In re the Involuntary Termination of H.T.

901 N.E.2d 1118, 2009 Ind. App. LEXIS 338
CourtIndiana Court of Appeals
DecidedFebruary 27, 2009
DocketNo. 49A02-0808-JV-750
StatusPublished
Cited by3 cases

This text of 901 N.E.2d 1118 (In re the Involuntary Termination of H.T.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Involuntary Termination of H.T., 901 N.E.2d 1118, 2009 Ind. App. LEXIS 338 (Ind. Ct. App. 2009).

Opinion

OPINION

BROWN, Judge.

Anthony Carbonatto ("Father") appeals the trial court's termination of his parental rights to his daughter, H.T. Father raises a dispositive issue for our review, which we revise and restate as whether the trial court clearly erred in determining that continuation of the parent-child relationship posed a threat to H.T.'s well-being.

We reverse and remand with instructions.

On August 29, 2003, approximately four months before H.T.'s birth, Father was incarcerated after violating the terms of his probation. Prior to his incarceration, Father had been in a relationship with H.T.'s mother, and he had attended birthing classes with her. During the time that Father was incarcerated, H.T.'s mother began a relationship with J.N., and they had a child, K.N., born October 15, 2005. However, despite H.T.'s mother's actions, Father called from prison roughly once per week and spoke with H.T.

While in prison, Father was informed that he could obtain an early release if he participated in certain programs, and he participated in these programs with the intention of being released and fathering his daughter. Because of his hard work, Father earned a Bachelor of Arts degree from Ball State University and the attendant three-year deduction in his sentence. (Finding of Fact #5; Appellant's App. at 11). He also completed a substance abuse program and parenting classes during his incarceration. Id.1

On August 10, 2006, the Marion County Department of Child Services filed a petition alleging that H.T. and K.N. were children in need of services. HT. had unexplained bruising under both eyes, and K.N. had severe diaper rash on her back, vagina, and thighs. The children were removed from the home and were placed with K.N.'s paternal grandparents. After the CHINS hearing, HT. was ordered to continue placement with K.N.'s grandparents. Because Father was incarcerated, he could not provide care to HT. at that time.

During the time he was incarcerated, Father sent letters to K.N.'s grandmother in an attempt to get to know her and her husband, to maintain a long distance relationship with H.T., and to thank the grandmother for her assistance with HT. Father also sent letters and cards to H.T. The grandmother did not respond to Father's letters, and she withheld the letters and cards from H.T. (Finding of Fact # 6; Appellant's App. at 12).

On November 14, 2007, a little over fifteen months after H.T.'s placement in K.N.'s grandparents' home, MCDCS filed a petition for involuntary termination of the parent-child relationship between Father and H.T. Father began communicating with Brian Robinson, H.T.'s guardian ad litem. On April 28, 2008, Father also sent a letter to MCDCS informing the family case manager that he was to be released from prison on May 1, 2008.

One hour after being released from prison, Father appeared at Robinson's office, a [1120]*1120fact that left Robinson "very impressed." (Tr. at 28). Robinson called MCDCS to inquire as to when Father would start court-ordered services. To Robinson's surprise, MCDCS did not want to meet with Father. (Tr. at 30). Father was later told that MCDCS would not provide services because such services were not in H.T.'s "best interest." (Tr. at 45). Indeed, Andrea Burton, a MCDCS employee, testified that the MCDCS "determined that in the best interest of [H.T.], we would not be offering no [sic] services to [Father] at this time." (Tr. at 46).

On June 4, 2008, approximately one month after Father's release, a termination hearing was held. Thereafter, the trial court terminated the parent-child relationship between Father and H.T.

The traditional right of a parent to establish a home and raise his child is protected by the Fourteenth Amendment of the United States Constitution. Bester v. Lake County Office of Family & Children, 839 N.E.2d 148, 147 (Ind.2005). Parental rights may be terminated when a parent is unable or unwilling to meet his parental responsibilities. Id. The purpose of terminating parental rights is not to punish a parent, but to protect the child. In re L.S., 717 N.E.2d 204, 208 (Ind.Ct.App.1999), trans. denied, cert. denied, 534 U.S. 1161, 122 S.Ct. 1197, 152 L.Ed.2d 136 (2002).

When reviewing a termination of parental rights, we will not reweigh the evidence or judge the credibility of the witnesses. Bester, 839 N.E.2d at 147. We will consider only the evidence and reasonable inferences therefrom that are most favorable to the judgment. Id. When reviewing findings of fact and conclusions thereon entered in a case involving a termination of parental rights, we apply a two-tiered standard of review. Id. First, we determine whether the evidence supports the findings. Id. Then, we determine whether the findings support the judgment. Id. The trial court's judgment will be set aside only if it is clearly erroneous. Id. "A judgment is clearly erroneous if the findings do not support the trial court's conclusions or the conclusions do not support the judgment." Id. (quoting In re R.J., 829 N.E.2d 1032, 1034 (Ind.Ct.App.2005)).

Ind.Code § 81-85-2-8(a) provides that "if the court finds that the allegations in a petition described in [Ind.Code § 31-35-2-4] are true, the court shall terminate the parent-child relationship." Ind.Code § 31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship involving a child in need of services must allege that:

(A) [OJne (1) of the following exists:
(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 I.C. § 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required, including a de-seription of the court's finding, the date of the finding, and the manner in which the finding was made; or
(if) after July 1, 1999, the child has been removed from the parent and has been under the supervision of a county office of family and children for at least fifteen (15) months of the most recent twenty-two (22) months;
(B) there is a reasonable probability that:
(i) the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied; or
[1121]*1121(i) the continuation of the parent-child relationship poses a threat to the well-being of the child;
(C) termination is in the best interests of the child; and
(D) there is a satisfactory plan for the care and treatment of the child.

The State must establish these allegations by clear and convincing evidence. Egly v. Blackford County Dep't of Pub. Welfare, 592 N.E.2d 1232, 1234-35 (Ind.1992); Doe v. Daviess County Div.

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901 N.E.2d 1118, 2009 Ind. App. LEXIS 338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-involuntary-termination-of-ht-indctapp-2009.