934 N.E.2d 1127 (Ind. 2010), 62S01-1003-JV-148, In re I.A.

Docket Nº:62S01-1003-JV-148.
Citation:934 N.E.2d 1127
Opinion Judge:RUCKER, Justice.
Party Name:In the Matter of the Involuntary Termination of Parent-Child Relationship of I.A. v. Indiana Department of Child Services, Appellee (Petitioner below). J.H. (Father), Appellant (Respondent below),
Attorney:Mark Small, Indianapolis, IN, Attorney for Appellant. Robert J. Henke, Rachael Armstrong, Dana J. Phillips, Indiana Department of Child Services, Indianapolis, IN, Attorneys for Appellee.
Judge Panel:SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur. BOEHM, J., dissents with separate opinion. BOEHM, Justice, dissenting.
Case Date:October 05, 2010
Court:Supreme Court of Indiana
 
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934 N.E.2d 1127 (Ind. 2010)

In the Matter of the Involuntary Termination of Parent-Child Relationship of I.A.

J.H. (Father), Appellant (Respondent below),

v.

Indiana Department of Child Services, Appellee (Petitioner below).

No. 62S01-1003-JV-148.

Supreme Court of Indiana.

October 5, 2010

Page 1128

[Copyrighted Material Omitted]

Page 1129

Mark Small, Indianapolis, IN, Attorney for Appellant.

Robert J. Henke, Rachael Armstrong, Dana J. Phillips, Indiana Department of Child Services, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 62A01-0905-JV-252

RUCKER, Justice.

Case Summary

The trial court terminated Father's parental rights on the grounds that (1) the reason for his child's placement outside of Father's home will not be remedied; and (2) the continuation of the parent-child relationship poses a threat to the well-being of the child. Concluding that the evidence does not clearly and convincingly demonstrate that Father's parental rights should be terminated, we reverse the judgment of the trial court.

Facts and Procedural History

On February 18, 2006, a son, I.A. (sometimes referred to as " Child" ) was born out

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of wedlock to D.A. (" Mother" ) and J.H. (" Father" ). Child was one of Mother's seven children then ranging in age from birth to fourteen years old. Sometime within a few months following Child's birth, Mother told Father that I.A. was his son.

The Perry County Department of Child Services (" DCS" ) became involved with Mother and her children in February 2006 due to allegations of lack of supervision, educational and medical neglect, and Mother's drug use. On December 21, 2006, DCS received a report that unknown to Mother, two of her younger children were discovered by police playing in the parking lot of a motel unsupervised and two of her older children had travelled to a nearby town alone. The children were thus removed from Mother's care based on a lack of supervision and on January 4, 2007, DCS filed individual petitions alleging each child was a child in need of services (" CHINS" ). With respect to I.A., noting " [a]ddress [u]nknown," DCS named Father as a party to the petition. Ex. Tr. (Exhibit B).1 After a hearing held on March 30, 2007, at which both Mother and Father appeared pro se, the trial court entered an order granting the CHINS petition. The order included a case plan for reunification that provided in relevant part, " [t]he mother shall participate in the Perry County Department of Child Services' CHINS Drug Court.... The mother shall participate in supervised visits with the child. The mother shall continue to participate with parent-aide services. The mother shall obtain and maintain employment. The mother shall complete a parenting skills assessment and follow any and all recommendations of the assessment. The mother shall attend and participate in individual counseling to address issues of domestic violence, neglect and abuse, and any other areas that are deemed appropriate and necessary." Ex. Tr. (Exhibit J). With respect to Father, the trial court's order declared, " [t]he father waives his right to be represented by counsel. The father admits that the child is a child in need of services." Id. The trial court's order was entered April 12, 2007.

After a review hearing held on July 12, 2007, at which both Mother and Father appeared, the trial court entered an order finding among other things, " mother and child shall continue to participate in the case plan." Ex. Tr. (Exhibit K). No findings were entered with respect to Father. Father later testified that during the summer of 2007, he initially was allowed limited visitation with Child, however visitation was discontinued in September 2007, apparently because paternity had not yet been established. On February 12, 2008, DCS filed a petition to terminate both Mother's and Father's parental rights. In May 2008 Father sought paternity testing and filed a petition to establish paternity of Child which the trial court granted on September 30, 2008. From July 11, 2008 through January 29, 2009, Father was allowed supervised visitation with Child.

At a review hearing held November 25, 2008, at which Father appeared but Mother did not, the trial court entered several findings including, " Mother has not complied with the case plan. Father has complied with the case plan. 2 Mother has not

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enhanced her ability to fulfill parental obligations. Father has enhanced his ability to fulfill parental obligations. Mother does not visit regularly with the child. Father visits regularly with the child. Mother is not cooperating with the DCS. Father is cooperating with the DCS." Ex. Tr. (Exhibit R).

After a hearing conducted approximately three months later, on February 17, 2009, the trial court entered an order granting DCS' petitions to terminate the parental rights of Father with respect to I.A. and the parental rights of Mother regarding six of her seven children.3 The order involving I.A. provided in pertinent part:

a. The child has been removed from his parents for at least six (6) months under a dispositional decree of the Perry Circuit Court, dated April 12, 2007

b. The child has been removed from his parents and has been under the supervision of a county Office of Family and Children for at least fifteen (15) of the last twenty-two (22) months.

c. There is a reasonable probability that:

1. The conditions that resulted in the child's removal or the reasons for the placement outside the parent's home will not be remedied in that:

i. The Father, [J.H.], has not bonded with the child after six (6) months of Parent-Aid[e] services.

ii. The Father, [J.H.], needs lots of direction regarding simple tasks relating to the care of the child.

iii. Evidence presented from the Parent-Aid[e] caseworker that there has been no progress in the relationship between the father and the child in six (6) months of services.

iv. The Mother, [D.A.], has not visited the child since July, 2008.

v. The Mother, [D.A.], has continued, repeated drug use.

vi. The Mother, [D.A.], has demonstrated a lack of supervision of the children.

vii. The Mother, [D.A.], was terminated from the Perry County CHINS Drug Court.

viii. The Mother, [D.A.], left Stepping Stones Drug Recovery Program before completion of the program.

ix. The Mother, [D.A.], failed to cooperate with Parent-Aid[e].

x. The Mother, [D.A.], failed to cooperate with her Department of Child Services caseworker.

xi. The Mother, [D.A.], has failed to cooperate with any services offered to her by the Perry County Department of Child Services....

2. Continuation of the parent-child relationship poses a threat to the well-being of the child in that the mother, [D.A.], continues to abuse illegal substances, lacks supervision of the children and has not remedied any of the causes for removal in the underlying CHINS proceeding. The father, [J.H.], has not bonded with the child.

d. Termination is in the best interest of the child in that the child is in a stable environment. The child needs permanency.

Appellant's App. at 10-11. Father appealed, and in a memorandum decision the Court of Appeals affirmed. See Page 1132

J.H. v. Ind. Dep't of Child Servs., No. 62A01- 0905-JV-252, 2009 WL 4723182 (Ind.Ct.App. Dec. 10, 2009). Having previously granted transfer, we now reverse the judgment of the trial court.4 Standard of Review

When reviewing the termination of parental rights, we do not reweigh the evidence or judge witness credibility. Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 147 (Ind.2005). We consider only the evidence and reasonable...

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