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08/31/87 MATTER AARON RAY DANFORTH AND DELOY RAY

Filed: August 31, 1987.

IN THE MATTER OF AARON RAY DANFORTH AND DELOY RAY DANFORTH CHILDREN UNDER THE AGE OF EIGHTEEN YEARS; AARON DANFORTH, APPELLANT (RESPONDENT BELOW)
v.
MADISON COUNTY DEPARTMENT OF PUBLIC WELFARE APPELLEE (PETITIONER BELOW)



APPEAL FROM THE MADISON SUPERIOR COURT, THE HONORABLE JACK L. BRINKMAN, JUDGE, CAUSE NO. JT-85-13.

Shields, P.j. Hoffman, J., concurs. Buchanan, J., Dissents, with separate opinion.

Author: Shields

SHIELDS, P.J.

Appellant Aaron Ray Danforth (Danforth) appeals the trial court judgment terminating his parental rights over his two minor children, Aaron Ray Danforth, age 7, and Deloy Ray Danforth, age 6.

We reverse.

In August 1980, Danforth was arrested for armed robbery. He was subsequently convicted and incarcerated in the Indiana State Reformatory for two armed robberies and a burglary. From the time of Danforth's arrest and until May 1981, the children remained with their mother, Anna Danforth Fuller (Fuller), who was staying with her mother, Carolyn Parkhurst. When Fuller was arrested and incarcerated for burglary in May 1981,[Footnote 1] the Madison County Department of Public Welfare (Department) removed the Danforth children from the Parkhurst home. The children were placed in foster care and adjudicated to be children in need of services.[Footnote 2]

The children were brought to the Indiana State Reformatory to visit Danforth by Fuller, a caseworker, and others. Danforth visited with the children every four to six weeks until August 15, 1984. After that date, Danforth wrote to the caseworker to arrange for visitation, without success, because the Department was anticipating the eventual termination of his parental rights. Danforth then started sending letters and birthday cards to his children in care of the caseworker.

The Department filed a Petition to Terminate Parental Rights of Danforth and Fuller on February 22, 1985. A fact-finding hearing on the petition was held on December 10, 1985 and was concluded on January 22, 1986, five days after Danforth was released from the reformatory. On March 6, 1986, the trial court entered judgment terminating the parental rights of Danforth and Fuller.

Danforth appeals the trial court's decision and presents four issues for our review.[Footnote 3] One issue is dispositive of this appeal:

Was there clear and convincing evidence to support the trial court's finding there was a reasonable probability the conditions that resulted in the removal of the children would not be remedied?

In determining whether the evidence is sufficient to support the trial court's judgment, we may not reweigh the evidence nor Judge the credibility of the witnesses; we may consider only the evidence most favorable to the judgment. J.K.C. v. Fountain County Department of Public Welfare (1984), Ind. App., 470 N.E.2d 88; Matter of Lozier (1983), Ind. App., 453 N.E.2d 345.

To terminate parental rights, Ind. Code Ann. § 31-6-5-4 (Burns Supp. 1986) requires the Department of Public Welfare to present clear and convincing evidence:

(1) the child has been removed from the parent for at least six (6) months under a Dispositional decree;

(2) there is a reasonable probability that the conditions that resulted in the child's ...


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