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MEMORANDUM DECISION - NOT FOR PUBLICATION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
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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
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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
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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
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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
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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
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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
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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
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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.
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Term. of Parent-Child Rel. of A.C., a minor child, and her Father, D.B. D.B. v. Indiana Dept. of Child Services, and Child Advocates, Inc.
Combined Opinion