                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                           Feb 02 2012, 8:42 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                      CLERK
                                                                of the supreme court,
                                                                court of appeals and
                                                                       tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

MARK SMALL                                      PATRICK M. RHODES
Marion County Public Defender Agency            Indiana Department of Child Services
Indianapolis, Indiana                           Indianapolis, Indiana

                                                ROBERT J. HENKE
                                                DCS Central Administration
                                                Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE INVOLUNTARY                )
TERMINATION OF THE PARENT-CHILD                 )
RELATIONSHIP OF A.C., a minor child, AND        )
HER FATHER, D.B.,                               )
                                                )
D.B.                                            )
                                                )
       Appellant-Respondent,                    )
                                                )
               vs.                              )    No. 49A05-1105-JT-286
                                                )
INDIANA DEPARTMENT OF CHILD                     )
SERVICES,                                       )
                                                )
       Co-Appellee-Petitioner,                  )
                                                )
               and                              )
                                                )
CHILD ADVOCATES, INC.,                          )
                                                )
       Co-Appellee (Guardian Ad Litem).         )


                      APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Danielle Gaughan, Judge Pro Tem
                           The Honorable Larry Bradley, Magistrate
                              Cause No. 49D09-1009-JT-38698


                                         February 2, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge

                                    CASE SUMMARY

       D.B. (“Father”) appeals the involuntary termination of his parental rights to his child,

A.C. On appeal, Father claims the Indiana Department of Child Services failed to establish

that A.C. had been removed from Father‟s care for at least six months pursuant to a

dispositional decree at the time the involuntary termination petition was filed, as is required

by Indiana Code section 31-35-2-4(b)(2)(A). We affirm.

                       FACTS AND PROCEDURAL HISTORY

       Father is the biological father of A.C., born in October 2007. At the time of A.C.‟s

birth, paternity had not been established. In September 2009, the local Marion County office

of the Indiana Department of Child Services (“MCDCS”) filed a petition alleging A.C. was a

child in need of services (“CHINS”) because A.C.‟s biological mother (“Mother”) and sole

legal guardian had died. Although Father was named as the alleged biological father of A.C.,

Father was incarcerated on carrying a handgun without a license and carjacking charges at

the time of Mother‟s death and was therefore unavailable to care for A.C.           A.C. was

temporarily placed with the child‟s maternal grandparents, and MCDCS sent a copy of the

CHINS petition, summons, parental rights form, and incarcerated parent survey to Father in

prison. Father thereafter requested and was granted the appointment of counsel to represent

                                              2
him in the pending CHINS matter.

       A hearing on the CHINS petition was held in January 2010, after which the juvenile

court adjudicated A.C. to be a CHINS. Following a dispositional hearing on February 9,

2010, the juvenile court issued a dispositional order formally removing A.C. from Father‟s

custody and making the child a ward of MCDCS. In addition, the juvenile court incorporated

a Participation Decree in its Dispositional Order directing Father to complete a variety of

tasks and services, including establishing paternity of A.C., with the ultimate goal being

reunification of Father and A.C. Father thereafter appealed the juvenile court‟s CHINS

determination and Dispositional Order on several grounds including: (1) lack of personal

jurisdiction over Father; (2) alleged due process violations; (3) erroneous CHINS

determination as to Father; and (4) abuse of discretion in ordering Father to establish

paternity over A.C.‟s half-sibling, E.C. Another panel of this Court issued a Memorandum

Decision on January 31, 2011, affirming the juvenile court‟s CHINS adjudication and

Dispositional Order. See In re A.C., 941 N.E.2d 569 (Ind. Ct. App. 2011). However, the

matter was remanded with instructions that the juvenile court “change the order to require

[Father] to establish paternity of A.C. only,” in light of the fact that another man, S.W., had

already established paternity of E.C. prior to the CHINS hearing. See id., slip op. at 4. In all

other matters, the juvenile court‟s orders were affirmed.

       The juvenile court promptly complied with this Court‟s directions by issuing an order

the same day. The order reads, in pertinent part, as follows:

       Comes now the Court, on its own Motion, and having reviewed the
       Memorandum Decision of the Court of Appeals of Indiana, notes that the


                                               3
       matter was remanded for the purposes of correcting an error in the Court‟s
       order of February 9, 2010. The Court having reviewed the Memorandum and
       the Court‟s record, now finds that the Court entered a second child‟s name in
       error, and corrects the order. The Court hereby corrects its order of February
       9. 2010[,] insofar as the Court‟s dispositional order and parental participation
       orders issued that date direct [Father] to establish paternity over [E.C.]; the
       Court strikes that portion of the order from the record, as [Father] is only
       ordered to establish paternity as an alleged father of [A.C.]. The Court notes
       that [Father] was only alleged to be the father of [A.C.], as paternity had been
       established for [E.C.].

       All other orders remain in effect.

Exhibits p. 18 (emphasis added). Thus, other than modifying its February 2009 order to

reflect that Father was no longer required to establish paternity of E.C., all the remaining

court-ordered reunification services set forth in the juvenile court‟s Participation Decree

and/or Dispositional Order remained in effect.

       Shortly thereafter, Father filed a Petition for Rehearing with this Court, claiming our

decision to affirm the juvenile court was erroneous because another panel of this Court had

recently held in In re M.R., 934 N.E.2d 1253 (Ind. Ct. App. 2010) that a parental

Participation Decree may not be entered against a putative father. This Court granted

Father‟s Petition for Rehearing for the sole purpose of clarifying why M.R. was

distinguishable from Father‟s case, and on April 21, 2011, we reaffirmed our earlier opinion

in a Memorandum Decision on Rehearing. See In re A.C., 946 N.E.2d 94 (Ind. Ct. App.

2011), trans. denied. In affirming our earlier opinion, however, we stated that we “embrace

the bright-line rule announced in M.R., that is, a putative father should not be ordered to

engage in CHINS-related services until his paternity of the CHINS is established.” Id., slip.

op. at 1. Accordingly, we remanded with instructions for the juvenile court to “issue a new


                                              4
Participation Decree ordering only that [Father] establish paternity of A.C.” Id. We

thereafter advised the juvenile court that should DNA testing confirm Father‟s paternity of

A.C., the court “may then enter a Participation Decree establishing the requirements [Father]

must complete to move toward reunification with A.C.” Id. Our original opinion was

otherwise affirmed “in all other respects.” Id.

       Meanwhile, in September 2010, MCDCS filed a petition seeking the involuntary

termination of Father‟s parental rights to A.C. An evidentiary hearing on the termination

petition was held on April 4, 2011. During the termination hearing, MCDCS presented

substantial evidence establishing Father, who remained incarcerated, had never seen A.C. and

remained incapable of providing the child with a safe and stable home environment. In

addition to his incarceration, the evidence admitted during the termination hearing showed

Father had an extensive criminal history, which included several felony convictions. Father

also had received approximately eleven conduct reports since his incarceration began in

2007, most recently in March 2011 for the use or possession of an illegal substance and all of

which resulted in the loss of privileges such as participating in a vocational training program

to obtain a barber‟s certificate and taking a GED examination to possibly obtain a sentence

reduction. Father‟s current sentence was even lengthened by one additional month as a result

of his bad conduct while incarcerated. The evidence also established that Father had no

relationship with A.C. and still had not established paternity of the child. As for A.C.‟s well-

being, the evidence demonstrated the child was living and thriving in pre-adoptive relative

foster care with the child‟s maternal grandparents and younger half-sibling in what the



                                               5
MCDCS family case manager described as a “perfect family setting.” Appellant‟s Appendix

p. 14.

         At the conclusion of the termination hearing, the juvenile court took the matter under

advisement pending the results of Father‟s DNA testing. On May 9, 2011, Father submitted

DNA test results establishing Father‟s paternity of A.C. On May 25, 2011, the juvenile court

entered its judgment terminating Father‟s parental rights to A.C. This appeal ensued.

                               DISCUSSION AND DECISION

         Initially, we note our standard of review. When reviewing a juvenile court‟s

judgment, we will not reweigh the evidence or judge the credibility of the witnesses. In re

D.D., 804 N.E.2d 258, 264 (Ind. Ct. App. 2004), trans. denied. Instead, we consider only the

evidence and reasonable inferences to be drawn therefrom that are most favorable to the

judgment. Id. In deference to the juvenile court‟s unique position to assess the evidence, we

will set aside a court‟s judgment terminating a parent-child relationship only if it is clearly

erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied; see also

Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005).

         Before an involuntary termination of parental rights may occur in Indiana, the State is

required to allege and prove, among other things:

         (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.

                                              ***

                (iii)   The child has been removed from the parent and has been


                                                6
                      under the supervision of a county office of family and
                      children 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 . . . .

Ind. Code § 31-35-2-4(b)(2)(A). The State‟s “burden of proof in termination of parental

rights cases is one of „clear and convincing evidence.‟” In re G.Y., 904 N.E.2d 1257, 1260-

61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2 (2008)). Moreover, Indiana Code section

31-35-2-8(a) provides that if a juvenile court finds that the allegations in the termination

petition are true, “the court shall terminate the parent-child relationship.” Id. (emphasis

added).

       Father does not challenge the sufficiency of the evidence supporting the juvenile

court‟s findings of primary fact, including the court‟s findings that: (1) there is a reasonable

probability the conditions resulting in A.C.‟s removal and continued placement outside

Father‟s care will not be remedied; (2) termination of parental rights is in A.C.‟s best

interests; and (3) MCDCS has a satisfactory plan for the future care and treatment of A.C.

See Ind. Code § 31-35-2-4(b)(2)(B)-(D). Rather, Father‟s sole allegation of error on appeal

is that MCDCS failed to prove A.C. was removed from Father‟s care pursuant to a

dispositional order for the requisite six-month time period mandated by Indiana Code section

31-34-2-4(b)(2)(A).

       In making this argument, Father asserts that our Memorandum Decision on Rehearing

in this matter, issued in April 2011, remanded the case to the juvenile court with instructions

that “a new Participation Decree be issued.” Appellant‟s App. p. 6. Father further asserts


                                               7
that because a Participation Decree “is included amongst dispositional decrees contemplated

by I.C. § 31-34-20-1,” the “relevant dispositional decree” for removal purposes under

Indiana‟s involuntary termination statute “would be the new Participation Decree,” rather

than the juvenile court‟s February 2010 Dispositional Order. Id. at 10; see also Ind. Code §

31-35-2-4(b). Father therefore contends that MCDCS failed to satisfy the jurisdictional

mandates of Indiana Code section 31-35-2-4(b)(2)(A) due to the fact it filed the involuntary

termination petition pertaining to Father and A.C. in September 2010, several months before

a relevant Dispositional Order could have been made.

       We agree with Father that a juvenile court may issue a Dispositional Order that

requires a CHINS‟s “parent, guardian, or custodian to complete services recommended by the

department and approved by the court under IC 31-34-16, IC 31-34-18, and IC 31-34-19.”

See Ind. Code § 31-35-20-1; see also Ind. Code § 31-34-20-3. Nevertheless, there are

marked differences between Dispositional Orders, which are governed by Indiana Code

sections 31-34-19 et seq., and parental Participation Decrees, which are governed by Indiana

Code section 31-34-16 et seq. Indiana‟s CHINS statutes also provide that a juvenile court

“may hold a hearing on a petition [for parental participation] concurrently with a

dispositional hearing or with a hearing to modify a dispositional decree,” which appears to be

what occurred in the instant case. Ind. Code § 31-34-16-4(a).

       The juvenile court‟s February 9, 2010, Dispositional Order reads, in pertinent part, as

follows:

       The Court[,] having considered the issue of Participation in a treatment
       program and having conducted a hearing, now Orders that a Participation


                                              8
       Decree should be entered.

       IT IS THEREFORE ORDERED, that [Father] do the following:
                                   ***
              SOURCE OF INCOME: Secure and maintain a legal and stable source
       of income . . . .
              SUITABLE HOUSING: Obtain and maintain suitable housing . . . .
                                   ***
              ESTABLISH PATERNITY: [Father] shall establish paternity as to
       [A.C.] and [E.C.].

                                           ***
       APPROVED AND MADE AN ORDER OF THE COURT THIS 9th day of
       February, 2010.
                                           ***
       The Court proceeds to disposition and adopts the Pre-Dispositional Report of
       [MCDCS] and incorporates same as the findings of the Court, including plan
       of permanency which is hereby ordered. The Court also orders the Parental
       Participation, which is made a part of the order.

                                            ***

       The Court now orders [A.C.] removed from the care of [F]ather . . . pursuant to
       this Dispositional Order.

Exhibits p. 14-17. Although we acknowledge that the juvenile court incorporated its

Participation Decree in its Dispositional Order, it is equally clear from the language cited

above that the Participation Decree issued in this case was a separate and distinct order from

the juvenile court‟s Dispositional Order, notwithstanding the fact the hearings on both

matters were conducted concurrently, as is authorized by Indiana Code section 31-34-16-4(a).

Moreover, MCDCS correctly points out this Court did not reverse and remand the juvenile

court‟s February 2010 Dispositional Order in our Memorandum Decision on Rehearing. See

In re A.C., 946 N.E.2d 94 (Ind. Ct. App. 2011), trans. denied. To the contrary, after

indicating that we “embrace[d]” the “bright-line rule announced in M.R. that a putative father


                                              9
should not be ordered to engage in CHINS-related services until his paternity is established,

we remanded the case with instructions that the juvenile court “issue a new Participation

Decree ordering “only that [Father] establish paternity of A.C.” Id., slip op. at 2 (emphasis

added). We thereafter affirmed our original opinion “in all other respects.” Id. (emphasis

added). At no point in Father‟s prior CHINS appeals did this Court order the juvenile court

to issue a new Dispositional Order to reflect a different removal date from Father.

Accordingly, we conclude that A.C. was removed, pursuant to a Dispositional Order, in

February 2010, approximately seven months prior to the MCDCS‟s filing of the involuntary

termination petition in September 2010, thus satisfying the jurisdictional mandates of Indiana

Code section 31-35-2-4(b)(2)(A). We therefore find no error.

       The judgment of the juvenile court is affirmed.

KIRSCH, J., and BARNES, J., concur.




                                             10
