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In re Termination of The Parent-Child Relationship of: T.W.

Court of Appeals of Indiana

October 31, 2019

In Re the Termination of the Parent-Child Relationship of:T.W. (Minor Child) and T.K. (Father), Appellant-Respondent,
v.
The Indiana Department of Child Services, Appellee-Petitioner

          Appeal from the Vanderburgh Superior Court The Honorable Brett J. Niemeier, Judge Trial Court Cause No. 82D04-1808-JT-1509

          ATTORNEY FOR APPELLANT Katharine Vanost Jones Vanderburgh County Public Defenders Office Evansville, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana

          BAKER, JUDGE.

         [¶1] T.K. (Father) appeals the trial court's order terminating his parent-child relationship with his child, T.W. (Child). Finding that the Department of Child Services (DCS) did not make reasonable efforts to reunify Father with Child, thereby violating Father's due process rights, we reverse and remand.

         Facts

         [¶2] Child was born on March 6, 2017, to Father and K.W. (Mother). At the time of Child's birth, Father was incarcerated in Kentucky and was unable to establish paternity. Child was removed from Mother's care and custody on March 7, 2017, because Mother had substance abuse issues, had unstable housing, and was failing to comply with a Child In Need of Services (CHINS) case involving Child's older sibling. On March 9, 2017, DCS filed a petition alleging that Child was a CHINS, and on April 5, 2017, the trial court granted the petition as to Father.[1] On the same day, the trial court held a dispositional hearing related to Father, ordering him to contact DCS upon his transfer or release from custody.

         [¶3] Before Child was born, Father, knowing that Child was likely to be a CHINS because of Mother's ongoing substance abuse issues, contacted DCS, acknowledged paternity, and requested assistance to be an active participant in the case. After Child was born, Father spoke with a Family Case Manager (FCM) and requested that Child be placed with paternal grandmother, who lives in Kentucky. DCS began the process to place a ward out of state, but in the meantime, Child remained in foster care.[2]

         [¶4] On March 23, 2018, Father was released from incarceration and placed on probation for four and one-half years. He called FCM Brandon Meredith on March 29, 2018. During that phone call, Father provided FCM Meredith with the address where he was staying at the time, but told the FCM that he was not staying there permanently and was instead "couch surfin'." Tr. Vol. II p. 20. FCM Meredith inferred that Father was homeless.

         [¶5] Father met with FCM Meredith at DCS on April 6, 2018. At that meeting, FCM Meredith told Father he needed to establish paternity and obtain a substance abuse evaluation. Father indicated that as he was recently released from incarceration, he needed help to understand what to do and how to comply with services. FCM Meredith agreed to provide parent aide services to assist Father in finding employment and housing and to set up visitation. FCM Meredith never made a referral for a parent aide.

         [¶6] With respect to paternity, Father went to the Vanderburgh County Prosecutor's Office and obtained the necessary paperwork. An employee in that office showed Father which sections of the forms he needed to fill out and told him to deliver the documents to the FCM, who would fill out the rest of the information (about Child, Child's placement, and Mother) and return it to the Prosecutor's Office. The employee told Father that the FCM, rather than Father, had to return it because there would be confidential information on the form. The week of April 10, 2018, Father completed his sections of the forms and took the packet to DCS.[3] FCM Meredith evidently filled out the forms and then called Father and told him to retrieve the packet. Father, under the impression that DCS had to return the documents to the Prosecutor's Office, did not retrieve the paperwork. After two weeks passed with Father not retrieving the documents, FCM Meredith put them in his file. FCM Meredith was asked whether, at that point, he decided "that the child would be better off with someone else," and he responded, "Yes." Id. at 82. He stated that it was Father's responsibility to contact him and that Father "did not inform me that I was supposed to return it to the Prosecutor's Office." Id. at 84.

         [¶7] FCM Meredith made a referral for drug screens. Though he had a current and active phone number for Father, he did not call Father with the information, instead mailing it to the address Father had provided in their initial phone call. As Father was no longer staying there, he did not receive the paperwork.

         [¶8] FCM Meredith initially made a referral for visitation at an agency. Father arrived for the first visit thirty minutes early. He had bought a new outfit for himself and brought snacks and a Happy Meal for Child. Father checked in and was told to wait. He waited until twenty minutes after the time the visit was scheduled and learned at that point that FCM Meredith had cancelled the visit two days earlier. FCM Meredith explained his decision to cancel as follows:

. . . I did state that I would start visitation. I did put a referral in because that's just usually how we start cases, or start with when a parent's released. But then after thinking about it, I decided to cancel that referral because [Child] had never met [Father]. And I felt [that] if we went ahead and started a visit and started forming that bond and then if things didn't go well, . . . and he just disappeared, then that would have had psychological effects on [Child]. So I did call [the agency] and cancel the visit . . . .

Id. at 71-72.

         [¶9] Father and FCM Meredith did not have any contact from mid-April 2018 to August 31, 2018, when Father was arrested for violating the terms of his probation by failing to report to his probation officer. At that time, Father was placed in a Vanderburgh County work release facility. During the period with no contact between Father and DCS, FCM Meredith left voicemails for Father, but Father did not return the calls.

         [¶10] Father has a lengthy criminal history and has been incarcerated for most of the last fifteen to sixteen years for various offenses, the majority of which are drug related. His only stable housing as an adult was from 2007 and 2008 and then from May to December 2012. Because of his many incarcerations, he has a limited work history, and his last regular employment occurred in 2015-2016.

         [¶11] On August 14, 2018, two weeks before Father's placement in work release, DCS had filed a petition to terminate his parental rights.[4] The termination hearing took place on January 3, 2019. At that time, Father was employed with a construction company and had ten months left to serve on work release. He had completed a substance abuse evaluation and was attending substance abuse counseling. He did not have a plan for housing upon his release, but he did have a plan for employment:

I've got an associate's degree in welding technology. . . . I haven't been able to do much with it based on lack of job experience. So January 24th I start back to Ivy Tech and I'm takin' welding courses again 'cause I feel like I don't wanna waste that two years that I've already used and I'm gonna refresh up on some pipe welding classes and some TIG and things like that. I had talked to the people in . . . the admissions and they . . . agreed that it would be a good idea that if I was interested in getting in the unions here that they train and do some of their journeymen through the Ivy Tech facility. So I could definitely make contacts through there. 'Cause I really wanna be a pipe fitter.

Id. at 40-41. On February 20, 2019, the trial court granted DCS's petition to terminate the parent-child relationship. Father now appeals.

         Discussion and Decision I. Standard of Review

         [¶12] Our standard of review with respect to termination of parental rights proceedings is well established. In considering whether termination was appropriate, we neither reweigh the evidence nor assess witness credibility. K.T.K. v. Ind. Dep't of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will consider only the evidence and reasonable inferences that may be drawn therefrom in support of the judgment, giving due regard to the trial court's opportunity to judge witness credibility firsthand. Id. Where, as here, the trial court entered findings of fact and conclusions of law, we will not set aside the findings or judgment unless clearly erroneous. Id. In making that determination, we must consider whether the evidence clearly and convincingly supports the findings, and the findings clearly and convincingly support the judgment. Id. at 1229-30. It is "sufficient to show by clear and convincing evidence that the child's emotional and physical development are threatened by the respondent parent's custody." Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143, 148 (Ind. 2005).

         [¶13] Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate parental rights for a CHINS must make the following allegations:

(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six (6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court's finding, the date of the finding, and the manner in which the finding was made.
(iii) The child has been removed from the parent and has been under the supervision of a local office or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child;
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the child's removal or the reasons for placement outside the home of ...

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