Preview:

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: RONALD E. McSHURLEY Muncie, Indiana

ATTORNEYS FOR APPELLEE: JAMES E. MOORE Department of Child Services Muncie, Indiana ROBERT J. HENKE DCS Central Administration Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
IN RE THE TERMINATION OF THE PARENT-CHILD RELATIONSHIP OF K.K. (Minor Child) and R.I. (Father), Appellant-Respondent, vs. THE INDIANA DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner. ) ) ) ) ) ) ) ) ) ) ) ) ) )

Dec 28 2012, 9:04 am

CLERK

No. 18A02-1205-JT-434

APPEAL FROM THE DELAWARE CIRCUIT COURT The Honorable Alan K. Wilson, Judge The Honorable Brian M. Pierce, Magistrate Cause No. 18C02-1108-JT-23

December 28, 2012 MEMORANDUM DECISION - NOT FOR PUBLICATION CRONE, Judge

Case Summary R.I. ("Father") appeals the trial court's involuntary termination of his parental rights to his child, K.K. We affirm. Facts and Procedural History Except as noted below, Father does not challenge the correctness of the factual findings in the trial court's termination order, which reads in pertinent part as follows: 1. 2. That [Father] is the father of [K.K.], born June 4, 2010. That [K.K.] was removed from her parents by Order at a Detention Hearing held June 7, 2010 in the underlying Child in Need of Services (CHINS) cause ....[1] That, since removal, [K.K.] was not returned to the care of either of her parents. That the child was adjudicated to be a CHINS in a hearing held on September 21, 2010. That a Permanency Plan of Adoption was approved at a hearing on June 6, 2011. That [Father] has continuously resided in prison for the duration of the underlying CHINS cause. That [Father] has continuously resided in prison for the duration of the child's life. That [Father] currently resides in prison serving an eight (8) year sentence for two counts of Felony Battery. That [Father] has never had any contact with the child.

3.

4.

5.

6.

7.

8.

9.

According to DCS case manager Krista Garrett, both K.K. and her mother tested positive for cocaine, benzodiazepines, and marijuana at the time of K.K.'s birth. Tr. at 20. The mother's parental rights were later terminated.

1

2

10.

That [Father's] earliest possible release date from prison is January 21, 2014. That [Father] has an extensive history of Felony convictions and incarcerations from multiple crimes committed in multiple Indiana counties extending back at least as far as 1990. That [Father] has demonstrated, consistently over an extended period of time, an inability both to abide by the law and remain out of prison. That since the child has been placed in foster care the child has shown systematic and consistent improvement in her development.

11.

12.

13.

Appellant's App. at 38. On August 3, 2011, the Department of Child Services ("DCS") filed a petition for the involuntary termination of Father's parental rights. After a hearing, on April 25, 2012, the trial court issued its termination order, which contains the following additional findings and conclusions: 14. That the child needs a safe, stable, secure and permanent environment in order to thrive. [Father] has not demonstrated the ability to provide the child with such an environment. That the CASA agrees that it is in the best interest of the child to terminate the parental rights of [Father]. That based on the foregoing there is a reasonable probability that the conditions that resulted in the child's removal will not be remedied. That based on the foregoing there is a reasonable probability that the continuation of the parent/child relationship herein poses a threat to the well being of the child. Termination of the parent/child relationship is in the best interest of the child. The Indiana DCS has a satisfactory plan for the care and treatment of the child, which includes adoption.
3

15.

16.

17.

18.

19.

20.

The Indiana DCS has proven [its] petition herein by clear and convincing evidence.

IT IS NOW THEREFORE ORDERED that the parent/child relationship between [Father] and [K.K.] is hereby terminated together with all rights and privileges contained therein. Id. at 38-39. Father now appeals. Discussion and Decision Indiana Code Section 31-35-2-4(b) provides that a petition to terminate parental rights must meet the following relevant requirements:2 (2) The petition must allege: (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 county office of family and children or probation department for at least fifteen (15) months of the most recent twentytwo (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:

Indiana Code Section 31-35-2-4 was amended slightly in 2012. We quote the version of the statute in effect when DCS filed its termination petition in 2011.

2

4

(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 the parents will not be remedied. (ii) There is a reasonable probability that the continuation of the parentchild relationship poses a threat to the well-being of the child. (iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services; (C) that termination is in the best interests of the child; and (D) that there is a satisfactory plan for the care and treatment of the child. DCS must prove "each and every element" by clear and convincing evidence. In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009); Ind. Code

Download 12281203tac.pdf

Indiana Law