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 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 SERVIC ES, ) ) Appellee

- Petitioner

. )

APPEAL FROM THE HENDRICKS CIRCUIT COURT The Honorable Jeffrey V. Boles , Judge Cause No s
. 32C01

- 1206

- JC

- 11 and 32C01

- 1206

- JC

- 12

March 7, 20132 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- NOT FOR PUBLICATION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
Chi ldren 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 appr oved , Maternal G randparents’ relocation with the Children to Wisconsin (“the Wisconsin Placement”)

. The Children’s father, Appellant

- Res pondent 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 p lacement 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 i n Avon with Father3

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

m ultiple injuries over space and time wit h 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 re lated 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 C hildren with Maternal Grandparents because they lived approximately one mile fro m Mother and Father’s home. On June 4, 2012, DCS filed a petition requesting that the C hildren 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 sch eduled 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, ap proximately 540 miles or a

1 An examination of B.W. on June 1, 2012, revealed “no physical health concerns.” Appellant’s App. p. 21.4

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 G randparents and relocate with the m to Wisconsin . The juvenile court set the matter for a hearing on September 20, 2012, and DCS filed its predispositional r eport on that date.
I n it s predispositional report , DCS recommended that the Children continue their placement with Maternal G randparent s, 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 li sted “ reunification ” as the Children’s permanency plan

. Appellant’ s App. p. 58

. The predispostional report was s igned by FCM Ayriane Bailey and her DCS s upervisor, Jessica Klatte. At the emergency hearing on September 20, 2012, the juvenile court was adv ised that Mother pla nned to move to Wisconsin and live near M ate rnal G randparents and that she approved of the Wisconsin Placement. Father testified in opposition to the
p lacement, 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
G randparents, Paternal G randmother had been an active part of the Children’s lives since

t heir births , was able to care for and financially support the C hildren , and had been approved as a possible placement by DCS. DCS presented the testimony of FCM Bailey, who opined that it is in the5

Children’s “ best interests ” to continue their placement wi th Maternal G randparents, despite the ir relocation to Wisconsin. Tr. p. 10 . FCM Bailey added that, although
Paternal G randmother 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 mater nal grandparents.” Tr. p. 20. Ultimately, the juvenile court approved the Wisconsin Placement an d 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
C hildren. Tr. pp. 43, 51. And likewise, i n 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. T he court ordered that the Children “remain in the placem ent of mat ernal 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 Nov ember 10, 2012, the court approved GAL Sauer’s recommendation s , granting Father parenting time with6

the Children in Wisconsin on the first weekend of each month , and in Avon every third Thursday through Tuesday. Mother is re sponsible for transporting the C hildren to and
from Avon for the latter.
DISCUSSION AND DECISION When reviewing a juvenile court’s dispositional order “ w e 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 cou rt’s approval of the Wisconsin P lacement is clearly erroneous because DCS fail ed to “make reasonable efforts to preserve and reunify” the family. Ind. Code § 31

- 34

- 21

- 5.5(b). “I f 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 mak e it possible for the chil d to return safely to the child’ s home as soon as possi ble.” Fa ther claims that the Wisconsin P lacement is not reasonable because
it effectively prevents him from exercising parenting time with the Children, in frustration of DCS’s plan for famil y reunification. “In determining the extent to which reasonable efforts to reunify or preserve a family are appropriat e
... the child’ s health and safety are of paramount concern.” Ind.7

Code § 31

- 34

- 21

- 5.5(a)

. Here, FCM Bailey and GAL Sauer testified that the Wisconsin
P lacement is in the Children’s “best in terests.” Tr. p p. 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), w e cannot say that DC S’s reunification efforts are not reasonable. We emphasize that the juvenile court’s November 10, 2012 order granted Father five day s 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 cou rt’s approval of the
Wis consin P lace ment is not clearly erroneous.
II. Least Restrictive Setting
Father also argues that the juvenile court’s approval of the Wisconsin P lacement 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 argum ent 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:8 (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 fa mily life; (4) imposes the least restraint on the fre edom 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, a s o utlined above, DCS presented evidence that the Wisconsin
Placement was in the C hildren’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 restrictiv e, disruptive, and interfering or whether it provide d a reasonable opportunity for parent participation. The Wisconsin Placement is not clearly erroneous.
I I I. Comparable In
- State Home
Father next argues that the juvenile court erred by ordering an out

- o f

- 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 statu t e and is premised on his assertion that neither the DCS director nor the director’s designee recommended or approved the9

Wisconsin Placement under subsection (1). We conclude, however, that FCM Bailey
constitutes the designee of the DCS dire ctor for the purpose of the Children’s placement

. 2
G iven FCM Bailey’s unqualified recommendation of the Wisconsin P lacement, and especially considering her testimony that the placement is in the Children’s “best interests,” the court was not required to i ssue 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 s upervisor.