In Re the Termination of the Parent-Child Relationship of:T.W. (Minor Child) and T.K. (Father), Appellant-Respondent,
The Indiana Department of Child Services, Appellee-Petitioner
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
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
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. 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.
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
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.
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.
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
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.
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
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.
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.
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.
On August 14, 2018, two weeks before Father's placement
in work release, DCS had filed a petition to terminate his
parental rights. 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
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.
and Decision I. Standard of Review
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).
Indiana Code section 31-35-2-4(b)(2) requires that a petition
to terminate parental rights for a CHINS must make the
(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
(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 ...