In the Termination of the Parent-Child Relationship of: R.L.-P. (Minor Child)
The Indiana Department of Child Services, Appellee-Petitioner. and M.E. (Father), Appellant-Respondent,
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
OF THE CASE
Appellant-Respondent, M.E. (Father), appeals from the trial
court's Order terminating his parental rights to his
minor child, R.L.-P. (Child).
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.
AND PROCEDURAL HISTORY
Child was born to Father and D.P. (Mother) 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.
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.
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.
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.
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
[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 ...