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In re Termination of Parent Rights of B.L.P.

Court of Appeals of Indiana

January 3, 2018

In the Matter of the Termination of Parent Rights of: B.L.P. (Minor Child) and Br.L.P. (Father), Appellant-Respondent,
v.
The Indiana Department of Child Services, Appellee-Petitioner

         Appeal 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 Indianapolis, Indiana

          BAKER, JUDGE.

         [¶1] 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.

         Facts

         [¶2] Child was born to C.V. (Mother) and Father on March 21, 2005.[1] 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.

         [¶3] 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.

         [¶4] 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 care.

         [¶5] 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.

         [¶6] 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.

         [¶7] 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 127, 160.

         [¶8] 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 history.

         [¶9] 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, [2] 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. Id.

         [¶10] 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 person.

         [¶11] 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.

         [¶12] On April 11, 2017, the trial court issued an order granting DCS's petition to terminate the parent-child relationship.[3] In pertinent part, it found and held as follows:

28. In approximately 2008, Father moved to Georgia and ceased visiting his child or maintaining regular and consistent contact.
***
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 minor child.
***
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 ...

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