Matter of CB

616 N.E.2d 763, 1993 WL 228980
CourtIndiana Court of Appeals
DecidedJune 30, 1993
Docket49A05-9112-JV-417
StatusPublished
Cited by3 cases

This text of 616 N.E.2d 763 (Matter of CB) 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
Matter of CB, 616 N.E.2d 763, 1993 WL 228980 (Ind. Ct. App. 1993).

Opinion

616 N.E.2d 763 (1993)

In re the MATTER OF C.B., Child in Need of Services.
Marion County Department of Public Welfare, Appellant-Petitioner,
v.
Florida Beard, Appellee-Respondent.

No. 49A05-9112-JV-417.

Court of Appeals of Indiana, Fifth District.

June 30, 1993.

*764 Mary Jane Norman, Marion County Dept. of Public Welfare, Indianapolis, for appellant-petitioner.

Brant L. Ping, Indianapolis Legal Aid Soc., Indianapolis, for appellee-respondent.

BARTEAU, Judge.

The Marion County Department of Public Welfare ("MCDPW") appeals an order by the Marion County Superior Court, Juvenile *765 Division ("Marion County Court"), requiring the MCDPW to pay Mother's expenses to secure the return of her child, C.B., from Tennessee to Indianapolis. C.B. was placed with her aunt and uncle in Tennessee pursuant to the Interstate Compact for the Placement of Children. Pursuant to the placement, but after a three-year delay, C.B.'s uncle sought legal guardianship over C.B. in Tennessee. Before the Tennessee court could rule on guardianship, the Marion County Court ordered C.B. to be returned to Indianapolis. When the MCDPW refused to take action to secure her return, the Marion County Court authorized Mother to take any necessary legal action and ordered MCDPW to pay Mother's expenses for same. On appeal, the MCDPW challenges the Marion County Court's authority to make the order requiring it to pay Mother's legal expenses. MCDPW also appeals the Marion County Court's order requiring it to praecipe for parts of the record requested by Mother at its expense.

We reverse in part and affirm in part.

FACTS

C.B., born in January, 1982, and her sister, L.B., born in March, 1983, were found to be Children in Need of Services (CHINS) in November, 1983. On November 14, 1983, the Marion County Court placed the children in the custody of the MCDPW for placement in a foster home, the Guardian Home or with a relative. They were both placed in a foster home, where Mother visited them regularly. After Mother completed the rehabilitative services offered by the MCDPW, the children were returned to Mother's care in April, 1984. Shortly thereafter, L.B. died of a fractured skull. Mother eventually pleaded guilty to charges of involuntary manslaughter with regard to L.B.'s death. In September, 1985, at the recommendation of the MCDPW, the Marion County Court ordered that the MCDPW retain custody of C.B., but that she be placed with her aunt and uncle, Eva and Ellis Jones, in Memphis, Tennessee. The Joneses were to seek legal guardianship of C.B. in Tennessee. At this time, the Marion County Court advised Mother that she would not be receiving additional services from the MCDPW. Mother, who was represented by counsel, agreed to the placement of C.B. with the Joneses and agreed to cooperate in their being appointed C.B.'s guardians.

Eva Jones died in 1986; however, the MCDPW recommended that C.B. be permitted to stay with Ellis Jones and his new wife. Mother did not object, and the Marion County Court approved the recommendation. Thereafter, the Marion County Court held placement review hearings every six months. On September 17, 1986, the Marion County Court found that Mother had completed her probation and permitted her visits with C.B. No other modifications of the original order were made from March, 1987, to March 1988. The progress reports filed with the Marion County Court by the MCDPW before each of the review hearings indicated that the Joneses had petitioned the Tennessee Court for guardianship. After a hearing on September 18, 1988, the Marion County Court noted that Mother had requested a different case plan if guardianship was not established soon. The Marion County Court ordered that C.B. be present at the next hearing on December 28, 1988, if guardianship was not established by that date. There is no indication that the Marion County Court sent notice of the hearing to the Joneses, nor is there any evidence that they received such notice.

In its progress reports filed with the Marion County Court before each review hearing from September, 1986, to September, 1988, the MCDPW consistently recommended that C.B. remain with the Joneses. However, in a report dated December 20, 1988, MCDPW recommended that C.B. be placed in foster care or relative placement in Indianapolis. MCDPW also recommended that C.B. be reunited with Mother, pending Mother's successful completion of further evaluation. According to MCDPW, Ellis had not taken steps to obtain legal guardianship at this time and the Tennessee Department of Human Services (TDHS) was going to end its involvement in the case. The Marion County Court agreed *766 with MCDPW and ordered C.B. to be returned to Indianapolis. According to the Marion County Court, uprooting the child from the Joneses' home where she had lived since 1985 was necessary to determine the child's best interest. Another hearing was set for January 25, 1989. Again, there is no indication that the Joneses were sent or that they received notice of this order.

By letter dated January 13, 1989, MCDPW received notice from TDHS that the Joneses had petitioned for guardianship over C.B. on December 19, 1988. A hearing on the petition was scheduled to be held in Memphis on February 8, 1989. In light of this information, the Marion County Court ordered that C.B. not be transferred to Marion County, pending the outcome of the Memphis proceedings. At the February 8 hearing in Memphis, the Tennessee court granted temporary guardianship to the Joneses, appointed a guardian ad litem for C.B., held judgment on permanent guardianship under advisement and continued the hearing until April 5, 1989, to give the attorneys and C.B.'s guardian ad litem opportunity to submit briefs on the question of jurisdiction under the Uniform Child Custody Jurisdiction Act. The TDHS caseworker reported that C.B. would not be returned to Indianapolis, if at all, until after the hearing in April.

On February 8, 1989, the Marion County Court again ordered C.B. to be returned to Indianapolis. The order indicated that a copy of this order was to be sent to the Joneses as well as to the Tennessee Court. However, there is no indication that the Joneses received a copy of this order. The Tennessee Court was not willing to release C.B. until a hearing could be held on the question of jurisdiction. On June 6, 1989, the Tennessee Court awarded the Joneses guardianship of C.B.

The matter did not end there. After a hearing on June 21, 1989, the Marion County Court's order stated "MCDPW will be pursuing action through federal court to have the child returned to this court's jurisdiction." (R. 93). No such action was taken and on September 21, 1989, Mother petitioned the Marion County Court for an order "mandating the Marion County Department of Public Welfare to do all things necessary to fulfill its duties pursuant to the Court's previous order, and the Juvenile Code and Interstate Compact." (R. 96). The Marion County Court granted the petition and ordered the MCDPW to file a federal habeas corpus petition. Although the MCDPW filed a Notice of Intent to File a Writ of Habeas Corpus in federal court on November 8, 1989, no further action was taken. On October 2, 1991, the Marion County Court ordered MCDPW to continue its efforts to bring C.B. back to Indianapolis.

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810 N.E.2d 1088 (Indiana Court of Appeals, 2004)
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810 N.E.2d 1088 (Indiana Court of Appeals, 2004)

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Bluebook (online)
616 N.E.2d 763, 1993 WL 228980, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-cb-indctapp-1993.