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ATTORNEY FOR APPELLANT
Mark Small Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Robert J. Henke Rachael Armstrong Dana J. Phillips Indiana Department of Child Services Indianapolis, Indiana

______________________________________________________________________________

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

Indiana Supreme Court
_________________________________ No. 62S01-1003-JV-148 IN THE MATTER OF THE INVOLUNTARY TERMINATION OF PARENT-CHILD RELATIONSHIP OF I.A.,
AND

In the

Oct 05 2010, 10:13 am

CLERK

J.H. (FATHER), Appellant (Respondent below), v. INDIANA DEPARTMENT OF CHILD SERVICES, Appellee (Petitioner below). _________________________________ Appeal from the Perry Circuit Court, No. 62C01-0802-JT-00033 The Honorable M. Lucy Goffinet, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 62A01-0905-JV-252 _________________________________ October 5, 2010 Rucker, Justice.

Case Summary The trial court terminated Fathers parental rights on the grounds that (1) the reason for his childs placement outside of Fathers home will not be remedied; and (2) the continuation of the parent-child relationship poses a threat to the well-being of the child. Concluding that the evidence does not clearly and convincingly demonstrate that Fathers parental rights should be terminated, we reverse the judgment of the trial court.

Facts and Procedural History On February 18, 2006, a son, I.A. (sometimes referred to as "Child") was born out of wedlock to D.A. ("Mother") and J.H. ("Father"). Child was one of Mothers seven children then ranging in age from birth to fourteen years old. Sometime within a few months following Childs birth, Mother told Father that I.A. was his son. The Perry County Department of Child Services ("DCS") became involved with Mother and her children in February 2006 due to allegations of lack of supervision, educational and medical neglect, and Mothers drug use. On December 21, 2006, DCS received a report that unknown to Mother, two of her younger children were discovered by police playing in the parking lot of a motel unsupervised and two of her older children had travelled to a nearby town alone. The children were thus removed from Mothers care based on a lack of supervision and on January 4, 2007, DCS filed individual petitions alleging each child was a child in need of services ("CHINS"). With respect to I.A., noting "[a]ddress [u]nknown," DCS named Father as a party to the petition. Ex. Tr. (Exhibit B).1 After a hearing held on March 30, 2007, at which both Mother and Father appeared pro se, the trial court entered an order granting the CHINS petition. The order included a case plan for reunification that provided in relevant part, "[t]he mother shall participate in the Perry County Department of Child Services CHINS Drug Court. . . . The mother shall participate in supervised visits with the child. The mother shall continue to participate with parent-aide services. The mother shall obtain and maintain employment. The
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We use Ex. Tr. to refer to the Volume of Exhibits. The pages therein are unnumbered. Tr. refers to the Transcript of Evidence.

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mother shall complete a parenting skills assessment and follow any and all recommendations of the assessment. The mother shall attend and participate in individual counseling to address issues of domestic violence, neglect and abuse, and any other areas that are deemed appropriate and necessary." Ex. Tr. (Exhibit J). With respect to Father, the trial courts order declared, "[t]he father waives his right to be represented by counsel. The father admits that the child is a child in need of services." Id. The trial courts order was entered April 12, 2007.

After a review hearing held on July 12, 2007, at which both Mother and Father appeared, the trial court entered an order finding among other things, "mother and child shall continue to participate in the case plan." Ex. Tr. (Exhibit K). No findings were entered with respect to Father. Father later testified that during the summer of 2007, he initially was allowed limited visitation with Child, however visitation was discontinued in September 2007, apparently because paternity had not yet been established. On February 12, 2008, DCS filed a petition to terminate both Mothers and Fathers parental rights. In May 2008 Father sought paternity testing and filed a petition to establish paternity of Child which the trial court granted on September 30, 2008. From July 11, 2008 through January 29, 2009, Father was allowed

supervised visitation with Child.

At a review hearing held November 25, 2008, at which Father appeared but Mother did not, the trial court entered several findings including, "Mother has not complied with the case plan. Father has complied with the case plan. 2 Mother has not enhanced her ability to fulfill parental obligations. Father has enhanced his ability to fulfill parental obligations. Mother does not visit regularly with the child. Father visits regularly with the child. Mother is not cooperating with the DCS. Father is cooperating with the DCS." Ex. Tr. (Exhibit R).

After a hearing conducted approximately three months later, on February 17, 2009, the trial court entered an order granting DCS petitions to terminate the parental rights of Father with

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The record does not reveal that a case plan was ever entered with respect to Father. As discussed in further detail below there was apparently an informal adjustment whereby Father was provided a parent aide in conjunction with supervised visits with Child.

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respect to I.A. and the parental rights of Mother regarding six of her seven children.3 The order involving I.A. provided in pertinent part: a. The child has been removed from his parents for at least six (6) months under a dispositional decree of the Perry Circuit Court, dated April 12, 2007 . . . . The child has been removed from his parents and has been under the supervision of a county Office of Family and Children for at least fifteen (15) of the last twenty-two (22) months. There is a reasonable probability that: 1. The conditions that resulted in the childs removal or the reasons for the placement outside the parents home will not be remedied in that: i. The Father, [J.H.], has not bonded with the child after six (6) months of Parent-Aid[e] services. ii. The Father, [J.H.], needs lots of direction regarding simple tasks relating to the care of the child. iii. Evidence presented from the Parent-Aid[e] caseworker that there has been no progress in the relationship between the father and the child in six (6) months of services. iv. The Mother, [D.A.], has not visited the child since July, 2008. v. The Mother, [D.A.], has continued, repeated drug use. vi. The Mother, [D.A.], has demonstrated a lack of supervision of the children. vii. The Mother, [D.A.], was terminated from the Perry County CHINS Drug Court. viii. The Mother, [D.A.], left Stepping Stones Drug Recovery Program before completion of the program. ix. The Mother, [D.A.], failed to cooperate with ParentAid[e]. x. The Mother, [D.A.], failed to cooperate with her Department of Child Services caseworker. xi. The Mother, [D.A.], has failed to cooperate with any services offered to her by the Perry County Department of Child Services . . . .

b.

c.

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On motion of the DCS the trial court dismissed the Petition to Terminate Parental Rights with respect to Mothers oldest child, A.S., who was seventeen years of age at the time of the termination hearing and objected to being adopted. Tr. at 7.

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2. Continuation of the parent-child relationship poses a threat to the well-being of the child in that the mother, [D.A.], continues to abuse illegal substances, lacks supervision of the children and has not remedied any of the causes for removal in the underlying CHINS proceeding. The father, [J.H.], has not bonded with the child. d. Termination is in the best interest of the child in that the child is in a stable environment. The child needs permanency.

Appellants App. at 10-11. Father appealed, and in a memorandum decision the Court of Appeals affirmed. See J.H. v. Ind. Dept of Child Servs., No. 62A01-0905-JV-252 (Ind. Ct. App. Dec. 10, 2009). Having previously granted transfer, we now reverse the judgment of the trial court.4

Standard of Review

When reviewing the termination of parental rights, we do not reweigh the evidence or judge witness credibility. Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We consider only the evidence and reasonable inferences that are most favorable to the judgment. Id. We must also give "due regard" to the trial court's unique opportunity to judge the credibility of the witnesses. Indiana Trial Rule 52(A). Here, the trial court entered findings of fact and conclusions thereon in granting DCS petition to terminate Fathers parental rights. When reviewing findings of fact and conclusions of law entered in a case involving a termination of parental rights, we apply a two-tiered standard of review. First, we determine whether the evidence supports the findings, and second we determine whether the findings support the judgment. Page v. Greene County Dept of Welfare, 564 N.E.2d 956, 959 (Ind. Ct. App. 1991). We will set aside the trial courts judgment only if it is clearly erroneous. In re B.C., 441 N.E.2d 208, 211 (Ind. 1982). A judgment is "clearly erroneous if the findings do not support the trial courts conclusions or the conclusions do not support the judgment." In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).

Our determination in this regard applies to Father only. Mother did not contest the trial courts judgment and is not a party to this appeal.
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Trial Rule 52(A) provides that "the court on appeal shall not set aside the findings or judgment unless clearly erroneous." In implementing this directive, however, it is appropriate to take into consideration the express statutory requirement that "[a] finding in a proceeding to terminate parental rights must be based upon clear and convincing evidence." Ind. Code

Download Term. of Parent-Child Rel. of I.A.; J.H. v. IDCS.pdf

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