                                                                           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.



Court of Appeals of Indiana | Opinion 52A02-1612-JC-2864 | July 28, 2017                      Page 1 of 22
[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

      Court of Appeals of Indiana | Opinion 52A02-1612-JC-2864 | July 28, 2017   Page 2 of 22
      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




      Court of Appeals of Indiana | Opinion 52A02-1612-JC-2864 | July 28, 2017   Page 3 of 22
      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.




      Court of Appeals of Indiana | Opinion 52A02-1612-JC-2864 | July 28, 2017   Page 4 of 22
       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


       Court of Appeals of Indiana | Opinion 52A02-1612-JC-2864 | July 28, 2017   Page 5 of 22
       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

       Court of Appeals of Indiana | Opinion 52A02-1612-JC-2864 | July 28, 2017   Page 6 of 22
       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


       Court of Appeals of Indiana | Opinion 52A02-1612-JC-2864 | July 28, 2017   Page 7 of 22
       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


       Court of Appeals of Indiana | Opinion 52A02-1612-JC-2864 | July 28, 2017    Page 8 of 22
       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,


       Court of Appeals of Indiana | Opinion 52A02-1612-JC-2864 | July 28, 2017   Page 9 of 22
       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:


       Court of Appeals of Indiana | Opinion 52A02-1612-JC-2864 | July 28, 2017   Page 10 of 22
        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.


Court of Appeals of Indiana | Opinion 52A02-1612-JC-2864 | July 28, 2017   Page 11 of 22
               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.



       Court of Appeals of Indiana | Opinion 52A02-1612-JC-2864 | July 28, 2017    Page 12 of 22
[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


       Court of Appeals of Indiana | Opinion 52A02-1612-JC-2864 | July 28, 2017   Page 13 of 22
       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.




       Court of Appeals of Indiana | Opinion 52A02-1612-JC-2864 | July 28, 2017   Page 14 of 22
       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.”

       Court of Appeals of Indiana | Opinion 52A02-1612-JC-2864 | July 28, 2017                            Page 15 of 22
               (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

       Court of Appeals of Indiana | Opinion 52A02-1612-JC-2864 | July 28, 2017      Page 16 of 22
       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

       Court of Appeals of Indiana | Opinion 52A02-1612-JC-2864 | July 28, 2017   Page 17 of 22
       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

       Court of Appeals of Indiana | Opinion 52A02-1612-JC-2864 | July 28, 2017    Page 18 of 22
       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:


       Court of Appeals of Indiana | Opinion 52A02-1612-JC-2864 | July 28, 2017    Page 19 of 22
               [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


       Court of Appeals of Indiana | Opinion 52A02-1612-JC-2864 | July 28, 2017   Page 20 of 22
       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

       Court of Appeals of Indiana | Opinion 52A02-1612-JC-2864 | July 28, 2017   Page 21 of 22
       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.




       Court of Appeals of Indiana | Opinion 52A02-1612-JC-2864 | July 28, 2017   Page 22 of 22
