and with the receiving state’s laws governing the
                         placement of children.


                (b)      Before sending, bringing, or causing any child to be sent or
                         brought into a receiving state for placement in foster care or as
                         a preliminary to a possible adoption, the sending agency shall
                         furnish the appropriate public authorities in the receiving
                         state written notice of the intention to send, bring, or place
                         the child in the receiving state. . . .


       I.C. 31-28-4-1 art. III (emphases added). Thus, the plain language of the statute

       makes clear that the ICPC applies only to the placement of a child in foster care

       or as a preliminary to a possible adoption.3


[13]   DCS contends that “the answer to the question of whether the ICPC applies is

       circumstantial in nature.” Appellee’s Br. p. 18. To the contrary, the answer to

       that question is statutory in nature. And the statute quite plainly provides that it




       to this case. We express no opinion herein as to the applicability of the newer version of the ICPC to an out-
       of-state parent.
       3
        Article VI also brings the out-of-state institutional placement of a child adjudicated a juvenile delinquent
       under the purview of the ICPC. I.C. § 31-28-4-1 art. VI.

       Court of Appeals of Indiana | Opinion 49A02-1501-JC-48 | September 2, 2015                          Page 8 of 21
       applies only to placement in foster care or a preadoptive home. A biological

       parent is neither of these. Accordingly, we hold that the ICPC does not apply

       to placement with an out-of-state parent. E.g., McComb v. Wambaugh, 934 F.2d

       474, 481-82 (3rd Cir. 1991) (holding that the ICPC applies only to “substitutes

       for parental care” and not to placement with a parent, emphasizing the

       importance of avoiding “entanglement with the natural rights of families” and

       highlighting “the limited circumstances that justify a state’s interference with

       family life”); Ark. Dep’t of Human Servs. v. Huff, 65 S.W.3d 880, 563-64 (Ark.

       2002) (holding that the ICPC does not apply to placement with a parent).

       Therefore, to the extent that the juvenile court’s CHINS determination in this

       case rested on the fact that the ICPC process had not yet been completed with

       respect to Father, we discount that basis of the adjudication.


                                     II. CHINS Adjudication
[14]   Father next argues that there is insufficient evidence supporting the juvenile

       court’s determination that Child is a CHINS. Our Supreme Court has

       explained the nature of a CHINS proceeding and appellate review of a CHINS

       finding as follows:

               A CHINS proceeding is a civil action; thus, “the State must
               prove by a preponderance of the evidence that a child is a
               CHINS as defined by the juvenile code.” In re N.R., 919 N.E.2d
               102, 105 (Ind. 2010). We neither reweigh the evidence nor judge
               the credibility of the witnesses. Egly v. Blackford County Dep’t of
               Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We consider
               only the evidence that supports the trial court's decision and
               reasonable inferences drawn therefrom. Id. We reverse only upon

       Court of Appeals of Indiana | Opinion 49A02-1501-JC-48 | September 2, 2015   Page 9 of 21
               a showing that the decision of the trial court was clearly
               erroneous. Id.


               There are three elements DCS must prove for a juvenile court to
               adjudicate a child a CHINS. DCS must first prove the child is
               under the age of eighteen; DCS must prove one of eleven
               different statutory circumstances exist that would make the child
               a CHINS; and finally, in all cases, DCS must prove the child
               needs care, treatment, or rehabilitation that he or she is not
               receiving and that he or she is unlikely to be provided or accepted
               without the coercive intervention of the court. In re N.E., 919
               N.E.2d at 105.


       In re K.D., 962 N.E.2d 1249, 1253-54 (Ind. 2012) (footnote omitted).


[15]   Our Supreme Court has cautioned that “[n]ot every endangered child is a child

       in need of services, permitting the State’s parens patriae intrusion into the

       ordinarily private sphere of the family.” In re S.D., 2 N.E.3d 1283, 1287 (Ind.

       2014). Here, DCS alleged that Child was a CHINS pursuant to Indiana Code

       section 31-34-1-1, which provides as follows:


               A child is a child in need of services if before the child becomes
               eighteen (18) years of age:


               (1)      the child’s physical or mental condition is seriously
                        impaired or seriously endangered as a result of the
                        inability, refusal, or neglect of the child’s parent, guardian,
                        or custodian to supply the child with necessary food,
                        clothing, shelter, medical care, education, or supervision;
                        and


               (2)      the child needs care, treatment, or rehabilitation that:

       Court of Appeals of Indiana | Opinion 49A02-1501-JC-48 | September 2, 2015    Page 10 of 21
                        (A)      the child is not receiving; and


                        (B)      is unlikely to be provided or accepted without the
                                 coercive intervention of the court.


       Our Supreme Court has interpreted this provision to require “three basic

       elements: that the parent’s actions or inactions have seriously endangered the

       child, that the child’s needs are unmet, and (perhaps most critically) that those

       needs are unlikely to be met without State coercion.” In re S.D., 2 N.E.3d at

       1287.


[16]   In this case, the following evidence is undisputed:


            Father is Child’s biological parent.
            Father has a stable home in which he has been living for over one year.
             He lives with his girlfriend and her eight-year-old child.
            There is no indication that Father’s home is inappropriate.
            Father has stable employment and makes approximately $1200 every
             two weeks.
            Father has looked into possible childcare facilities for Child should she
             be placed with him. He also has friends and family members who could
             help with childcare if the need arose.
            Father wants Child to be placed with him.

       It is undeniable that Child has undergone significant trauma in the past year. It

       could be argued that her “mental condition is seriously impaired or seriously

       endangered” as a result of that trauma. I.C. § 31-34-1-1(1). But DCS has

       certainly not proved that her mental and emotional condition is the result of

       Father’s “inability, refusal, or neglect . . . to supply the child with necessary



       Court of Appeals of Indiana | Opinion 49A02-1501-JC-48 | September 2, 2015     Page 11 of 21
       food, clothing, shelter, medical care, education, or supervision[.]” Id. To the

       contrary, Father is prepared to supply all of those necessities immediately.


[17]   It is undeniable that Father has not been a significant presence in Child’s life.

       He should not be lauded as an example of excellent parenting. It is likewise

       undeniable that he and Child do not really know one another as a result of his

       parental absence. Moreover, given the trauma already experienced by Child, to

       remove her from the caregiver she knows and loves and to place her with an

       unknown caregiver will be an additional trauma. But these facts, alone, do not

       lead to a conclusion that Father’s “actions or inactions have seriously

       endangered the child[.]” S.D., 2 N.E.3d at 1287; see also Santosky v. Kramer, 455

       U.S. 745, 753 (1982) (emphasizing that “[t]he fundamental liberty interest of

       natural parents in the care, custody, and management of their child does not

       evaporate simply because they have not been model parents”).


[18]   As Father is Child’s parent, there must be a presumption that he is a fit and

       capable parent, unless and until DCS proves otherwise by a preponderance of

       the evidence. DCS’s arguments that it did not have sufficient information to

       determine whether he was a fit and capable parent do not and cannot support a

       CHINS determination. It is DCS’s burden to prove by a preponderance of the

       evidence that Child would be seriously impaired or endangered in Father’s care.


[19]   Our Supreme Court recently emphasized this very point in reversing a

       termination of parental rights order. In re K.E., No. 82S04-1508-JT-491 (Ind.

       Aug. 20, 2015). In K.E., the child’s father was incarcerated but had presented


       Court of Appeals of Indiana | Opinion 49A02-1501-JC-48 | September 2, 2015   Page 12 of 21
       evidence that once released, he had plans for housing and employment. Our

       Supreme Court emphasized that DCS had presented no evidence to the

       contrary:


               we are not persuaded that there is any evidence in the record to
               contravene Father’s statements that upon his release he plans to
               live with his father (K.E.’s paternal grandfather) and work with
               him through Vectren. While Father did not substantiate this claim,
               DCS did not present any evidence to support a contradictive finding. No
               evidence indicates that Father was fabricating his plans for
               employment or that his father’s home is unsuitable for children.


       Id., slip op. p. 9 (emphasis added). The Court noted that although DCS

       contended that Father was unable to prove that he would be able to provide for

       the child upon release, “it is DCS’s burden to show by clear and convincing

       evidence that each of the elements provided in [the termination of parental

       rights statute] are met.” Id., slip op. p. 9 n.6. In other words, DCS must

       produce evidence to support its quest to terminate the parent-child relationship

       or, as in this case, to have a child declared to be a CHINS.


[20]   In the instant case, DCS has offered no evidence that Father’s residence or

       employment are in any way unstable. It has offered no evidence that Father is

       an unfit parent; it merely proved that he has been an absent one. Absent that

       evidence, DCS has failed to meet its burden.


[21]   We acknowledge that there is but a brief timeframe, dictated by statute,

       between the filing of a CHINS petition and a CHINS factfinding hearing. And

       we acknowledge the difficulty of gathering information and evidence about an

       Court of Appeals of Indiana | Opinion 49A02-1501-JC-48 | September 2, 2015   Page 13 of 21
       out-of-state parent. But the simple reality is that DCS bears the burden of proof

       in CHINS cases, and it is up to DCS to gather the facts and the evidence to

       support its CHINS petition. In this case, it failed to do so. We can only

       conclude that there is insufficient evidence in the record supporting the juvenile

       court’s conclusion that Child is a CHINS. Therefore, we reverse.


[22]   The judgment of the juvenile court is reversed.


       Riley, J., concurs, and Brown, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 49A02-1501-JC-48 | September 2, 2015   Page 14 of 21
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       In the Matter of D.B. (Minor                               Court of Appeals Case No.
       Child), a Child in Need of                                 49A02-1501-JC-48
       Services:
       D.B. (Father),
       Appellant-Respondent,

               v.

       The Indiana Department of
       Child Services,
       Appellee-Petitioner

       and
       Child Advocates, Inc.
       Co-Appellee (Guardian ad Litem)




       Brown, Judge, dissenting.


[23]   I respectfully dissent from the majority’s conclusion that the ICPC does not

       apply to an out-of-state placement with a natural parent in all circumstances. In

       Bester v. Lake Cnty. Office of Family & Children, the Indiana Supreme Court

       observed that whether the ICPC applies to the interstate reunification of


       Court of Appeals of Indiana | Opinion 49A02-1501-JC-48 | September 2, 2015             Page 15 of 21
       children with natural parents is an open question and that some jurisdictions

       have concluded the ICPC applies under those circumstances and others have

       concluded it does not. 839 N.E.2d 143, 146 n.2 (Ind. 2005) (referring to cases

       holding the ICPC does apply and does not apply to reunification of children

       with natural parents). The majority here concludes that, based on its language,

       the ICPC does not apply to placements with out-of-state parents. Slip op. at 8-

       9. I do not agree that this is always the case based on the language of the ICPC.


[24]   The purpose of the ICPC is to facilitate cooperation between participating states

       in the placement and monitoring of dependent children. See Ind. Code § 31-28-

       4-1, art. I. The majority cites to Article III of the ICPC, related to conditions

       for placement, and focuses on the language which refers to the transfer of a

       child “for placement in foster care or as a preliminary to a possible adoption,”

       which does not refer to the situation where a child is being sent to live with his

       or her natural parent. See Ind. Code § 31-28-4-1, art. III. However, this

       language is not dispositive. Article VIII of the ICPC expressly sets forth the

       limitations of the ICPC’s applicability, and this section does not preclude its

       application to agency placements with non-resident parents. See Ind. Code §

       31-28-4-1, art. VIII.4 Moreover, Article X provides that the provisions of the




       4
           Article VIII, titled “Limitations,” provides in part:

                  This compact shall not apply to:



       Court of Appeals of Indiana | Opinion 49A02-1501-JC-48 | September 2, 2015   Page 16 of 21
       ICPC “shall be liberally construed to effectuate the [ICPC’s] purposes.” Ind.

       Code § 31-28-4-1, art. X. See Dep’t of Children & Families v. Benway, 745 So.2d

       437, 438-439 (Fla. Ct. App. 1999) (observing that the purpose of the ICPC is to

       facilitate cooperation between participating states in the placement and

       monitoring of dependent children, that, although Article III references

       placement in foster care or as a preliminary to a possible adoption, Article VIII

       does not preclude its application to placements with non-resident parents, and

       that Article X provides the ICPC shall be liberally construed, and holding that

       the ICPC covers the out-of-state placement of a child with a natural parent).


[25]   Having established that the ICPC by its terms does not preclude its application

       to out-of-state placement with natural parents, the question becomes when the

       ICPC is applicable. On one hand, application of the ICPC may not make sense

       where there is no evidence that the out-of-state parent may be unfit to care for

       the child, or a public child welfare agency has not requested information from

       the ICPC office in the state of the out-of-state parent. On the other hand,

       application of the ICPC does make sense where evidence before the court

       suggests the out-of-state parent may be unfit to care for the child, the court has

       sought evidence regarding the parent’s fitness to care for the child, and a public



                        (a) The sending or bringing of a child into a receiving state by a parent, stepparent,
                        grandparent, adult brother or sister, adult uncle or aunt, or a guardian and leaving the
                        child with any such relative or nonagency guardian in the receiving state. . . .


       Ind. Code § 31-28-4-1 (emphasis added). Notably missing from the statute is any reference to a sending
       agency.



       Court of Appeals of Indiana | Opinion 49A02-1501-JC-48 | September 2, 2015                            Page 17 of 21
child welfare agency has submitted a request to the ICPC office in the other

state related to the placement. Indeed, the Association of Administrators of the

Interstate Compact on the Placement of Children (the “AAICPC”) has

recommended such an approach in determining when the ICPC is applicable.

AAICPC Regulation No. 3 provides in part:


        A placement with a parent from whom the child was not
        removed: When the court places the child with a parent from
        whom the child was not removed, and the court has no evidence that
        the parent is unfit, does not seek any evidence from the receiving state
        that the parent is either fit or unfit, and the court relinquishes
        jurisdiction over the child immediately upon placement with the
        parent. Receiving state shall have no responsibility for
        supervision or monitoring for the court having made the
        placement.

AAICPC Regulation No. 3 (found at http://www.aphsa.org/content/AAICPC

/en/ICPCRegulations.html) (last visited Aug. 20, 2015) (Emphasis added).

Additionally, the AAICPC states the following:

        Question:


        [] When does the ICPC govern the placement of a child with the
        child’s parent or parents and when does it not govern this type of
        placement?


        Answer:


        The ICPC does not apply when a non-delinquent child who is
        under the jurisdiction of a court is placed out-of-state with her or
        his parent when the following conditions exist:


Court of Appeals of Indiana | Opinion 49A02-1501-JC-48 | September 2, 2015    Page 18 of 21
                 The court does not have any evidence that the parent is
                 unfit to care for the child


                 The court does not seek any evidence with regard to the
                 parent’s fitness to care for the child


                 At the time of placement a request to place the child with
                 the parent has not been submitted to the ICPC office in the
                 other state


                 The ICPC office in the state where the parent lives has not
                 previously denied a request to place the child with the
                 parent


                 The court terminates its jurisdiction over the child at the
                 time of the placement


        The ICPC also does not apply when a child who is not a ward of
        the court or in the custody of a public child welfare agency goes
        to live with a parent in another state.


        The ICPC does apply when a court or public child welfare agency
        seeks to place a child with a parent located out-of-state if the court or
        agency has evidence that the parent may not be fit to care for the child or
        if the court or agency seeks an evaluation of the parent’s fitness. The
        ICPC applies to any placement with a parent if and when it is
        known that the child will remain a ward of the court or will
        remain in the custody of a public child welfare agency after going
        to live with the parent.

AAICPC FAQ (found at http://www.aphsa.org/content/AAICPC/en/

resources/ICPCFAQ.html) (last visited Aug. 20, 2015) (Emphases added).



Court of Appeals of Indiana | Opinion 49A02-1501-JC-48 | September 2, 2015       Page 19 of 21
[26]   The facts here are that DCS began the process set forth by the ICPC for Father

       and at the time of the factfinding hearing, that process had not been completed,

       including a home study and background checks on Father. Additionally,

       Father had little contact with Child, did not provide regular child support, lived

       with his girlfriend in an apartment but was not on the lease, did not have a plan

       for daycare, had worked for his current employer for approximately six months,

       and was essentially a stranger to Child. The juvenile court’s findings of these

       facts support its conclusion that “[a]bsent the results of the ICPC or background

       checks and a home study, [Child’s] safety with Father cannot be determined.”

       Child was placed with her godmother in Indiana, with whom she was bonded.

       Under the guidelines set forth by the AAICPC, these facts support application

       of the ICPC. See Arizona Dep’t of Econ. Sec. v. Leonardo, 22 P.3d 513, 518-520

       (Ariz. Ct. App. 2001) (noting that the majority of jurisdictions that have found

       the ICPC applicable to out-of-state placement of a child with a non-custodial

       parent and concluding that, based on Regulation No. 3, when the sending

       agency is a child protective services agency acting through the state, and the

       child is placed with a parent or other family member who does not have full

       custodial rights to or guardianship of the child, the ICPC applies to that out-of-

       state placement. The case notes further that “this is not to say that the parent

       may be presumed to be unfit; rather, he or she must be investigated to ensure

       that the child would be safe if placed with that parent,” and that, without the

       ICPC, a child agency “would lack the legal authority to arrange for services in

       another state and it would be patently impractical . . . to require an [agency]

       caseworker to travel to another state to investigate the propriety of a placement”
       Court of Appeals of Indiana | Opinion 49A02-1501-JC-48 | September 2, 2015   Page 20 of 21
       and “[t]he ICPC best safeguards a child’s welfare by requiring the receiving

       state to investigate and monitor the placement”); see also Benway, 745 So.2d at

       439 (noting that, “[o]nce a court has legal custody of a child, it would be

       negligent to relinquish that child to an out-of-state parent without some

       indication that the parent is able to care for the child appropriately” and “[t]he

       ICPC provides an effective mechanism for gleaning that evidence and for

       maintaining a watchful eye over the placement”).


[27]   For the reasons above, I conclude that the ICPC applies to placement with

       Father under these circumstances and thus that it was proper for the juvenile

       court to consider and in part rely upon the fact that the ICPC process had not

       yet been completed in making its determination.


[28]   The facts noted herein, together with the evidence regarding Child’s age and

       bond with her godmother and grandmother and lack of bond with Father,

       support the juvenile court’s conclusion. To suddenly send Child, whose

       Mother had been murdered by her sibling’s father two months earlier, to

       Minnesota with Father who has not participated in her life would be traumatic

       and could only cause Child greater harm. I agree with the juvenile court that

       any transition to Father needs to be gradual to ensure that Father has

       established a bond with Child and Child is in a safe environment.


[29]   For the foregoing reasons, I would affirm the decision of the juvenile court.




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