FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: 

JOEL C. WIENEKE GREGORY F. ZOELLER

Wieneke Law Office, LLC Attorney General of Indiana

Plainfield, Indiana

ROBERT J. HENKE

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

IN THE MATTER OF M.S. )

(A Child Alleged in Need of Services), )

)

And )

)

K.S., (Mother) )

)

Appellant-Respondent, )

)

vs. ) No. 67A04-1305-JC-212

)

THE INDIANA DEPARTMENT OF )

CHILD SERVICES, )

)

Appellee-Petitioner. )

APPEAL FROM THE PUTNAM CIRCUIT COURT

The Honorable Matthew L. Headley, Judge

Cause No. 67C01-1302-JC-14

December 27, 2013

OPINION - FOR PUBLICATION
2

ROBB, Chief Judge

Case Summary and Issues

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

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

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

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

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

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

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

not violated, we affirm.

Facts and Procedural History

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

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

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

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

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

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

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

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

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

 

1

 There were five children involved in the CHINS proceedings; however, this appeal only 

concerns the placement of M.S. 
3

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

willingness and ability to take care of M.S. Father indicated that he was willing and able 
4

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

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

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

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

situation the placement would create.

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

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

objection of DCS. Specifically, the trial court found: 

The placement is an emergency required to protect the health and welfare 

of the children for the following reasons: [M.S.] is currently in a foster 

home which is more restrictive than necessary. [Father] is fit, willing and 

able to care for him and it is in [M.S.’s] best interest to be in the care and 

custody of his father.

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

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

was to be completed by March 21, 2013. 

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

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

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

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

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

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

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

May and that he planned to move to San Diego, California at that time. While Father was 
5

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

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

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

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

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

respect to M.S.2

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

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

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

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

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

live with his father.” Id. at 29. 

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

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

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

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

 

2

 DCS contends that both Father and Mother maintained custody over M.S., since no custody 

order had been made prior to this case. At the dispositional hearing, Father’s attorney stated an intent to 

file a motion seeking a court order officially granting custody of M.S. to Father, and the trial court 

indicated a willingness to assume jurisdiction for the purpose of making a custody determination. 

However, the record does not indicate whether such a motion was ever filed.

3

 The CFSF report indicated that CFSF’s only concern was that M.S. did not have his own bed, 

which would reportedly be remedied when Father moved to San Diego at the end of the following month. 
6

Discussion and Decision

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

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

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

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

CHINS proceedings. The pertinent portion of that statute provides:

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

located outside Indiana unless:

(1) the placement is recommended or approved by the director of

the department or the director’s designee; or

(2) the juvenile court makes written findings based on clear and 

convincing evidence that:

(A) the out-of-state placement is appropriate because there is 

not a comparable facility with adequate services located in 

Indiana; or

(B) the location of the home or facility is within a distance 

not greater than fifty (50) miles from the county of residence 

of the child.

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

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

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

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

 

4

 Mother argues on reply that DCS should be estopped from arguing in favor of M.S.’s out-ofstate placement with Father because DCS objected to the placement at the hearing on February 28, 2013. 

“[J]udicial estoppel prevents a party from asserting a position in a legal proceeding inconsistent with one 

previously asserted. . . . The purpose of judicial estoppel is to protect litigants from allegedly improper 

conduct by their adversaries.” Am. Family Mut. Ins. Co. v. Ginther, 803 N.E.2d 224, 234-35 (Ind. Ct. 

App. 2004), trans. denied. While DCS did initially object to the placement, DCS effectively recanted its 

objection during the dispositional hearing on March 21 and by seeking dismissal of the CHINS 

proceedings. Therefore, judicial estoppel is not applicable here. Moreover, the goal of DCS is to protect 

children and serve the best interest of a child; its position in certain proceedings can be expected to 

change as circumstances change or information is developed. The public interest is unlikely to be served 

by prohibiting DCS from changing its position throughout the course of CHINS proceedings. 
7

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

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

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

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

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

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

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

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

considering only the probative evidence and reasonable inferences that support the 

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

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

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

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

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

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

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

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

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

At the outset, the trial court’s decision looks very different when the proposed outof-state placement is with a natural parent. The court’s inquiry is whether “out-of-state 

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

located in Indiana.” Ind. Code § 31-34-20-1(b)(2)(A). Placement of a child with his 
8

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

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

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

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

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

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

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

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

wished to continue living with Father.

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

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

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

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

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

been prudent. A more cautious approach would be preferable when placing a child outof-state in this scenario. Although, here, the end result was to the child’s benefit, it is not 

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

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

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

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

dismiss the CHINS proceedings was not error.
9

II. Preservation of Families

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

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

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

31-34-21-5.5(a). 

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

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

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

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

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

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

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

reasonable. 

Conclusion

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

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

Affirmed.

BARNES, J., concurs.

BROWN, J., concurs with separate opinion. 
10

IN THE

COURT OF APPEALS OF INDIANA

IN THE MATTER OF M.S. )

(A Child Alleged in Need of Services), )

)

And )

)

K.S., (Mother) )

)

Appellant-Respondent, )

)

vs. ) No. 67A04-1305-JC-212

)

THE INDIANA DEPARTMENT OF )

CHILD SERVICES, )

)

Appellee-Petitioner. )

BROWN, Judge, concurring

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

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

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

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

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

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

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

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

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

Father to Washington. On April 4, 2013, the court entered a dispositional decree 
11

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

achievement of the requirements of the dispositional decree. Here, in the short span of 
12

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

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

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

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

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

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

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

added).

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

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

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

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

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

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

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

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

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

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

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

of the decree.