M.W. v. Indiana Department of Child Services

943 N.E.2d 848, 2011 Ind. App. LEXIS 213
CourtIndiana Court of Appeals
DecidedFebruary 18, 2011
DocketNo. 32A01-1007-JT-322
StatusPublished
Cited by24 cases

This text of 943 N.E.2d 848 (M.W. v. Indiana Department of Child Services) 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
M.W. v. Indiana Department of Child Services, 943 N.E.2d 848, 2011 Ind. App. LEXIS 213 (Ind. Ct. App. 2011).

Opinion

OPINION

BARNES, Judge.

Case Summary

M.W. (“Father”) appeals the termination of his parental rights to his child, M.W. We reverse.

Issue

Father raises two issues, which we consolidate and restate as whether the Department of Child Services (“DCS”) presented clear and convincing evidence to support the termination of Father’s parental rights.

Facts

M.B. (“Mother”) and Father had a child, M.W., who was born in April 2006. Mother and Father initially lived together, but Father moved out in 2008. In July 2008, DCS became involved with Mother and M.W. because Mother had been using morphine, and they entered into an informal adjustment. In September 2008, Mother was arrested for a probation violation, and DCS removed M.W. and placed her in foster care. At the time of the removal, Father was travelling outside of the State for his employment. DCS filed a petition alleging that M.W. was a child in need of services (“CHINS”), and Mother agreed that M.W. was a CHINS.

Shortly thereafter, Father was incarcerated on charges of intimidation and false informing. In October 2008, Father was found guilty of Class D felony intimidation and Class B misdemeanor false informing for actions he committed prior to the start of the CHINS action. He was sentenced to 365 days in jail with 275 days suspended and 245 days on probation.

In December 2008, the trial court in the CHINS action ordered Father to participate in a variety of services, including: cooperate with the DCS and service providers and follow all recommendations; participate in home based services; complete a psychological evaluation and follow all recommendations; participate in visitation with M.W.; reimburse DCS for the cost of services; resolve all pending criminal matters; submit to random drug screens; obtain a drug and alcohol assessment and follow all recommendations; participate in a domestic violence class; and establish custody in a court proceeding.

In February 2009, the DCS case manager advised Mother that a petition to terminate her parental rights “could be filed [after] fifteen months if she failed to follow through with the services recommended.” Tr. p. 106. In March or April 2009, the DCS internally decided to move toward termination of Mother and Father’s parental rights. However, in late April 2009, the DCS filed a permanency plan listing reunification with Mother and Father as the plan for M.W., and in early May 2009, the trial court approved that permanency plan. Despite the approved plan, on May 18, 2009, the DCS filed a petition to termi[851]*851nate Mother and Father’s parental rights to M.W.

In May 2009, the DCS also filed a contempt petition against Mother and Father. Regarding Father, the DCS case manager testified that Father had failed to establish court-ordered custody of M.W., failed to provide documentation of his mental health evaluation, failed to show up for random drug tests, and failed to consistently visit with M.W. The trial court found Father in contempt and ordered him to strictly comply with the prior orders.

Father was incarcerated from May until early August 2009, after he was sentenced to serve 180 days for a probation violation. Father contacted DCS immediately upon his release and requested permission to see M.W., but DCS denied his request. At a hearing on August 6, 2009, DCS requested permission from the trial court to discontinue services, and the trial court granted that request.

In September 2009, the trial court held a hearing on DCS’s petition to terminate parents’ parental rights. Both Father and Mother appeared for the hearing. At the end of the first day of the hearing, the trial court informed DCS that it had “a really serious problem with [DCS] telling these [parents] on a day certain in April that their plan is to reunify them and then without any justifiable reason filing a termination” petition. Id. at 168-64. The trial court stated that the DCS’s procedure was “not professional ].” Id. at 164. The trial court noted that, as of that time, the DCS had not met its burden of showing by clear and convincing evidence that the parents’ rights should be terminated.

On October 1, 2009, the parties filed an amendment to the disposition/parental participation plan (“Amended Plan”), which the trial court approved. The Amended Plan provided, in part:

The parents understand that when a child is out of the parents care for 15 of the past 22 months that it is mandatory that the DCS file for termination of parental rights. Upon entering this agreement, DCS agrees to continue the present TPR_ The parents are being given one last chance to STRICTLY COMPLY with the terms of the orders .... If the parents fail to STRICTLY comply, DCS will amend its Involuntary Petition for Termination of Parental Rights to include the noncompliance and proceed with the involuntary termination of parental rights....

DCS’s Exhibit 5 p. 2. The Amendment required Father to: obtain a suitable residence; continue his employment; cooperate with DCS; participate in home based counseling; comply with recommendations of his psychological evaluation; participate in routine visitations with M.W.; reimburse DCS; resolve his pending criminal matters; submit to random drug screens; comply with the recommendations made in his drug/alcohol evaluation; participate in a domestic violence class; and file a paternity petition. At the time of the Amendment, Father was expecting to be sentenced to home detention in his pending criminal case for Class D felony fraud and Class D felony theft, which related to acts committed prior to the start of the CHINS action.

In November 2009, Father admitted himself to the hospital for treatment of depression and suicidal thoughts. In January 2010, Father turned himself in on the fraud and theft convictions. Although Father was anticipating being sentenced to home detention, Father was sentenced to one year in the Department of Correction. Father was scheduled to be released from jail on July 8, 2010, and to be on parole until December 2010.

[852]*852The trial court held another hearing on DOS’s petition to terminate Mother and Father’s parental rights on April 29, 2010. The DCS case manager testified that M.W. was attached and bonded with Father. Father was appropriate in his contact with her during visitations. Father completed anger management classes. He had also been evaluated for domestic violence counseling and was not referred to counseling as a result. Father submitted to random drug screens, and he never had a positive drug screen result. He also obtained a drug and alcohol assessment and followed all recommendations. Father completed a psychological evaluation and complied with all recommendations.

During the pendency of the CHINS action, Father was employed much of the time. Father apparently lost his job due to his incarceration and, when not incarcerated, Father actively sought employment. Before his most recent incarceration, Father was accepted as a student at Ivy Tech.

Father participated in visitations with M.W., but missed some visitations. M.W.’s therapist reported that M.W. expressed positive feedback about visitations with Father. Father kept DCS informed regarding his efforts to resolve his pending criminal matters, and Father had resolved all pending criminal matters except for completing his sentence of incarceration for the fraud and theft convictions. Although Father had completed a paternity affidavit when M.W.

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Related

K.M. v. Indiana Department of Child Services
997 N.E.2d 1114 (Indiana Court of Appeals, 2013)
In Re CM
963 N.E.2d 528 (Indiana Court of Appeals, 2012)
In Re MW
943 N.E.2d 848 (Indiana Court of Appeals, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
943 N.E.2d 848, 2011 Ind. App. LEXIS 213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mw-v-indiana-department-of-child-services-indctapp-2011.