In Re Paternity of TP

920 N.E.2d 726, 2010 WL 334532
CourtIndiana Court of Appeals
DecidedJanuary 29, 2010
Docket49A02-0907-JV-685
StatusPublished
Cited by10 cases

This text of 920 N.E.2d 726 (In Re Paternity of TP) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Paternity of TP, 920 N.E.2d 726, 2010 WL 334532 (Ind. Ct. App. 2010).

Opinion

920 N.E.2d 726 (2010)

In The Matter of The PATERNITY OF T.P.,
M. and M.L., Appellants-Intervenors,
v.
B.C., Appellee-Petitioner, and
M.P., Respondent.

No. 49A02-0907-JV-685.

Court of Appeals of Indiana.

January 29, 2010.

*727 Bryan Lee Ciyou, Ciyou & Dixon, P.C., Indianapolis, IN, for Appellee.

Kevin C. Tyra, Jerry M. Padgett, Ozanam Free Legal Clinic c/o Tyra Law Firm, P.C., Indianapolis, IN, for Appellant.

OPINION

BRADFORD, Judge.

In this paternity action brought by B.C. ("Mother") against M.P. ("Father"), Appellants-Intervenors M. and M.L. ("Caretakers") challenge the trial court's denial of their petition for temporary and permanent modification of custody of T.P. Upon appeal, Caretakers challenge the trial court's conclusion that they did not qualify as de facto custodians and its denial of their petition seeking joint legal custody and permanent physical custody of T.P. We affirm.

FACTS AND PROCEDURAL HISTORY

T.P. was born to Mother and Father on September 1, 2001. When T.P. was an infant, Mother and Father worked for Caretakers' restaurant. On June 17, 2004, Mother and Father asked Caretakers to care for T.P. temporarily until Mother, who was homeless, could better provide for T.P. Caretakers agreed to care for T.P. On August 9, 2004, Mother reported T.P. missing to authorities. Authorities found *728 T.P. at the Caretakers' home. Caretakers showed authorities a notarized statement indicating Mother's and Father's consent that they care for T.P.

On August 10, 2004, the Marion County Office of Family and Children ("MCOFC")[1] initiated Child in Need of Services ("CHINS") proceedings. On August 11, 2004, the trial court concluded that T.P. was a CHINS and ordered that she be placed with Caretakers. Mother and Father were granted supervised visitation. The permanency plan for T.P. was reunification with her parents. On October 25, 2004, Mother filed a paternity action against Father. On November 8, 2004, the trial court established Father's paternity, granted him visitation, and ordered him to pay child support.

At some point, Caretakers went on vacation and left T.P. with someone who was not a certified foster care worker, causing authorities to remove T.P. from their care. At a January 2005 review hearing, the trial court noted that Mother was participating in services and "doing excellent." Appellant's App. p. 121. At an August 17, 2005 hearing, the court again noted that Mother was doing well and that she and T.P. had a strong bond. On October 26, 2005, MCOFC requested closure of the CHINS proceedings, and T.P. was placed in Mother's care.[2]

Caretakers continued to have a role in T.P.'s life and cared for her "many days out of the month," with Mother's permission. Beginning in the summer of 2007, according to the Caretakers, Mother moved multiple times and lacked proper housing. Caretakers provided Mother and T.P. with food and money. In July 2008, Caretakers wondered from Mother's appearance whether she was using drugs. During this time T.P. was sometimes "filthy," so Caretakers frequently cared for her. Tr. Vol. 1, p. 29.

During the period from May 2007 to September 10, 2008, Caretakers cared for T.P. for a total of 244 days. Mother admitted to having used drugs, including crack, in the summer of 2008. On August 24, 2008, Mother and her brother were involved in a physical altercation and arrested.

T.P. has difficulties with school. There are conflicting accounts regarding whether T.P. has been diagnosed with behavioral or learning problems.[3] T.P.'s frequent moves with Mother have caused her to change schools multiple times. T.P. struggled in kindergarten and missed more than ten percent of her school days. T.P. was promoted to the first grade, which she began in August of 2008. Because T.P. moved just prior to her first-grade year, she missed the first weeks of school. T.P. continued to have difficulties, and school authorities determined that she should repeat the first grade in 2009-10.

Mother is aware of T.P.'s difficulties, did not object to T.P.'s repeating the first grade, and requested testing to evaluate T.P.[4] Apparently, however, school officials deemed T.P. too young to test for learning disabilities. As of the April 21, 2009 hearing, *729 T.P. was receiving tutoring three days a week during the school day. Mother requested that T.P. see a behavioral counselor, whom T.P. began seeing once a week.

On September 10, 2008, Caretakers filed an emergency petition to intervene in Mother's paternity action against Father, in which they sought temporary and permanent modification of custody of T.P. on the grounds that there had been a substantial change in circumstances. According to Caretakers, they were T.P.'s de facto custodians in terms of her financial and physical needs since June 17, 2004; that Mother had been in and out of jail, jeopardizing T.P.'s mental and physical well-being; that Mother continued to use illegal drugs and exposed T.P. to sex and multiple persons in her home; and that Mother's transience and poor housing conditions, as well as her unemployment, rendered her incapable of supporting T.P. without their assistance.

The trial court held hearings on the petition on February 12, 2009 and April 21, 2009. At the hearings, Domestic Relations Counseling Bureau ("DRCB") social worker Robin Leffler-Pannell recommended that Caretakers and Mother share joint custody of T.P. with Caretakers having primary physical custody. Leffler-Pannell did not dispute that this recommendation was based partly upon Mother's inadequate housing, and that this housing had since improved. By the time of the hearing, Mother's housing had adequate electricity, running water, and standard appliances such as a refrigerator and stove. Leffler-Pannell additionally agreed that Mother had made improved efforts regarding T.P.'s education, and further, that a medical examination of T.P. had revealed no "red flags" suggesting T.P. suffered from medical problems. In addition, Mother admitted drug use in the summer of 2008 but denied having taken drugs for months prior to February 2009. Mother and her live-in boyfriend, D.B., tested negative for drugs in November 2008. As of the April 21, 2009 hearing, Mother denied any additional drug use.

Guardian ad Litem Elizabeth Polleys similarly recommended that Caretakers have physical custody of T.P. during the week, with Mother having custody one day per week and every other weekend.[5] Polleys based this recommendation largely upon T.P.'s educational difficulties, which she believed Caretakers were better able to address. According to Polleys, Caretakers have investigated the possibilities for T.P. to receive additional tutoring, including summer tutoring. In addition, Polleys was concerned about the safety of Mother's neighborhood. Mother's boyfriend D.B. was apparently stabbed approximately three blocks from Mother's home. Polleys indicated, however, that Mother had begun escorting T.P. to and from school every day to ensure her safety.

Caretakers believed that Mother stopped permitting them to spend time with T.P. after they filed the instant petition. Mother claimed she was not opposed to T.P.'s continuing to spend time with Caretakers.

As of the April 21, 2009 hearing, Mother was unemployed after having been briefly employed at a nearby store and in a temporary job.[6] Mother relied upon D.B., *730

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Cite This Page — Counsel Stack

Bluebook (online)
920 N.E.2d 726, 2010 WL 334532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-paternity-of-tp-indctapp-2010.