Baker, J.
A two-year-old child’s mother was murdered by the child’s father figure. The child’s actual father lives out of state and is a virtual stranger who has had very little contact with Mother. But that fact, alone, is insufficient to support a finding that the child is a child in need of services (CHINS). Likewise, the fact that the Department of Child Services (DCS) was unable to gather sufficient information about the father’s fitness as a parent does not meet DCS’s burden to prove him unfit. We also find that the statutory framework related to placement of children in other states does not apply when the contemplated placement is with a biological parent. Consequently, we reverse the juvenile court’s order finding this child to be a CHINS.
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Father argues that the ICPC [Interstate Compact on the Placement of Children] does not apply to placement of a child with an out-of-state biological parent. We agree. Article III of the ICPC sets forth the conditions for placement out of state:
(a) A sending agency may not send, bring, or cause to be sent or brought into any other party state a child for placement in foster care or as a preliminary to a possible adoption unless the sending agency complies with each requirement under article III and with the receiving state’s laws governing the placement of children.
(b) Before sending, bringing, or causing any child to be sent or brought into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice of the intention to send, bring, or place the child in the receiving state. . . .
I.C. 31-28-4-1 art. III (emphases added). Thus, the plain language of the statute makes clear that the ICPC applies only to the placement of a child in foster care or as a preliminary to a possible adoption. [Footnote omitted.]
DCS contends that “the answer to the question of whether the ICPC applies is circumstantial in nature.” Appellee’s Br. p. 18. To the contrary, the answer to that question is statutory in nature. And the statute quite plainly provides that it applies only to placement in foster care or a preadoptive home. A biological parent is neither of these. Accordingly, we hold that the ICPC does not apply to placement with an out-of-state parent. E.g., McComb v. Wambaugh, 934 F.2d 474, 481-82 (3rd Cir. 1991) (holding that the ICPC applies only to “substitutes for parental care” and not to placement with a parent, emphasizing the importance of avoiding “entanglement with the natural rights of families” and highlighting “the limited circumstances that justify a state’s interference with family life”); Ark. Dep’t of Human Servs. v. Huff, 65 S.W.3d 880, 563-64 (Ark. 2002) (holding that the ICPC does not apply to placement with a parent). Therefore, to the extent that the juvenile court’s CHINS determination in this case rested on the fact that the ICPC process had not yet been completed with respect to Father, we discount that basis of the adjudication.
II. CHINS Adjudication
Father next argues that there is insufficient evidence supporting the juvenile court’s determination that Child is a CHINS….
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It is undeniable that Child has undergone significant trauma in the past year. It could be argued that her “mental condition is seriously impaired or seriously endangered” as a result of that trauma. I.C. § 31-34-1-1(1). But DCS has certainly not proved that her mental and emotional condition is the result of Father’s “inability, refusal, or neglect . . . to supply the child with necessary food, clothing, shelter, medical care, education, or supervision[.]” Id. To the contrary, Father is prepared to supply all of those necessities immediately.
It is undeniable that Father has not been a significant presence in Child’s life. He should not be lauded as an example of excellent parenting. It is likewise undeniable that he and Child do not really know one another as a result of his parental absence. Moreover, given the trauma already experienced by Child, to remove her from the caregiver she knows and loves and to place her with an unknown caregiver will be an additional trauma. But these facts, alone, do not lead to a conclusion that Father’s “actions or inactions have seriously endangered the child[.]” S.D., 2 N.E.3d at 1287; see also Santosky v. Kramer, 455 U.S. 745, 753 (1982) (emphasizing that “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents”).
As Father is Child’s parent, there must be a presumption that he is a fit and capable parent, unless and until DCS proves otherwise by a preponderance of the evidence. DCS’s arguments that it did not have sufficient information to determine whether he was a fit and capable parent do not and cannot support a CHINS determination. It is DCS’s burden to prove by a preponderance of the evidence that Child would be seriously impaired or endangered in Father’s care.
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In the instant case, DCS has offered no evidence that Father’s residence or employment are in any way unstable. It has offered no evidence that Father is an unfit parent; it merely proved that he has been an absent one. Absent that evidence, DCS has failed to meet its burden.
We acknowledge that there is but a brief timeframe, dictated by statute, between the filing of a CHINS petition and a CHINS factfinding hearing. And we acknowledge the difficulty of gathering information and evidence about an out-of-state parent. But the simple reality is that DCS bears the burden of proof in CHINS cases, and it is up to DCS to gather the facts and the evidence to support its CHINS petition. In this case, it failed to do so. We can only conclude that there is insufficient evidence in the record supporting the juvenile court’s conclusion that Child is a CHINS. Therefore, we reverse.
The judgment of the juvenile court is reversed.
Riley, J., concurs, and Brown, J., dissents with opinion.
Brown, Judge, dissenting.
I respectfully dissent from the majority’s conclusion that the ICPC does not apply to an out-of-state placement with a natural parent in all circumstances. In Bester v. Lake Cnty. Office of Family & Children, the Indiana Supreme Court observed that whether the ICPC applies to the interstate reunification of children with natural parents is an open question and that some jurisdictions have concluded the ICPC applies under those circumstances and others have concluded it does not. 839 N.E.2d 143, 146 n.2 (Ind. 2005) (referring to cases holding the ICPC does apply and does not apply to reunification of children with natural parents). The majority here concludes that, based on its language, the ICPC does not apply to placements with out-of-state parents. Slip op. at 8-9. I do not agree that this is always the case based on the language of the ICPC.
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