Perry v. Elkhart Office of Family & Children

SULLIVAN, Judge,

concurring in result.

The May 9, 1995 CHINS dispositional order was premised upon the admission of the “Parent, guardian, or custodian” with regard to the allegations of the CHINS Petition.4 It is clear that, with respect to K.H, the only parent making such admission was Christie Harris, the mother.5 It is equally clear that Michael Perry was not a party to the CHINS proceeding, and therefore, of course, did not admit such allegations. As a matter of fact, in the termination of parental rights decree on December 10, 1996, the court specifically found that on May 9,1995, at the time of the CHINS adjudication, “and until, May, 1996 the identity of [K.H.’s] alleged father was unknown.” Record at 24.

*1307Perry was sentenced and was incarcerated on April 4,1995, one month before the dispo-sitional CHINS decree. For this reason it is clear that Perry cannot be held responsible for any of the adverse conditions which led to the removal of K.H. from the home, unless one such allegation was that K.H. was not being supported, whether by the then-unknown father, or anyone else. Again, however, we do not know what the allegations were or what the reasons for removal of the children were. We cannot assume, therefore, that Perry’s nonsupport constituted one of the grounds for removal of K.H. It follows that as to Perry, it cannot be validly concluded that, as required by I.C. 31-6-5-4(e)(2)(A), now I.C. 31-35-2-4(b)(2)(B)(i), “the conditions that resulted in the child’s removal ... will not be remedied.” (Emphasis supplied)

I agree that Wagner v. Grant County Dep’t Of Public Welfare (1995) Ind.App., 653 N.E.2d 531, and Tipton v. Marion County Dep’t. Of Public Welfare (1994) Ind.App., 629 N.E.2d 1262, stand for the proposition that, although only one parent has physical custody, removal of the child from that home and placement in a foster home constitutes effective removal from the custody of the other parent as well. This is true when, as here and as in Wagner, the non-eustodial parent is incarcerated. Nevertheless, such principle only serves to meet the statutory' requirement of I.C. 31-6-5-4(c)(1), now I.C. 31-35-2-4(b)(2)(A), that the child must have been removed from the parent for at least six months. It does not bear upon whether or not the parent in question caused or contributed to the adverse conditions in the environment or whether those conditions are likely, or not, to be remedied by him. Tipton v. Marion County D.P.W., supra.

To be sure, the evidence at the termination hearing reflected that prior to the CHINS removal there were times when food, diapers and bottles were needed and Christie did not have the necessary funds. Perry could have provided such by way of support because he was employed full-time making $240 per week, but again we do not know whether this factor was a stated reason for the removal of K.H. from the mother’s home.

Be that as it may, the order terminating Perry’s parental rights may be validly premised upon the trial court’s specific finding that:

“10. Michael is incarcerated and will be until at least May 18, 1997. Michael has never provided a home for Kelly, never paid any support, cannot provide a home now, has no relationship with Kelly, and placement with him in the future poses a threat to the well-being of [K.H.] because he was an irresponsible parent to her and is a convicted felon.” (Emphasis supplied.) Record at 95.

This finding, taken in the context of all the other evidence, demonstrates that the statutory requirement of I.C. 31-6-5-4(c)(2)(B), now I.C. 31-35-2-4(b)(2)(B)(ii), has been met, as an alternative to the basis supplied by the provision relating to the likelihood that the conditions resulting in the removal of the child will not be remedied. Because continuance of Perry’s relationship, or lack thereof, poses a threat to the well-being of the child, the trial court’s judgment was. appropriate.

I therefore concur in the affirmance of the judgment.

. Neither the CHINS petition nor the substance of the allegations, which, when admitted, led to the removal of K.H. from the home, are found in .the record before us. We therefore do not know what those allegations were. Accordingly, we do not know what adverse conditions existed which resulted in the removal of K.H. from the home.

.Eric Cassity, who lived with Christie Harris, was a party to the CHINS proceeding because he and Christie were the parents of a second child who, along with K.H.,' was the subject of the CHINS removal. It is possible, therefore, that Eric's admission as to the allegations of the CHINS petition might have constituted an admission as to the conditions within the household and be attributed to him as a "custodian” of K.H.