In the Matter of the Termination of Parent Rights of: B.L.P. (Minor Child) and Br.L.P. (Father), Appellant-Respondent,
The Indiana Department of Child Services, Appellee-Petitioner
from the Allen Superior Court Trial Court Cause No.
02D08-1607-JT-179 The Honorable Charles F. Pratt, Judge, The
Honorable Sherry A. Hartzler, Magistrate Judge
Attorney for Appellant Donald J. Frew Fort Wayne, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Robert J. Henke Deputy Attorney General
Br.L.P. (Father) appeals the trial court's order
terminating his parent-child relationship with B.L.P.
(Child), arguing that there is insufficient evidence
supporting the termination order. In addition to reaffirming
our prior holding that the Interstate Compact on the
Placement of Children does not apply to out-of-state parents,
we find that the evidence is insufficient to support
termination. Therefore, we reverse and remand.
Child was born to C.V. (Mother) and Father on March 21,
2005. The parents were not married, and Child
lived with Mother for an unknown period of time after he was
born. At some point, Child began living with his maternal
grandmother (Grandmother) after both parents became
incarcerated. Grandmother intervened in the paternity action
and became Child's legal custodian in September 2007. In
2008, Father moved to Atlanta, Georgia, because he needed a
"change of scenery" and had family members who
lived in Georgia. Tr. p. 69-70. In May 2012, Father was
convicted for "selling and dealing in cocaine" in
Georgia, and he was incarcerated for that offense until May
2014. Id. at 70. As of May 2016, he was no longer on
probation or parole and had completed all requirements
related to his incarceration.
Child has significant behavioral issues and multiple mental
health diagnoses, and in October 2013, Child began acting
out. Grandmother was no longer able to be Child's
caregiver because of his behavioral issues as well as her own
physical and mental health and financial limitations.
In October 2013, the Department of Child Services (DCS) filed
a petition alleging Child to be a Child in Need of Services
(CHINS). The CHINS petition was based on Grandmother's
inability to be a caregiver for Child as well as Mother's
substance abuse and instability and Father's
then-incarceration. At that time, DCS removed Child from
Grandmother's care and custody and placed him in foster
On November 13, 2013, the trial court found Child to be a
CHINS. Mother and Grandmother were present at the hearing and
Father participated telephonically. Mother and Grandmother
admitted to the allegations in the petition. Father admitted
that he was incarcerated and, as a result, unable to care or
provide for Child at that time. That same day, the trial
court held a dispositional hearing, ordering Father to
participate in a "diagnostic evaluation within 30
days" of his release from incarceration and for him to
follow the recommendations of the evaluation; the trial court
also authorized supervised visitation with Child.
Appellant's App. Vol. II p. 49-50.
Sometime in 2014, after he was released from incarceration,
Father began having regular phone contact with Child. In
August 2015, Father and Child began having supervised Skype
calls. Luis Hernandez, who supervised those calls, testified
that Father participated in about 75% of the calls; the 25%
he missed were the result of technological problems. As time
went on, Father's rate of participation improved.
Hernandez believed that the interactions between Father and
Child were positive and stated that Child "looks forward
to speaking with his father." Tr. p. 19. Child's
behavior was always appropriate during and after that contact
with Father, and Hernandez had no concerns about Father and
Child being in each other's presence.
Indiana DCS does not have contracts in Georgia with service
providers. Consequently, while the Family Case Manager
recommended a provider to Father for the diagnostic
evaluation, Father was required to pay for the evaluation
himself. Father participated in the evaluation but he was
surprised to learn he had to come back again for a second
part. When he went back for the second part, "they told
me I need to come back for the third part, " eventually
telling him that it could include "seven or eight"
assessments. Id. at 160. Each time Father went to
the provider, he had to pay $300. He could not afford to
complete all portions of the assessment, and also began to
believe that the service provider was purposely delaying the
process so that he would have to spend more money. The
provider told Father that it would not release the portion of
the assessment that he had completed to DCS until Father
completed the entire assessment, though the Family Case
Manager testified that the provider informed her that Father
"did not come in and sign off so that we can um have
access to what he completed . . . ." Id. at
At some point in 2016, DCS requested that an evaluation of
Father's life and home be completed under the Interstate
Compact on the Placement of Children (ICPC). After completing
the evaluation, the evaluator did not recommend placement of
Child with Father based on two concerns: first, Father was
living in a duplex and there were signs of fire damage to the
apartment next door; and second, Father had recent criminal
On July 18, 2016, DCS filed a petition to terminate the
parent-child relationship between Child and his parents. The
termination hearing took place on December 8 and 16, 2016.
Father participated telephonically. At the time of the
hearing, Father had full-time employment as a carpenter. He
had maintained consistent employment since May 2013,
moving from a position as a laborer to a position as a
carpenter; Father was on a path "to management as a
safety carpenter[.]" Id. at 162. He had moved
from the duplex to a three-bedroom home, which he shared with
his girlfriend and her two sons. Father was realistic,
understanding that Child would not be placed with him
immediately, so he was also paying rent to a cousin who lived
in the area for a bedroom for Child, in case Child was
permitted to move to Georgia and be placed in relative care.
Because of financial constraints as well as his demanding
work schedule, Father has been unable to travel to Indiana to
see Child in person. Child's foster parents traveled to
the Georgia area twice since Father was released from
incarceration in 2014, and those two times are the only
occasions on which Father and Child have interacted in
Throughout the CHINS and termination cases, Father has been
cooperative and communicative with DCS. He participated
telephonically in conferences when asked to do so and
participated telephonically at all important hearings. At the
termination hearing, he acknowledged his serious criminal
history and admitted that he has "made some bad
decisions, " but maintained that "I have made a new
way for my life to live right since I've been out to work
six days a week . . . . I want to show my son . . . hard work
will get you where you need to get eventually . . . ."
Id. at 161. Father insisted that "the lightbulb
has finally went off. I've found a different way to
provide for my family and show them structure . . . ."
Id. at 162.
On April 11, 2017, the trial court issued an order granting
DCS's petition to terminate the parent-child
relationship. In pertinent part, it found and held as
28. In approximately 2008, Father moved to Georgia and ceased
visiting his child or maintaining regular and consistent
30. During the course of the child's placement with
[Grandmother], neither parent provide[d] regular and
consistent financial and/or material support and care of the
37. Since the child has been a ward of the State of Indiana,
Father has only seen the child two times face to face . . . .
38. Father has never returned to the State of Indiana since
leaving in 2008. Father cites his work schedule as the
impairment despite there not being any restrictions on his
travel since his release and despite the travel being only
eight (8) hours.
39. The Court finds that Father is gainfully employed and
living with his girlfriend and her two children. Father has
two other children who do not reside with him.
40. The Court finds that Father is fully aware of his court
ordered obligations under the Dispositional Decree; however,
he never completed his diagnostic assessment citing financial
reasons despite the fact he is employed 56 hours per week as
a carpenter. Father also claimed that he ...