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               MEMORANDUM DECISION - NOT FOR PUBLICATION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

                                             2
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.

                                                  3
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


                                           4
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


                                              5
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.


                                              6
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:


                                             7
              (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


                                             8
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.

                                                9
