FILED Oct 31 2019, 8:01 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Katharine Vanost Jones Curtis T. Hill, Jr. Vanderburgh County Public Attorney General of Indiana Defenders Office Robert J. Henke Evansville, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In Re the Termination of the October 31, 2019 Parent-Child Relationship of: Court of Appeals Case No. 19A-JT-670 T.W. (Minor Child) Appeal from the Vanderburgh and Superior Court T.K. (Father), The Honorable Brett J. Niemeier, Appellant-Respondent, Judge Trial Court Cause No. v. 82D04-1808-JT-1509
The Indiana Department of Child Services, Appellee-Petitioner
Baker, Judge.
Court of Appeals of Indiana | Opinion 19A-JT-670 | October 31, 2019 Page 1 of 22 [1] T.K. (Father) appeals the trial court’s order terminating his parent-child
relationship with his child, T.W. (Child). Finding that the Department of Child
Services (DCS) did not make reasonable efforts to reunify Father with Child,
thereby violating Father’s due process rights, we reverse and remand.
Facts [2] Child was born on March 6, 2017, to Father and K.W. (Mother). At the time
of Child’s birth, Father was incarcerated in Kentucky and was unable to
establish paternity. Child was removed from Mother’s care and custody on
March 7, 2017, because Mother had substance abuse issues, had unstable
housing, and was failing to comply with a Child In Need of Services (CHINS)
case involving Child’s older sibling. On March 9, 2017, DCS filed a petition
alleging that Child was a CHINS, and on April 5, 2017, the trial court granted
the petition as to Father.1 On the same day, the trial court held a dispositional
hearing related to Father, ordering him to contact DCS upon his transfer or
release from custody.
[3] Before Child was born, Father, knowing that Child was likely to be a CHINS
because of Mother’s ongoing substance abuse issues, contacted DCS,
acknowledged paternity, and requested assistance to be an active participant in
the case. After Child was born, Father spoke with a Family Case Manager
1 The trial court held a factfinding hearing with regard to Mother on April 18, 2017, and ultimately let stand its finding that Child was a CHINS. Mother is not a party to this appeal.
Court of Appeals of Indiana | Opinion 19A-JT-670 | October 31, 2019 Page 2 of 22 (FCM) and requested that Child be placed with paternal grandmother, who
lives in Kentucky. DCS began the process to place a ward out of state, but in
the meantime, Child remained in foster care.2
[4] On March 23, 2018, Father was released from incarceration and placed on
probation for four and one-half years. He called FCM Brandon Meredith on
March 29, 2018. During that phone call, Father provided FCM Meredith with
the address where he was staying at the time, but told the FCM that he was not
staying there permanently and was instead “couch surfin’.” Tr. Vol. II p. 20.
FCM Meredith inferred that Father was homeless.
[5] Father met with FCM Meredith at DCS on April 6, 2018. At that meeting,
FCM Meredith told Father he needed to establish paternity and obtain a
substance abuse evaluation. Father indicated that as he was recently released
from incarceration, he needed help to understand what to do and how to
comply with services. FCM Meredith agreed to provide parent aide services to
assist Father in finding employment and housing and to set up visitation. FCM
Meredith never made a referral for a parent aide.
[6] With respect to paternity, Father went to the Vanderburgh County Prosecutor’s
Office and obtained the necessary paperwork. An employee in that office
showed Father which sections of the forms he needed to fill out and told him to
2 The record does not reveal whether Father’s mother was ever approved as a caregiver. In any event, Child has never been placed with her.
Court of Appeals of Indiana | Opinion 19A-JT-670 | October 31, 2019 Page 3 of 22 deliver the documents to the FCM, who would fill out the rest of the
information (about Child, Child’s placement, and Mother) and return it to the
Prosecutor’s Office. The employee told Father that the FCM, rather than
Father, had to return it because there would be confidential information on the
form. The week of April 10, 2018, Father completed his sections of the forms
and took the packet to DCS.3 FCM Meredith evidently filled out the forms and
then called Father and told him to retrieve the packet. Father, under the
impression that DCS had to return the documents to the Prosecutor’s Office,
did not retrieve the paperwork. After two weeks passed with Father not
retrieving the documents, FCM Meredith put them in his file. FCM Meredith
was asked whether, at that point, he decided “that the child would be better off
with someone else,” and he responded, “Yes.” Id. at 82. He stated that it was
Father’s responsibility to contact him and that Father “did not inform me that I
was supposed to return it to the Prosecutor’s Office.” Id. at 84.
[7] FCM Meredith made a referral for drug screens. Though he had a current and
active phone number for Father, he did not call Father with the information,
instead mailing it to the address Father had provided in their initial phone call.
As Father was no longer staying there, he did not receive the paperwork.
[8] FCM Meredith initially made a referral for visitation at an agency. Father
arrived for the first visit thirty minutes early. He had bought a new outfit for
3 At some point as part of this process, Father provided a DNA sample, further evidencing his willingness to establish paternity. Tr. Vol. II p. 25.
Court of Appeals of Indiana | Opinion 19A-JT-670 | October 31, 2019 Page 4 of 22 himself and brought snacks and a Happy Meal for Child. Father checked in
and was told to wait. He waited until twenty minutes after the time the visit
was scheduled and learned at that point that FCM Meredith had cancelled the
visit two days earlier. FCM Meredith explained his decision to cancel as
follows:
. . . I did state that I would start visitation. I did put a referral in because that’s just usually how we start cases, or start with when a parent’s released. But then after thinking about it, I decided to cancel that referral because [Child] had never met [Father]. And I felt [that] if we went ahead and started a visit and started forming that bond and then if things didn’t go well, . . . and he just disappeared, then that would have had psychological effects on [Child]. So I did call [the agency] and cancel the visit . . . .
Id. at 71-72.
[9] Father and FCM Meredith did not have any contact from mid-April 2018 to
August 31, 2018, when Father was arrested for violating the terms of his
probation by failing to report to his probation officer. At that time, Father was
placed in a Vanderburgh County work release facility. During the period with
no contact between Father and DCS, FCM Meredith left voicemails for Father,
but Father did not return the calls.
[10] Father has a lengthy criminal history and has been incarcerated for most of the
last fifteen to sixteen years for various offenses, the majority of which are drug
related. His only stable housing as an adult was from 2007 and 2008 and then
Court of Appeals of Indiana | Opinion 19A-JT-670 | October 31, 2019 Page 5 of 22 from May to December 2012. Because of his many incarcerations, he has a
limited work history, and his last regular employment occurred in 2015-2016.
[11] On August 14, 2018, two weeks before Father’s placement in work release,
DCS had filed a petition to terminate his parental rights. 4 The termination
hearing took place on January 3, 2019. At that time, Father was employed with
a construction company and had ten months left to serve on work release. He
had completed a substance abuse evaluation and was attending substance abuse
counseling. He did not have a plan for housing upon his release, but he did
have a plan for employment:
I’ve got an associate’s degree in welding technology. . . . I haven’t been able to do much with it based on lack of job experience. So January 24th I start back to Ivy Tech and I’m takin’ welding courses again ‘cause I feel like I don’t wanna waste that two years that I’ve already used and I’m gonna refresh up on some pipe welding classes and some TIG and things like that. I had talked to the people in . . . the admissions and they . . . agreed that it would be a good idea that if I was interested in getting in the unions here that they train and do some of their journeymen through the Ivy Tech facility. So I could definitely make contacts through there. ‘Cause I really wanna be a pipe fitter.
Id. at 40-41. On February 20, 2019, the trial court granted DCS’s petition to
terminate the parent-child relationship. Father now appeals.
4 Mother had already signed a document voluntarily terminating her parental rights.
Court of Appeals of Indiana | Opinion 19A-JT-670 | October 31, 2019 Page 6 of 22 Discussion and Decision I. Standard of Review [12] Our standard of review with respect to termination of parental rights
proceedings is well established. In considering whether termination was
appropriate, we neither reweigh the evidence nor assess witness credibility.
K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will
consider only the evidence and reasonable inferences that may be drawn
therefrom in support of the judgment, giving due regard to the trial court’s
opportunity to judge witness credibility firsthand. Id. Where, as here, the trial
court entered findings of fact and conclusions of law, we will not set aside the
findings or judgment unless clearly erroneous. Id. In making that
determination, we must consider whether the evidence clearly and convincingly
supports the findings, and the findings clearly and convincingly support the
judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing
evidence that the child’s emotional and physical development are threatened by
the respondent parent’s custody.” Bester v. Lake Cty. Office of Family & Children,
839 N.E.2d 143, 148 (Ind. 2005).
[13] Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate
parental rights for a CHINS must make the following allegations:
(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.
Court of Appeals of Indiana | Opinion 19A-JT-670 | October 31, 2019 Page 7 of 22 (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 local office 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;
(B) that one (1) of the following is true:
(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 parent-child 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.
Court of Appeals of Indiana | Opinion 19A-JT-670 | October 31, 2019 Page 8 of 22 DCS must prove the alleged circumstances by clear and convincing evidence.
K.T.K., 989 N.E.2d at 1230.
II. Termination [14] The “involuntary termination of parental rights is the most extreme sanction a
court can impose on a parent because termination severs all rights of a parent to
his or her children.” In re I.A., 934 N.E.2d 1127, 1136 (Ind. 2010). Therefore,
termination “remains an ‘extreme measure’ and should only be utilized as a
‘last resort when all other reasonable efforts to protect the integrity of the
natural relationship between parent and child have failed.’” K.E. v. Ind. Dep’t of
Child Servs., 39 N.E.3d 641, 646 (Ind. 2015) (quoting Rowlett v. Vanderburgh Cty.
Office of Family & Children, 841 N.E.2d 615, 623 (Ind. Ct. App. 2006)). Indeed,
our Supreme Court has reversed a termination order where it was unable to
determine that all reasonable efforts were employed to unite a parent and child.
I.A., 934 N.E.2d at 1136.
[15] As a matter of statutory elements, it has been established that DCS is not
required to provide parents with services prior to seeking termination of the
parent-child relationship. E.g., In re B.H., 44 N.E.3d 745, 752 n.3 (Ind. Ct. App.
2015). However, parents facing termination proceedings are afforded due
process protections. Here, Father did not raise a due process argument to the
trial court, nor does he make one on appeal. But “we have discretion to address
such [due process] claims, especially when they involve constitutional rights,
the violation of which would be fundamental error.” In re D.H., 119 N.E.3d
Court of Appeals of Indiana | Opinion 19A-JT-670 | October 31, 2019 Page 9 of 22 578, 586 (Ind. Ct. App. 2019), aff’d in relevant part on reh’g, 122 N.E.3d 832 (Ind.
Ct. App. 2019), trans. denied; S.B. v. Morgan Cty. Dep’t of Pub. Welfare, 616
N.E.2d 406, 407 (Ind. Ct. App. 1993) (holding that the “constitutionally
protected right of parents to establish a home and raise their children mandates
that the failure of a trial court to require compliance with any condition
precedent to the termination of this right constitutes fundamental error which
this court must address sua sponte”) (internal citations omitted). Here, Father’s
substantive due process right to raise his child and his procedural due process
right to fair proceedings are at issue; therefore, we elect, sua sponte, to consider
whether those rights were protected in this case.
[16] When the State seeks to terminate parental rights, it must do so in a manner
that meets the requirements of due process. In re G.P., 4 N.E.3d 1158, 1165
(Ind. 2014). The nature of the process due in any proceeding is governed by a
balance of three factors: “the private interests affected by the proceeding; the
risk of error created by the State’s chosen procedure; and the countervailing
governmental interest supporting use of the challenged procedure.” D.H., 119
N.E.3d at 588. This Court has described those interests in the context of
termination proceedings as follows:
The private interest affected by the proceeding is substantial—a parent’s interest in the care, custody, and control of his or her child. And the State’s interest in protecting the welfare of a child is also substantial. Because the State and the parent have substantial interests affected by the proceeding, we focus on the risk of error created by DCS’s actions and the trial court’s actions.
Court of Appeals of Indiana | Opinion 19A-JT-670 | October 31, 2019 Page 10 of 22 K.M. v. Ind. Dept. of Child Servs., 997 N.E.2d 1114, 1120 (Ind. Ct. App. 2013)
(internal citations omitted).
[17] We find the D.H. Court’s discussion of due process in the context of
termination proceedings particularly relevant and helpful in this case:
In looking at the risk of error created by DCS’s actions, we keep in mind that “due process protections at all stages of CHINS proceedings are vital because every CHINS proceeding has the potential to interfere with the rights of parents in the upbringing of their children.” J.A. v. Ind. Dep’t of Child Serv. (In re G.P.), 4 N.E.3d 1158, 1165 (Ind. 2014) (quotations and citations omitted). “[T]hese two proceedings—CHINS and TPR—are deeply and obviously intertwined to the extent that an error in the former may flow into and infect the latter.” Id. And “[a]ny procedural irregularities in a CHINS proceeding may be of such significance that they deprive a parent of procedural due process with respect to the termination of his or her parental rights.” In re S.L., 997 N.E.2d at 1120; see also A.S. v. Ind. Dep’t of Child Serv. (Matter of C.M.S.T.), 111 N.E.3d 207, 213 (Ind. Ct. App. 2018) (holding that “the chaotic and unprofessional handling” of a CHINS case violated the parents’ due process rights, requiring reversal of the termination order).
For example, in Matter of C.M.S.T., we held that procedural irregularities in the CHINS case—such as multiple FCMs, inappropriate behavior by FCMs, and apparent bias of FCMs— contributed to the parents’ non-compliance such that termination of their parental rights amounted to a denial of their due process rights. 111 N.E.3d at 213, 14. See also, In re A.P., at 1117 (finding parents’ due process rights were violated in a termination action where DCS made multiple procedural errors, such as failing to provide parents with copies of case plans and filing CHINS and termination petitions that did not meet statutory requirements); cf. N.P. v. Ind. Dep’t of Child Serv. (In re R.P.), 949 Court of Appeals of Indiana | Opinion 19A-JT-670 | October 31, 2019 Page 11 of 22 N.E.2d 395, 403 (Ind. Ct. App. 2011) (citing J.I. v. Vanderburgh Cty. Off. of Family & Children (In re A.I.), 825 N.E.2d 798, 816 (Ind. Ct. App. 2005) (noting that one procedural deficiency alone may not result in a due process violation), trans. denied).
We must also consider the general proposition that, “if the State imparts a due process right, then it must give that right.” In re C.G., 954 N.E.2d at 918 (citing In re A.P., 734 N.E.2d at 1112). . . . And DCS’s own policy manual, of which we take judicial notice, see Evid. R. 201(a), provides unequivocal directions to DCS regarding the provision of services. First, it states that DCS “will provide family services to all children and families with an open case . . . .” Indiana Dep’t of Child Serv. Child Welfare Policy Manual (“the Manual”), Ch. 5, Sec. 10, [https://www.in.gov/dcs/files/5.10%20Family%20Services.pdf (last visited Oct. 21, 2019)]. Next, Chapter 5, Section 10 of the Manual states:
DCS will make appropriate service referrals on behalf of the . . . family . . . DCS will regularly communicate with all service providers throughout the life of the case to discuss the family’s progress and any concerns. . . .
DCS will reassess the strengths and needs of the child and family throughout the life of the case and will adjust services, if necessary, to meet identified needs. DCS will continue to offer services to the . . . family regardless of participation[, until the court . . . dismisses the [CHINS] case, or rules that reasonable efforts to reunify the family are not required.]
***
The FCM will: . . . (3) Collaborate with the family and the CFT [Child and Family Team] to identify needed services . . . Court of Appeals of Indiana | Opinion 19A-JT-670 | October 31, 2019 Page 12 of 22 [7] Monitor the family’s progress by: (a) maintaining contact with services providers to assess the family’s level of participation in services . . . [10] Discuss the family’s participation and progress regarding case goals and results of any new assessments . . . and adjust services and/or service levels as necessary . . . [11] Document in [the case management system] the family’s progress, reasons for service type or intensity changes, and if applicable, reasons why services were not offered or were stopped.
The FCM will: . . . [4] Follow up with service providers to evaluate the family’s response to the change and/or removal of services.
Id. (emphasis added) (emphases original).[5]
D.H., 119 N.E.3d at 588-89. In the end, the D.H. court concluded that “[t]he
significant procedural irregularities in the CHINS case created a risk of the
erroneous filing of a petition to terminate Mother’s parental rights to Children,
in violation of Mother’s due process rights.” Id. at 591. The court reversed the
termination order and remanded for reinstatement of the CHINS cases,
reexamination of the requirements for Mother’s reunification with her children,
and entry of a revised dispositional order outlining the services she needed to
complete to reunify with the children.
5 The DCS Policy quoted in D.H. has been amended since D.H. was published; we have incorporated those changes in the bracketed portions of the quotation.
Court of Appeals of Indiana | Opinion 19A-JT-670 | October 31, 2019 Page 13 of 22 [18] In addition to due process protections, we note that the termination statute
requires that DCS allege one of three things: (1) the child has been removed
from the parent for at least six months under the dispositional decree; (2) a
finding has been entered that no reasonable efforts for family preservation or
reunification are required; or (3) the child has been removed from the parent for
at least fifteen of the most recent twenty-two months. I.C. § 31-35-2-4(b)(2)(A).
The second prong of this statute is important because it directly relates the
termination petition to the general requirement that DCS “make reasonable
efforts to preserve and reunify families[.]” Ind. Code § 31-34-21-5.5(b). That
requirement applies in all CHINS cases except for those that fall under Indiana
Code section 31-34-21-5.6(b), which describes the limited circumstances in
which no reasonable efforts are required. Unless that statutory exception
applies, DCS is obligated to make reasonable efforts to preserve and reunify
families in CHINS proceedings. By incorporating the no reasonable efforts
statute into the termination statute, the General Assembly has necessarily
incorporated that same DCS obligation (as well as its exception) into
termination proceedings.
[19] All of the above lead us to one conclusion: for a parent’s due process rights to
be protected in the context of termination proceedings, DCS must have made
reasonable efforts to preserve and/or reunify the family unit in the CHINS case
(unless the no reasonable efforts exception applies). What constitutes
“reasonable efforts” will vary by case, and as noted above, it does not
necessarily always mean that services must be provided to the parents. In the
Court of Appeals of Indiana | Opinion 19A-JT-670 | October 31, 2019 Page 14 of 22 end, we think that it does not ask too much of DCS to behave reasonably under
such grave circumstances.
[20] Turning to this case, Father’s interest in being involved predates Child’s birth,
when he first reached out to DCS. Father then contacted FCM Meredith
within a week of his release from incarceration, and they met shortly thereafter.
In the early days of their interactions, there are four relevant DCS efforts to
consider: Father’s establishment of paternity; drug screens; visits; and a referral
for a parent aide.
Establishment of Paternity
[21] First, we will consider DCS’s requirement that Father establish paternity.
Nothing in the record indicates that he was unwilling or reluctant to do so;
indeed, the record shows that he acknowledged paternity to DCS before Child
was even born.
[22] When Father went to the Prosecutor’s Office to obtain the necessary
paperwork, an employee showed Father which sections of the forms he needed
to fill out and told him to deliver the documents to the FCM, who would fill
out the rest of the information (about Child, Child’s placement, and Mother)
and return it to the Prosecutor’s Office. The employee told Father that the
FCM, rather than Father, had to return it because there would be confidential
information on the form. Father completed his sections of the forms and took
the packet to DCS.
Court of Appeals of Indiana | Opinion 19A-JT-670 | October 31, 2019 Page 15 of 22 [23] FCM Meredith evidently filled out the forms and then called Father and told
him to retrieve the packet.6 The paternity paperwork sat at the DCS front
counter for two weeks, at which point FCM Meredith placed it in Father’s file
and took no further action on the matter. At the termination hearing, FCM
Meredith complained that Father “did not inform me that I was supposed to
return [the documents] to the Prosecutor’s Office.” Tr. Vol. II p. 84.
[24] It is clear that Father was caught between a proverbial rock and hard place, as
he received contradictory orders from two different government agencies,
receiving no help from his FCM to sort out the situation. At the termination
hearing, Father quite ably described his frustration and confusion:
. . . [B]oth of the times that I’ve talked to the . . . lady that works in the Prosecutor’s Office, she has told me both times that that is not my responsibility. She told me that I’m not supposed to even—I’m only supposed to fill in the parts that are highlighted and I’m supposed to leave it at the DCS. And if I did agree [to retrieve the paperwork from DCS and return it to the prosecutor’s office], which I did, I felt more pressure from that not knowin’ how to actually answer the question. Because I feel like there’s so many questions that I don’t know the answers to. . . . Like when one person’s tellin’ me somethin’ and another person’s tellin’ me somethin’ different, I don’t really know how— ‘cause if [DCS] lies, it’s like a dog chasin’ [its] tail, because there’s nobody gives you no answer. Somebody tells you to do somethin’ different every way you go, then whenever you try to
6 The record is slightly unclear, but it appears that at some point, Father and FCM Meredith talked about the paternity paperwork. Father, feeling confused and wanting to be agreeable, told the FCM that he would return the paperwork to the Prosecutor’s Office, though he never did so because of the advice he got from the employee at the Prosecutor’s Office.
Court of Appeals of Indiana | Opinion 19A-JT-670 | October 31, 2019 Page 16 of 22 actually get to the answer, you’ve already done went down a mile of road to try to figure it out, and you still haven’t got an answer.
Id. at 31.
[25] Father did exactly what he was supposed to do to establish paternity. He went
to the prosecutor’s office, retrieved the appropriate paperwork and got advice
about how to fill it out, filled it out, and took it to DCS. FCM Meredith filled
out DCS’s portion of the paperwork, left it for Father to pick up, and took no
further action on it. He offered no assistance or guidance to Father.
[26] Perhaps most damning of all, it was at this extraordinarily early juncture in
Father’s post-incarceration life (and in his involvement with the CHINS case)
when FCM Meredith decided that Child would be better off with someone else.
Rather than offering assistance to Father, FCM Meredith wrote him off, and
made only limited efforts at reunification from this point forward.
Drug Screens
[27] Next, we note that FCM Meredith did make a referral for drug screens for
Father. When he first met with Father and heard Father describe his living
situation, FCM Meredith inferred that Father was “basically homeless[.]” Tr.
Id. at 67. Notwithstanding this knowledge, and notwithstanding the fact that
the FCM had an active and current phone number for Father, FCM Meredith
did not call Father to tell him about the drug screens. Instead, he merely
mailed that information to the address provided by Father at that initial
meeting. Because Father was not actually living at that address, he never
Court of Appeals of Indiana | Opinion 19A-JT-670 | October 31, 2019 Page 17 of 22 received that information and never provided a drug screen. Given that FCM
Meredith was aware that Father was homeless, we believe that it was
unreasonable that the FCM did not call Father to inform him about the drug
screens. With this course of action, the FCM was setting Father up to fail.
Visits
[28] Perhaps one of the most heartbreaking parts of the CHINS case was Father’s
experience regarding visitation with Child. FCM Meredith made a referral for
agency supervised visits and a first visit was scheduled. Things did not go as
planned.
I went to the visit. I was there about a half hour early. And I had bought like—I was nervous. About as nervous as I am right now. I mean, I bought an outfit. I bought clothes, snacks, a Happy Meal. And I sat there and I waited for the people at [the agency]. And . . . I went to the window and . . . I asked if I was supposed to have a visit. I mean, was I supposed to check in for my visit and they said “No, you just sit tight. Hang out. It’s still early.” . . . So I sat on it until about—probably about twenty minutes after when [Child] was supposed to be there. So finally I went and I said, “Could somebody please give me some sort of answer on what’s goin’ on here, ‘cause I don’t know.” So then the guy that came to the window said, “Let me check on what’s goin’ on here.” And he went and checked in the computer. He said that a couple days prior to this visit that I was supposed to have, he said that somebody had removed my case from their computer, that I was no longer to have services through [the agency].
Id. at 25-26.
Court of Appeals of Indiana | Opinion 19A-JT-670 | October 31, 2019 Page 18 of 22 [29] In other words, although FCM Meredith initially told Father he would have
visits, going so far as to make a referral for the visits and allow a visit to be
scheduled, he then changed his mind. FCM Meredith explained his change of
mind as follows:
. . . I did state that I would start visitation. I did put a referral in because that’s just usually how we start cases, or start with when a parent’s released. But then after thinking about it, I decided to cancel that referral because [Child] had never met [Father]. And I felt [that] if we went ahead and started a visit and started forming that bond and then if things didn’t go well, . . . and he just disappeared, then that would have had psychological effects on [Child]. So I did call [the agency] and cancel the visit . . . .
Id. at 71-72. Here, again, we have the FCM deciding from the outset that Child
would be better off in foster care and that Father did not deserve a chance to be
a parent. This course of events set Father up to fail. If he was unable to visit
Child, then he was unable to bond with Child, which ultimately worked against
him during the termination proceedings. We do not find FCM Meredith’s
efforts in this regard to be reasonable.
Parent Aide
[30] Finally, at the first meeting with FCM Meredith, Father asked for help with his
transition to life following his release from incarceration and with compliance
with services. FCM Meredith agreed that in this situation, a parent aide would
have been helpful for Father, and said that he would make a referral for one.
While FCM Meredith made referrals for drug screens (which he did not call
Father about) and visits (which he changed his mind about and cancelled), he Court of Appeals of Indiana | Opinion 19A-JT-670 | October 31, 2019 Page 19 of 22 never made a referral for a parent aide. Had Father had a parent aide in place,
it is very likely that he would have gotten the help needed to establish paternity,
since the FCM was unable or unwilling to assist him with that process.
[31] It is true that Father lost contact with DCS and with his probation officer for
several months before he was re-arrested. And yes, this must be taken into
consideration. But what must also be taken into consideration are the
circumstances of Father’s life at that time. He had just been released from what
basically amounted to sixteen years in prison. As he explained,
the thing that’s hard for people to understand for me is, like the first few months are real important for me because it’s hard to try to micro-manage your life. Whenever somebody pays your water bill, your electric bill, they give you the sheets you sleep on, they tell you where your job’s at, they tell you all these different things, and it’s been happenin’ for so long that whenever you come into the real world you’re supposed to seek all these things on your own, it’s like a vacuum.
[I]t’s been the single hardest thing I’ve ever done in my life.
Tr. Vol. II p. 34-35.
[32] Father freely admitted that he lost communication with everyone involved in
the case, explaining that his challenges got the better of him:
It was hard. I don’t know if it’s just me internalizin’ things, but I feel like things are abrasive, always abrasive towards me. Things snowball. So then like I didn’t [meet with his probation officer]. Court of Appeals of Indiana | Opinion 19A-JT-670 | October 31, 2019 Page 20 of 22 And then maybe I didn’t make it to go pick up the paperwork or I agreed to do somethin’ that I knew I wasn’t gonna—you know what I’m sayin’? So then those things start to add up and then I started feelin’ ashamed of myself. And then I start dealin’ with stuff like depression.
I was depressed. ‘Cause I’m a man of my word. I truly, genuinely believe that if [I] look in your eyes and I make an agreement with you that I’m supposed to stand on it. So then whenever I can’t then it starts makin’ me look to the side. And those things, whenever they start to pile up, I feel like—even if it’s only a couple things to a couple different people, then I feel like what is my answer, how do I get away from that. Because I’ve already got into it.
Id. at 36, 42.
[33] Father was released from sixteen years of incarceration. He had no job, no
housing, and no real supports. It should have been no surprise to FCM
Meredith that Father would, at times, flounder. Father should have been given
more assistance in this situation—especially since he explicitly asked for it.
Instead, FCM Meredith decided, almost from the outset, that Child would be
better off in foster care, making no genuine efforts to provide Father with the
support and services he so desperately needed.
[34] When stepping back and looking at this situation in its totality, we can only
conclude that DCS did not make reasonable efforts to reunify Father with
Child. Likewise, we can only conclude that the insufficient process employed
Court of Appeals of Indiana | Opinion 19A-JT-670 | October 31, 2019 Page 21 of 22 in the CHINS case created a risk of the erroneous filing of a petition to
terminate Father’s parental rights to Child, in violation of Father’s due process
rights.
[35] We acknowledge the worthy desire to provide Child with permanency. But we
must also consider the sacrosanct legal relationship between parent and child,
the severing of which is one of the most extreme actions taken in our legal
system. In this case, DCS wholly failed to make reasonable efforts to preserve
that relationship. Father is entitled to try to become a safe and appropriate
parent to Child, and DCS is required to help him do so. Therefore, we reverse
and remand.
[36] The judgment of the trial court is reversed and remanded with instructions to
reopen the CHINS case, reexamine the requirements for Father’s reunification
with Child, and enter a new dispositional order outlining the services Father
must comply with to effect reunification.
Kirsch, J., and Crone, J., concur.
Court of Appeals of Indiana | Opinion 19A-JT-670 | October 31, 2019 Page 22 of 22