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In re Termination of the Parent-Child Relationship of R.L.-P.

Court of Appeals of Indiana

February 19, 2019

In the Termination of the Parent-Child Relationship of: R.L.-P. (Minor Child)
v.
The Indiana Department of Child Services, Appellee-Petitioner. and M.E. (Father), Appellant-Respondent,

          Appeal from the Marion Superior Court The Honorable Marilyn A. Moores, Judge The Honorable Scott Stowers, Magistrate Trial Court Cause No. 49D09-1712-JT-1364

          ATTORNEY FOR APPELLANT Daniel G. Foote Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana

          RILEY, JUDGE

         STATEMENT OF THE CASE

         [¶1] Appellant-Respondent, M.E. (Father), appeals from the trial court's Order terminating his parental rights to his minor child, R.L.-P. (Child).

         [¶2] We affirm.

         ISSUES

         [¶3] Father presents three issues on appeal, which we consolidate and restate as:

(1) Whether the trial court erred when it denied his motion to dismiss; and
(2) Whether the trial court's Order terminating his parental rights to Child was clearly erroneous.

         FACTS AND PROCEDURAL HISTORY

         [¶4] Child was born to Father and D.P. (Mother)[1] in March of 2016. On April 28, 2016, the Department of Child Services (DCS) filed a petition alleging that Child was a child in need of services (CHINS) based on allegations that Mother had failed to provide Child with a stable home free from substance abuse, Child's meconium had tested positive for marijuana at birth, Father had failed to demonstrate an ability or willingness to appropriately parent Child or to ensure her wellbeing while in Mother's care, and Mother reported that Father was abusing heroin. On June 20, 2016, Mother admitted that Child was a CHINS due to Mother and Child testing positive for marijuana at the time of Child's birth. Father failed to appear for the CHINS fact-finding hearing, but after hearing evidence from the family case manager (FCM), the trial court found that Mother had reported domestic violence involving Father, DCS had only had two telephone contacts with Father, Father did not have stable housing, Father had not participated in services to address his substance abuse or domestic violence issues, Father had never appeared in court, and Father had not demonstrated an ability or willingness to parent Child. The trial court found that Child was a CHINS; however, Child remained in Mother's home, and Mother was ordered to engage in a number of services. On September 19, 2016, Child was removed from Mother's home due to safety concerns, and Child was placed in foster care where she has resided ever since.

         [¶5] During the CHINS proceedings, Father was arrested for possession of methamphetamine. Father pleaded guilty and on December 7, 2016, was sentenced to time served. On February 28, 2017, Father committed the offense of conspiracy to commit robbery. He pleaded guilty to the offense and on December 13, 2017, was sentenced to nine years in the Department of Correction (DOC), with five years suspended, and two years of probation.

         [¶6] On May 1, 2017, the permanency plan for Child was changed from reunification to adoption due to Mother and Father's failure to comply with Child's case plan. On August 28, 2017, the trial court entered an order directing Father to submit to a buccal swab to establish paternity. On October 8, 2017, Child was moved into a pre-adoptive foster home, which was her final placement. DNA results dated October 12, 2017, confirmed that Father was Child's biological father. DCS referred Father to Father Engagement services with Greg Hruby (Hruby). Father told Hruby that he felt that he was not capable of being a father to Child but that paternal Grandfather (Grandfather) was capable. After Father told Hruby that he wished Child to be placed with Grandfather, Hruby met with Grandfather in his home and eventually performed a home assessment. Father was unable to complete Father Engagement due to being transferred to another DOC facility which did not provide services.

         [¶7] In December 2017, Grandfather attended a family-child team meeting for Child where he disclosed that he was unable to care for Child at that time, citing work schedule concerns. On December 21, 2017, DCS filed a petition seeking the termination of Father's parental rights to Child (TPR). Grandfather was referred for grandparent visitation in February of 2018. At an April 2018 family-child team meeting, Grandfather requested that Child be placed with him. Child's current foster family also attended the meeting. DCS interviewed Grandfather and Child's current foster family at the meeting, and after that interview, concluded that Grandfather had not been able to answer their questions as adequately as the foster family. DCS did not alter Child's placement. In March 2018, Child's foster family filed a petition to adopt her. After mediation in the TPR proceedings failed to produce an agreement, the TPR was set for a two-day trial on July 24 and July 25, 2018.

         [¶8] On July 19, 2018, Father filed a motion to dismiss the TPR in which he averred that Mother and Father had executed consents for Grandfather to adopt Child. Father also averred that on July 10, 2018, Grandfather had filed a petition to adopt Child. Father argued that, in light of his consent to adoption and the filing of Grandfather's adoption petition,

[i]t is not necessary to have a trial to prove that termination is in the best interests of [Child] or that there is a satisfactory plan for the care and treatment of [Child]; both parents agree that this is the case. The only dispute remaining in this matter is whether one plan (Paternal Grandfather's home) or another (foster parents' home) is more appropriate for [Child]; however, this [c]ourt is not the proper venue to resolve that dispute.

(Appellant's App. Vol. II, p. 72). In its response to Father's motion to dismiss, DCS averred that Grandfather did not request placement until April 9, 2018, and that the consents that Mother and Father had executed were insufficient because Child's name was misspelled and her date of birth was not provided. The trial court ...


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