Matter of K.T.

• Court: Indiana Appellate Court
• Writing for the Court: Bailey, Judge.
• Citation: Matter of K.T., 137 N.E.3d 317 (Ind. App. 2019)
• Decision Date: 19 December 2019
• Docket Number: Court of Appeals Case No. 19A-JT-1528
• Parties: In the MATTER OF the Involuntary Termination of the Parent-Child Relationship of: K.T. (Minor Child) D.T. (Father), Appellant-Respondent, v. The Indiana Department of Child Services, Appellee-Petitioner.

137 N.E.3d 317

In the MATTER OF the Involuntary Termination of the Parent-Child Relationship of: K.T. (Minor Child)

D.T. (Father), Appellant-Respondent,

v.The Indiana Department of Child Services, Appellee-Petitioner.

Court of Appeals Case No. 19A-JT-1528

Court of Appeals of Indiana.

Filed December 19, 2019

Attorney for Appellant: Linda L. Harris, Kentland, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Katherine A. Cornelius, Deputy Attorney General, Indianapolis, Indiana

Bailey, Judge.

Case Summary

[1] D.T. ("Father") appeals the trial court judgment terminating his parental rights to K.T. ("Child"), born January 8, 2015. On appeal, Father challenges the sufficiency of the evidence to support the trial court's conclusions that he was unlikely to remedy the reasons for Child's removal from the home and he was a threat to the well-being of Child.

[2] We reverse.

Facts and Procedural History

[3] H.B. ("Mother")¹ and Father, biological parents of Child, were never married but Father established his paternity of Child. Child lived with Mother, who was the sole custodian. The Indiana Department of Child Services ("DCS") received information that Child had sustained various injuries—including black eyes, multiple bruises, and a second-degree burn—while in Mother's care over the period of December 23, 2016, to January 13, 2017. In a report dated December 29, 2016, DCS found that the allegations of neglect by Mother were substantiated, although the allegations of physical abuse were not. DCS found the allegations of neglect and/or physical abuse by Father were unsubstantiated. The DCS report also noted that Mother was Child's "sole caregiver[,]" and Child had not been in Father's care during the time period Child sustained injuries. Ex. at 101. DCS removed Child from Mother on January 13, 2017, and filed a petition alleging Child was a Child in Need of Services ("CHINS").

[4] A parenting assessment of Father, completed on March 14, 2017, recommended his participation in the Father's Engagement program so that he could "learn about his legal rights as a parent as well as his legal options for gaining regular parenting time or pursuing joint or sole physical custody should [Mother] reunify with [Child] at the end of this case and begin denying visitation again." Id. at 6. The assessment also recommended individual therapy to help Father "further address his anger," although it noted that his "anger is understandable" given that this was the second CHINS case initiated while Child was in Mother's care.² Id. The assessment recommended visitation with Child to "be moved to unsupervised if no issues are seen in [Father's] parenting." Id. at 7.

[5] Child was adjudicated a CHINS on April 11, 2017. Father appeared at the CHINS detention hearing, initial hearing, and fact-finding hearing. The CHINS court entered a dispositional order on May 9, 2017, in which it found that "participation by the parent, guardian, or custodian in the plan for the child is necessary to: achieve reunification of the family." Id. at 113. The court ordered that Child would remain in out-of-home placement and both parents must participate in specified services.

[6] In an order dated February 28, 2018, the trial court changed Child's permanency plan from reunification to termination of parental rights ("TPR") and adoption. The order noted that Father "has partially complied with the child's case plan. The father has recently beg[u]n participating in services." Ex. at 120. On March 13, 2018, DCS filed a petition for involuntary termination of Mother's and Father's parental rights to Child. Mother filed a voluntary relinquishment of her parental rights, and the court held the TPR fact-finding hearing on August 13, 2018.

[7] At the fact-finding hearing, various service providers and DCS workers testified that Father had failed to fully comply with services. They also testified that he had initially missed approximately four months of visitation with Child—from September through December of 2017—in order to attend the Little League baseball games of his son, B.T., over whom he shared custody with his son's mother. However, since January of 2018, he had attended approximately eighty percent of the visitations. The service providers and DCS workers also noted Father had some issues with anger and alcohol use. DCS family case manager ("FCM") Erin Smith testified that she believed termination of Father's parental rights was in Child's best interests. Donna Besse ("Besse"), the Family Focus caseworker who supervised visitations, and Amy Collier, Child's therapist, testified that Father and Child had failed to "bond." Tr. at 59, 69-70. Besse's visitation reports, admitted as Exhibit 6, also reported "no bond" between Child and Father. Ex. at 59. Those reports also showed that, during the last three months of visitation, Child sat on Father's lap, played with Father, hugged Father, and tickled Father. During visits in April of 2018, Child called Father "Dad" and brought Father things she had made for him. Id. at 67-70. Besse's visitation reports noted that Father kissed and hugged Child, told Child he loved her, played with Child, and consistently tried to interact with Child. Nevertheless, in her most recent report, Besse characterized the visits as "destructive" because Father "takes on a role of friend during visits, ... sets no limits and/or guidance, ... is unaware of appropriate expectations for [Child], ... comes and goes [throughout] the visit for various reasons, ... put[s] his needs before [Child's], ... does not provide a snack for her[,] and shows her no empathy." Id. at 54.

[8] The Court Appointed Special Advocate ("CASA"), Renee Conley, who had attended some of the supervised visits with Child, testified that she did not believe termination of Father's parental rights was appropriate because, although visits with Child had "progressed well," the visitation supervisor's interference with Father's parenting of Child and her "personality conflict" with Father had hindered further progress. Tr. at 109, 113. The CASA testified that it is "important to [Child] to have the ability to get to know her dad without interference" from the visitation supervisor. Id. at 114.

[9] Father testified that he owned his own home and had joint custody of his son. He stated that he missed some services appointments and visitations due to his work schedule and because he was responsible for taking his son to his Little League baseball games. Father stated he had conflicts with the supervisor of the visitations because he felt that she interfered too much with his parenting of Child. Father testified that he had tried, unsuccessfully, to reschedule some of the missed appointments and visitations. Father testified he had worked full-time for the last nine years and had to travel often in his job. He testified he had recently increased his visits with Child because he had changed jobs so that he "could try to win custody" of Child. Id. at 98.

[10] On June 3, 2019,³ the trial court granted the TPR petition and found in relevant part as follows:

* * *

The minor child was residing with Mother as the sole provider of custody before being detained by CPS.^[4] CPS received information that minor child was reported to have sustained injuries including two severe black eyes, multiple bruises, a second degree burn to her hand, and multiple scratches to her face and lower back. These injuries occurred while in Mother's care at various intervals over a period of December 23, 2016[,] to January 13, 2017. In investigating the reports, the injuries were possibly consistent with Mother's story, but Mother failed to report the new injury to the caseworker and delayed getting medical treatment for the Minor Child and there were concerns of physical abuse. The Minor Child was detained by CPS on January 13, 2017[,] and the Minor Child was adjudicated a CHINS on April 11, 2017.

The Court entered a Dispositional Decree on May 9, 2017[,] that required Mother and Father to engage in services, and the Minor Child is still under this Dispositional Decree. Father was to attend and complete all parenting assessments and the recommendations of these assessments, visitation with Minor Child, Father Engagement, and individual therapy and co-parenting classes. ...

Father was ordered to complete Father Engagement with Family Focus. During the period of February 2017 [to] August 2017, Father only met with the Lifeline Caseworker, Nancy Koedyker, four times for the 13[-]week program. She was largely unsuccessful in contacting him and arranging visits as Father would not be available and there were several no-shows. Father consistently wished to get custody of Minor Child but expressed distrust of CPS and that he did not want the services required by CPS. Father met with caseworker, [Brian Gabel],^[5] a total of 9 times for this program. However, Father only completed about six weeks of the program as the caseworker was engaged in reviewing prior materials due to Father's no-show absences and the period of time since they went over the materials. The program began in February 2018 and should have been completed in May 2018. Father contacted the caseworker on May 22, 2018[,] and stated that he would not be continuing the Father's Engagement sessions until the Little League baseball season concluded in June 2018, as he did not want to miss any of his son's Little League Games. The Caseworker attempted to contact Father at the end of June 2018 but was unsuccessful and Father never restarted the program.

Father met with a social worker from Family Focus and his compliance was inconsistent. Father attended the scheduled sessions sporadically until the months of July and August of 2018 whe[n] attendance was more consistent. Father failed to attend the sessions because of his work schedule and desire to attend baseball games for his son and continued to express anger and frustration over the

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