MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                       FILED
court except for the purpose of establishing                               Aug 20 2019, 6:59 am
the defense of res judicata, collateral
                                                                                CLERK
estoppel, or the law of the case.                                           Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT M.B.                              ATTORNEYS FOR APPELLEE
Joel C. Wieneke                                          Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Katherine A. Cornelius
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         August 20, 2019
of the Parent–Child Relationship                         Court of Appeals Case No.
of A.B. (Minor Child)                                    19A-JT-571
and                                                      Appeal from the Vigo Circuit
                                                         Court
M.B. (Father),
                                                         The Honorable Sarah K. Mullican,
Appellant-Respondent,                                    Judge

        v.                                               Trial Court Cause No.
                                                         84C01-1805-JT-625

The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-571| August 20, 2019                       Page 1 of 8
      Bradford, Judge.



                                               Case Summary
[1]   M.B. (“Father”) is the biological father of A.B. (“Child”). In August of 2017,

      Child was placed with Father on a trial home visit. In September of 2017, Child

      was adjudicated to be a child in need of services (“CHINS”) after Father

      admitted that she was a CHINS and agreed to participate in services. The

      Department of Child Services (“DCS”) petitioned for the termination of

      Father’s parental rights after Father was arrested on federal drug-related charges

      in October of 2017. In January of 2019, the juvenile court ordered that Father’s

      parental rights to Child be terminated. Father contends, inter alia, that the

      juvenile court’s termination of his parental rights was clearly erroneous.

      Because we agree, we reverse and remand for further proceedings.



                                Facts and Procedural History
[2]   Father and Mother1 are the biological parents of Child, born February 21, 2016.

      On March 9, 2017, Mother became upset with Father and rammed her vehicle

      into his while Child was seated inside of Mother’s vehicle. DCS took custody of

      Child after Mother was arrested, and Father admitted to smoking marijuana the

      day before and refused to take a drug test. On March 10, 2017, DCS filed a




      1
          Mother does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-571| August 20, 2019   Page 2 of 8
      petition alleging that Child was a CHINS. On August 17, 2017, Father

      admitted that Child was a CHINS and agreed to participate in services. On

      September 7, 2017, the juvenile court adjudicated Child a CHINS.


[3]   Father successfully completed home-based case management, maintained a

      working mobile telephone to communicate with DCS, consistently participated

      in visitation with Child, allowed the family case manager (“FCM”) to conduct

      home visits, completed a substance-abuse assessment which did not

      recommend any drug treatment, and established a home in his own apartment,

      even though he eventually had to move back into his grandmother’s house.

      Obtaining a part-time job was the only goal Father did not successfully achieve,

      despite applying for various jobs. By mid-August of 2017, DCS placed Child

      with Father on a trial home visit. On October 12, 2017, the trial home visit

      ended after Father was arrested on federal charges for distributing illegal drugs.

      FCM William Welch testified that visitation between Father and Child was

      suspended following his incarceration because visitation while a parent is

      incarcerated is not something that DCS typically permits. FCM Welch also

      testified that despite being unable to visit Child, Father emailed FCM Welch a

      few times regarding possible placements for Child and sent him a letter

      regarding things “in general,” to which FCM Welch responded to by sending

      photos of Child and information regarding her well-being. Tr. pp. 55–56.


[4]   On June 13, 2018, DCS petitioned for the termination of both Mother’s and

      Father’s parental rights. On December 17, 2018, the juvenile court conducted a

      termination hearing. At the termination hearing, Father appeared

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-571| August 20, 2019   Page 3 of 8
      telephonically due to his pre-trial incarceration on the pending federal

      distributing charges. The amount of time Father was to remain incarcerated

      was subject to speculation by both parties. DCS believed that Father would be

      incarcerated for several more years, while Father contended that “They ain’t

      said nothing yet. They keep postponing me.[2] They said I was going to be here

      a year or two years at the most or even a year if I get a plea bargain.” Tr. pp.

      72–73. Father’s criminal history, all of which occurred prior to this current

      matter, was established and included a 2006 conviction for methamphetamine

      dealing, a 2012 conviction for marijuana possession, a 2014 conviction for

      marijuana dealing, and a 2016 conviction for maintaining a common nuisance.


[5]   FCM Welch testified and court-appointed special advocate Mackenzie Kelley

      (“CASA Kelley”) submitted a report regarding Child’s well-being in her foster

      placement but stopped short of testifying as to what was in Child’s best

      interests. CASA Kelley noted that Child was happy and doing well in her foster

      placement and called her foster parents “mom” and “dad,” which lead to

      CASA Kelley recommending that Child remain in foster placement and efforts

      be made to establish a permanent home. Appellant’s App. Vol. II p. 15. FCM

      Welch testified that Child was doing very well, was integrated into her foster

      placement, and likened the other children living in her foster placement to

      siblings. FCM Welch also testified that his concern was that both of Child’s

      parents were incarcerated. On January 4, 2019, the juvenile court terminated



      2
          Father testified that his trial date had been postponed four times.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-571| August 20, 2019   Page 4 of 8
      both Father’s and Mother’s parental rights in Child. Regarding Father, the

      juvenile court stated in its order only that


              When Father began screening clear for the Department after
              May, 2017, [Child] was ultimately placed with him on a trial
              home visit, beginning August 28, 2017. Although Father
              otherwise seemed to do well with [Child], the trial home visit
              ended on October 10, 2017, when Father was arrested for dealing
              drugs by federal authorities. From that date to the present he has
              been held pretrial and does not have a trial date. DCS believes he
              will be incarcerated for several more years.


      Appellant’s App. Vol. II p. 25.



                                 Discussion and Decision
[6]   The Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their children. Bester v.

      Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). The

      parent–child relationship is “one of the most valued relationships in our

      culture.” Neal v. DeKalb Cty. Div. of Family & Children, 796 N.E.2d 280, 286 (Ind.

      2003) (internal citations omitted). Parental rights, however, are not absolute

      and must be subordinated to the child’s interests when determining the proper

      disposition of a petition to terminate the parent–child relationship. Bester, 839

      N.E.2d at 147. Therefore, when parents are unwilling or unable to fulfill their

      parental responsibilities their rights may be terminated. Id.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-571| August 20, 2019   Page 5 of 8
[7]   In reviewing the termination of parental rights on appeal, we neither reweigh

      the evidence nor judge the credibility of witnesses. Doe v. Daviess Cty. Div. of

      Children & Family Servs., 669 N.E.2d 192, 194 (Ind. Ct. App. 1996), trans. denied.

      We consider only the evidence and reasonable inferences therefrom which are

      most favorable to the juvenile court’s judgment. Id. Where, as here, a juvenile

      court has entered findings of facts and conclusions of law, our standard of

      review is two-tiered. Id. First, we determine whether the evidence supports the

      factual findings, second, whether the factual findings support the judgment. Id.

      The juvenile court’s findings and judgment will only be set aside if found to be

      clearly erroneous. Id. A finding is clearly erroneous if no facts or inferences

      drawn therefrom support it. In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App.

      2005). “A judgment is clearly erroneous if the findings do not support the

      juvenile court’s conclusions or the conclusions do not support the judgment.”

      Id.


[8]   Indiana Code section 31-35-2-4(b) dictates what DCS is required to establish to

      support a termination of parental rights. Of relevance to this case, DCS was

      required to establish by clear and convincing evidence “that termination is in

      the best interests of the child[.]” Ind. Code § 31-35-2-4(b)(2). In challenging the

      sufficiency of the evidence to sustain the termination of his parental rights,

      Father contends that the juvenile court erred by concluding, inter alia, that

      termination of his parental rights was in Child’s best interests.


[9]   We are mindful that, in determining what is in the best interests of the child, the

      juvenile court must look beyond factors identified by DCS and consider the

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-571| August 20, 2019   Page 6 of 8
       totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).

       The juvenile court need not wait until a child is irreversibly harmed before

       terminating the parent–child relationship because it must subordinate the

       interests of the parents to those of the children. McBride v. Monroe Cty. Office of

       Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003).


[10]   Here, it seems that the termination of Father’s parental rights was based solely

       on his pre-trial incarceration and the assumption that it might last several more

       years. Father, however, has not been convicted, and it is, of course, not certain

       that he will be. Given Father’s presumption of innocence and speculation as to

       the length of his incarceration, this is insufficient to support termination. While

       a conviction or definite sentence might support a decision to terminate parental

       rights, the record before the juvenile court in this case did not provide such

       evidence.


[11]   The State contends that Father’s criminal history and Child’s success in her

       current foster placement also support the juvenile court’s best interests

       determination. The juvenile court’s termination order, however, never mentions

       Father’s criminal history as a contributing factor to its decision. Consequently,

       we shall assume it was not. Moreover, while FCM Welch and CASA Kelley

       testified that Child is doing well and integrated into her foster placement, that

       does not necessarily mean Father’s parental rights should be terminated. See In

       re V.A., 51 N.E.3d 1140, 1152 (Ind. 2016) (“[T]ermination is intended as a last

       resort, available only when all reasonable efforts have failed.”). It is our

       sincerest hope that all children who must be placed in a foster home thrive in

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-571| August 20, 2019   Page 7 of 8
       their placement, but the fact that it might be a better home does not warrant the

       termination of biological parent’s rights. See id. at 1151 (noting that a parent’s

       rights may not be terminated solely because there is a better home available for

       the child). A review of the record in this case indicates that the juvenile court

       based its decision solely on the fact that Father was being held in pre-trial

       incarceration with, at best, a purely speculative length of incarceration. Under

       this particular set of circumstances, we cannot say that DCS produced sufficient

       evidence to support the juvenile court’s determination that termination of

       Father’s parental rights was in Child’s best interests.


[12]   The judgment of the juvenile court is reversed and remanded for further

       proceedings.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-571| August 20, 2019   Page 8 of 8
