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In re Termination of the Parent-Child Relationship of R.A.

Court of Appeals of Indiana

October 22, 2014

IN THE MATTER OF THE TERMINATION OF THE PARENT-CHILD RELATIONSHIP OF: R.A. (Minor Child) AND S.W. (Father), Appellant-Respondent,
v.
THE INDIANA DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner

APPEAL FROM THE JOHNSON CIRCUIT COURT. The Honorable K. Mark Loyd, Judge. The Honorable Marla K. Clark, Magistrate. Cause No. 41C01-1308-JT-00025.

ATTORNEY FOR APPELLANT: MICHAEL J. KYLE, Baldwin Adams & Kamish, Franklin, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, ROBERT J. HENKE, CHRISTINE REDELMAN, Deputy Attorneys General, Indianapolis, Indiana.

VAIDIK, Chief Judge. MAY, J. concurs. FRIEDLANDER, J. dissents with separate opinion.

OPINION

Page 314

VAIDIK, Chief Judge

Case Summary

S.W. (" Father" ) learned that he was R.A.'s father while incarcerated awaiting trial on a number of criminal charges. R.A. had previously been adjudicated a child in need of services (CHINS), and Father was ordered to participate in a variety of services upon his release. Six months later, however--while Father was still detained pending trial--a petition was filed to terminate his parental rights. At the time of the termination hearings, Father remained in pretrial detention, and his availability to parent R.A. in the future was uncertain. However, Father's sister was available to care for R.A. and had already begun visiting with R.A. The trial court ultimately terminated Father's parental rights, and he appeals.

We conclude that a number of the trial court's findings are not supported by the evidence, and setting those findings aside, we conclude that there is insufficient evidence to support the trial court's decision to terminate the parent-child relationship. We therefore reverse.

Facts and Procedural History

B.A. (" Mother" ) gave birth to a son, R.A., in October 2011.[1] Mother lacked

Page 315

appropriate housing, and in January 2012 the Johnson County Department of Child Services (JCDCS) removed R.A. from Mother's care and filed a petition alleging that he was a CHINS. The trial court adjudicated R.A. a CHINS a short time later. At some point in her dealings with JCDCS, Mother identified Father as R.A.'s biological father, which was confirmed by DNA testing in October 2012.

Father, meanwhile, was incarcerated in the Johnson County Jail awaiting trial on several criminal charges, including sexual misconduct with a minor, theft, and possession of paraphernalia.[2] He received a letter informing him that he was R.A.'s father in December 2012. One month later, Father admitted that R.A. was a CHINS based on R.A.'s previous CHINS adjudication and his inability to parent R.A. due to his incarceration. Appellant's App. p. 15. Father agreed to participate in a number of services upon his release from incarceration. Id. at 16.

Six months later, however, JCDCS filed a petition to terminate Mother's and Father's parental rights. The trial court held two hearings on the petition in September and November 2013.

The majority of the evidence presented at the termination hearings pertained to Mother, as only two of the individuals involved in the case had ever met or spoken to Father. Family Case Manager Elizabeth Shertzer (FCM Shertzer) told the court that she met with Father in jail and he provided a list of relatives who might be willing to care for R.A. Tr. p. 64. FCM Shertzer also discussed services with Father:

[W]e could offer him Engaging Fathers, which is indicated in the [paternity] letter, as well. Uh, [Father] declined participation in Engaging Fathers. We kind of also talked about that if he did participate in anything in the jail, uh such as, like AA, or any of those services that are provided by the jail . . . we could potentially, uh, see if that counted towards his disposition, dispositional goals once they were set up. So at that point, he didn't have dispositional goals.

Id. at 66. FCM Shertzer admitted, however, that she had " no knowledge of what [Father's] ability to parent would be." Id. at 70. She also testified that to her knowledge, Father " did not know that he was a parent prior to this case, and [he] had no involvement with [R.A.]" as a result.[3] Id. Family Case Manager Ashley Peterson (FCM Peterson) described a meeting with Father in which he articulated a plan for caring for R.A. post-incarceration:

FCM Peterson: [I]n April of 2013 he said that if he was released he would find a place and get the things that [R.A.] needed, like bottles and baby clothes.
Counsel: How old was [R.A.] at the time?
FCM Peterson: He was about one and a half.
Counsel: Okay, were bottle[s] and baby clothes necessary for [R.A.'s] care at the time?
FCM Peterson: Yes.

Page 316

Counsel: Did he express a knowledge as to [R.A.'s] development[al] needs?
FCM Peterson: No.

Id. at 84-85.

Like FCM Shertzer, FCM Peterson testified that she had no knowledge of " what kind of parent [Father] would be because he ha[d] been incarcerated" throughout the CHINS and termination proceedings, but she said that the Fatherhood Engagement program was " a good place[] to start." Id. at 90-91.

A number of professionals testified about their interactions with Mother, and they recommended terminating her parental rights. Anne Kieffer, R.A.'s Court Appointed Special Advocate (CASA), recommended terminating both parents' rights because she did not believe that " [Mother] can be a good mother. And [Father], who I don't know[,] isn't going to be available for awhile . . . ." Id. at 103. CASA Kieffer admitted that she had never spoken with Father. Id. at 100.

Father appeared at both hearings and testified that he would be willing to consent to his sister adopting R.A., but he otherwise opposed termination of his parental rights. Id. at 129. At the time of the termination hearings, Father's sister and her husband had filed an adoption petition and begun visiting with R.A. Id. at 127.

In closing, Father's counsel argued that JCDCS had acted prematurely in filing its termination petition:

This is a man who right now [is] cloaked in a presumption of innocence. He is not sitting in jail right now because of any current convictions, he has pending charges. And it is really easy to think that well[,] he could be going away for a long time but we just don't know right now and I think [JC]DCS's petition is a little premature because we don't know what is going to happen with [Father] right now. We just don't. He has a hearing in a couple of weeks, it could resolve this case. He could be out in two weeks, we don't know. The [S]tate could decide not to pursue the charges or he could be acquitted at trial. He is cloaked in that presumption of innocence, yet in this s[e]tting it is almost guilty until proven innocent. There has been no evidence whatsoever about his ability to parent or not to parent. He didn't have a burden to show that he could parent. [JC]DCS had to show by clear ...

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