ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
James J. Krajewski Eugene M. Velazco, Jr.
Munster, Indiana Merrillville, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 45S03-0509-JV-435
ROBERT BESTER,
Appellant (Petitioner below),
v.
LAKE COUNTY OFFICE OF FAMILY
AND CHILDREN,
Appellee (Respondent below).
_________________________________
Appeal from the Lake Superior Court, No. 45D06-0211-JT-104
The Honorable Mary Beth Bonaventura, Senior Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 45A03-0410-JV-454
_________________________________
December 20, 2005
Rucker, Justice.
Case Summary
The trial court terminated Robert Bester’s parental rights on the ground that the parent-
child relationship posed a threat to the well being of the child. The Court of Appeals affirmed.
Concluding that the evidence does not clearly and convincingly demonstrate that Bester’s
parental rights should be terminated, we reverse the judgment of the trial court.
Facts and Procedural History
On June 16, 2001, a son (referred to as “Child”) was born out of wedlock to Lavita Israel
(Mother) and Robert Bester (Father). Father was present at St. Catherine’s Hospital at the time
of Child’s birth. Because Child tested positive for cocaine, Hospital authorities notified the Lake
County Office of Family and Children Services (“OFC”), which assumed jurisdiction over Child.
See Ind. Code § 31-34-2-3. Five days later OFC gave Hospital the authority to release Child to
the temporary custody of foster parents. See Ind. Code § 31-34-4-4. Thereafter OFC filed a
petition seeking that Child be declared a Child in Need of Services (“CHINS”). See Ind. Code §
31-34-9-1. On October 12, 2001, after a hearing at which Father appeared and Mother did not,
the trial court entered an order granting the CHINS petition. The order included a case plan for
reunification that provided in relevant part:
Mother and alleged father to submit to psychological evaluations
and follow through with recommended treatment. Mother and
alleged father to submit to random drug screens. Mother and
alleged father to successfully complete parenting classes. Mother
and alleged father to visit with the child regularly. Mother to
submit to a substance abuse evaluation and follow through with
recommended treatment. Alleged father to become adjudicated. 1
Appellant’s App. at 89. Child remained in the custody of foster parents.
The record shows that even before the entry of the case plan Father was regularly visiting
with Child. Pursuant to the plan the initial visits were supervised. However those visits were so
successful that sometime in 2002 OFC permitted Father to exercise unsupervised weekend visits.
Father was living with his own parents in East Hazel Crest, Illinois. Consequently, Child spent
every weekend with his father, grandparents, and other relatives. A later home study described
the living arrangements in part as follows:
1
The record is silent on whether Mother or Father executed a paternity affidavit, see Indiana Code § 16-
37-2-1.1, or whether either party filed a Petition to Establish Paternity, see Indiana Code § 31-14-2-1, et
seq. In any event the record shows that Father was subsequently adjudicated Child’s biological parent as
the result of DNA testing.
2
The house is situated in a private wooded area that consists of
other single-family homes in good upkeep. Mr. Bester’s parents
have resided in the home for the past eight years.
...
The Bester home was observed to be clean, spacious and ade-
quately furnished. The home is equipped with working smoke and
carbon monoxide detectors. There were no hazards observed that
would prevent the placement of [Child] into the home. The home
is located in a private neighborhood and is near parks, schools and
shopping.
Appellant’s App. at 26-27. In addition to visiting with Child regularly, Father also complied
with other requirements of the case plan, including submitting to psychological evaluations,
random drug screens, and successfully completing parenting classes.
In October 2002, the OFC initiated a referral through the Interstate Compact on the
Placement of Children requesting the State of Illinois to “study the home of Robert Bester [] for
the possible placement of 1-year-old [Child].” Appellant’s App. at 24. 2 The Illinois investigator
assigned to the case completed a home study that “d[id] not approve the placement of [Child]
with his father.” Appellant’s App. at 35. The study cited Father’s history of arrests and
convictions between 1994 and 2000, some of which involved controlled substances. The home
2
The Interstate Compact on the Placement of Children, enacted in all fifty states, provides a mechanism
by which children can be sent to new foster or adoptive homes across state lines. See Ind. Code § 12-17-
8-1. It includes a reporting requirement that allows a receiving state to investigate the fitness of the
proposed home and to determine whether the child may be placed according to a proposed plan. Id.
Whether the ICPC applies to the interstate reunification of children with natural parents is an open
question. Some jurisdictions have concluded the Compact does apply under those circumstances. See,
e.g., Ariz. Dep’t of Econ. Sec. v. Leonardo, 22 P.3d 513 (Ariz. 2001); Dep’t of Children & Families v.
Benway, 745 So.2d 437 (Fla. Dist. Ct. App. 1999); Adoption of Warren, 693 N.E.2d 1021 (Mass. App.
Ct. 1998); K.D.G.L.B.P. v. Hinds County Dep’t of Human Servs., 771 So.2d 907 (Miss. 2000); Matter of
Tsapora Z., 195 A.D.2d 348 (N.Y. App. Div. 1993). State ex rel. Juvenile Dep’t of Clackamas County v.
Smith, 811 P.2d 145 (Or. Ct. App. 1991). Other jurisdictions have taken a contrary view concluding the
ICPC does not apply. See McComb v. Wambaugh, 934 F.2d 474 (3rd Cir. 1991); Ark. Dep’t of Human
Servs. v. Huff, 65 S.W.3d 880 (Ark. 2002); In re Johnny S. v. Yvonne Q., 47 Cal. Rptr.2d 94 (Cal. Ct.
App. 1995); Dep’t of Children & Family Servs. v. L.G., 801 So.2d 1047 (Fla. Dist. Ct. App. 2001); Div.
of Youth & Family Servs. v. K.F., 803 A.2d 721 (N.J. Super. Ct. App. Div. 2002). Neither the courts of
review in Indiana nor in Illinois have addressed the question of whether the ICPC applies to the interstate
reunification of a child with a natural parent. And we decline to do so today because neither party has
placed the issue before us.
3
study concluded that Father needed to distance himself further from his past behavior before the
State of Illinois could allow Child to live with him there.
For reasons not apparent from this record, before the home study was complete the OFC
filed a petition to terminate the parental rights of both Mother and Father. 3 After a hearing
conducted on August 18, 2004, at which Father appeared and Mother did not, the trial court
entered an order granting the petition. The order provided in pertinent part:
The child(ren) has been removed from his parent(s) for least [sic]
six (6) months under a dispositional decree(s) of this Court dated
October 12, 2001 to both parents retroactive to June 21, 2001 . . . .
The child(ren) has been removed from the parent and has been
under the supervision of the LCOFC for at least fifteen (15) of the
most recent twenty-two (22) months.
There is a reasonable probability that the conditions resulting in the
removal of the child from his parents’ home will not be remedied
in that: Lavita Israel, [sic] is mother of herein named child. Child
was born testing positive for cocaine. Mother has two other
children none of whom are living with her. Mother admits using
cocaine to relieve stress from her pregnancy and her relationship
with the child’s father. Child was placed in foster care. Child has
failed to bond with mother. Mother has since gotten pregnant
again.
3
The record shows that the petition was filed October 22, 2002. Appellant’s App. at 14. An order
authorizing the filing was entered November 8, 2002. Appellant’s App. at 7. However, the home study
was not complete until sometime in December. In fact the in-home visit with Father and his parents did
not occur until November 22, 2002, and a criminal background check was not received until December 4,
2002. Appellant’s App. at 25. When asked who made the determination to change the case plan from
uniting Child with Father, a social worker assigned to the case testified “The Interstate Compact – the
Illinois Interstate Compact Agreement worker or supervisor.” Tr. at 31. On transfer OFC reiterates this
view. “As a result of the denial of placement by Illinois Interstate Compact, the case plan was changed
from possible placement with the father to termination of parental rights.” Appellee’s Br. In Response to
Petition to Transfer at 4. We make two observations. First, recommendations contained in a home study
conducted pursuant to the ICPC may have a bearing on whether a child can be placed in a home across
state lines. See n.2. But simply because a home study concludes that placement across state lines is not
recommended does not automatically mean that a parent’s parental rights should be severed. Second, we
are at a loss to see how the home study could have played a role in the decision to file a petition to
terminate Father’s parental rights since it was not complete until nearly two months after the petition was
filed.
4
Robert Bester [] is the father of [Child] as determined by DNA
testing. Mr. Bester has made efforts to comply with the case plan
for reunification. Ms. Israel has made little to no effort to comply
with the child’s case plan.
Neither parent is providing financial or emotional support for the
child. Mother has had little contact with the child. Father has had
regular contact with the child. Child has been in placement for
over one year.
There is a reasonable probability that the continuation of the
parent-child relationship poses a threat to the well-being of the
child in that: Child needs a stable loving, caring, nu[r]turing, and
drug free and safe adoptive home. Child has been in placement
since birth. Mother has made little to no effort in cooperating with
the agency and case plan. Father has made some effort but has yet
to establish himself as independent or to obtain his own residence.
Father is employed and trying to obtain his GED. Father has
extensive criminal convictions for drugs and cannot obtain
approval from the State of Illinois to allow child to be placed with
him.
It is in the best interest of the child and his health, welfare and
future that the parent-child relationship between the child and his
parents be forever fully and absolutely terminated.
Appellant’s App. at 12-13. Father appealed, and in a memorandum decision the Court of
Appeals affirmed. See Robert Bester v. Lake County Office of Family and Children, No.
45A03-0410-JV-454 (Ind. Ct. App. April 13, 2005). Having previously granted transfer, we now
reverse the judgment of the trial court. 4
Discussion
The Fourteenth Amendment to the United States Constitution protects the traditional
right of parents to establish a home and raise their children. Pierce v. Society of Sisters, 268
U.S. 510, 534-535 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923). A parent’s interest in
the care, custody, and control of his or her children is “perhaps the oldest of the fundamental
liberty interests.” Troxel v. Granville, 530 U.S. 57, 65 (2000). Indeed the parent-child
4
Our determination in this regard applies to Father only. Mother did not contest the trial court’s
judgment and is not a party to this appeal.
5
relationship is “one of the most valued relationships in our culture.” Neal v. DeKalb County
Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003) (quoting Tillotson v. Clay County
Dep’t of Family & Children, 777 N.E.2d 741, 745 (Ind. Ct. App. 2002)). We recognize of
course that parental interests are not absolute and must be subordinated to the child’s interests in
determining the proper disposition of a petition to terminate parental rights. In re D.D., 804
N.E.2d 258, 265 (Ind. Ct. App. 2004). Thus, “[p]arental rights may be terminated when the
parents are unable or unwilling to meet their parental responsibilities.” Id.
When reviewing the termination of parental rights, we do not reweigh the evidence or
judge witness credibility. Doe v. Daviess County Div. of Children & Family Servs., 669 N.E.2d
192, 194 (Ind. Ct. App. 1996). We consider only the evidence and reasonable inferences that are
most favorable to the judgment. Id. Here, the trial court entered findings of fact and conclusions
thereon in granting the OFC’s petition to terminate Father’s parental rights. When reviewing
findings of fact and conclusions of law entered in a case involving a termination of parental
rights, we apply a two-tiered standard of review. First, we determine whether the evidence
supports the findings, and second we determine whether the findings support the judgment. Page
v. Greene County Dep’t of Pub. Welfare, 564 N.E.2d 956, 959 (Ind. Ct. App. 1991). We will set
aside the trial court’s judgment only if it is clearly erroneous. In re Wardship of B.C., 441
N.E.2d 208, 211 (Ind. 1982). A judgment is “clearly erroneous if the findings do not support the
trial court’s conclusions or the conclusions do not support the judgment.” In re the Matter of
R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).
Indiana Code § 31-35-2-4(b)(2) requires that a petition to terminate a parent-child
relationship involving a child in need of services must allege that:
(A) one (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 . . . 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; or
(iii) after July 1, 1999, the child has been removed from the
parent and has been under the supervision of a county
6
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
(ii) 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 OFC bears the burden of proving these allegations by clear and convincing evidence. In re
the Matter of R.J., 829 N.E.2d at 1035. Clear and convincing evidence need not reveal that “the
continued custody of the parents is wholly inadequate for the child’s very survival.” Egly v.
Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1233 (Ind. 1992). Rather, 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. Id. at 1234.
Father raises several issues on transfer, one of which we find dispositive: whether the
OFC presented clear and convincing evidence that the continuation of the parent-child
relationship poses a threat to the Child’s well-being. 5 Father contends that several of the trial
court’s findings in this regard apply only to Mother and that the findings that apply to him either
(a) are not supported by the evidence or (b) do not support the trial court’s ultimate conclusion.
As the trial court’s findings reveal, the termination order focused primarily upon Mother’s
conduct and how her conduct affected Child. The only findings relevant to Father provide:
Robert Bester [] is the father of [Child] as determined by DNA
testing. Mr. Bester has made efforts to comply with the case plan
for reunification. . . .
5
The OFC is required to prove either (i) the conditions resulting in child’s placement outside the home
will not be remedied, or (ii) the continuation of the parent-child relationship poses a threat the child’s well
being. It need not prove both. Ind. Code § 31-35-2-4(b)(2); In re W.B., 772 N.E.2d 522, 531 (Ind. Ct.
App. 2002) (“Having found a reasonable probability that the conditions precipitating the [children’s]
removal would not be remedied, the trial court was not required to find also that the continuation of the
parent-child relationship posed a threat to the [children], since the statute only requires finding one or the
other.”). Here, the trial court terminated Father’s parental rights only on grounds related to Child’s well
being.
7
Neither parent is providing financial or emotional support for the
child.
Father has had regular contact with the child. . . .
Father has made some effort but has yet to establish himself as
independent or to obtain his own residence. Father is employed
and trying to obtain his GED. Father has extensive criminal
convictions for drugs and cannot obtain approval from the State of
Illinois to allow child to be placed with him.
Appellant’s App. at 12-13.
The trial court’s finding that Father “has made efforts to comply with the case plan for
reunification” is a bit misleading (emphasis added). From shortly after Child was born in June
2001, until August 2002, OFC case manager Rita Daniels was assigned to Child’s case. At the
termination hearing, when asked about her contact with Father and whether he was availing
himself of court ordered services, Daniels testified, “Dad was involved in visitation, he was
involved – there was supposed to be a home study done, and a background check done on him;
various things that were listed and he was one hundred percent compliant.” Tr. at 59 (emphasis
added). Case manager Judith Kelley, who was assigned Child’s case beginning in August 2002,
confirmed that Father completed his counseling and visited with Child on a regular basis. Tr. at
41. The record supports both of the case managers’ testimonies. Father underwent therapy with
Apostolic Youth & Family Services, Inc. There was no evidence that follow-up treatment of any
kind was recommended. Between June 21, 2002 and October 15, 2002 Father submitted to five
random drug tests conducted by this same family services agency. Each showed Father tested
negatively for either cocaine and “THC” or cocaine, “THC”, and alcohol. Appellant’s App. at
43, 50, 51, 78, 79. The record also shows that Father enrolled in and successfully completed a
twelve-week parenting class with the agency “Ties The Bind” which included regular visitations
with Child. Appellant’s App. at 69-73; Tr. at 72.
The record shows that Father was in full compliance with the court ordered case plan for
reunification which required him to (1) submit to psychological evaluations and follow through
with any recommended treatment, (2) submit to random drug screens, (3) successfully complete
8
parenting classes, and (4) visit with the child regularly. Appellant’s App. at 89. To say that
Father merely made “efforts” to comply with plan is not supported by the record.
The trial court’s finding that Father is not “providing financial . . . support for the child” is
also misleading. Even though Father testified that he provided money to Child’s foster parents as
well as his own parents to help pay for his son’s daycare, when asked the question, “[t]o your
knowledge, has Mr. Bester contributed financially to this child in any form,” case manager Kelly
testified, “[n]ever, to my knowledge.” Tr. at 28. 6 The trial court is vested with the responsibility
of resolving this conflicting testimony. On review we do not reweigh evidence or judge witness
credibility. Doe, 669 N.E.2d at 194. We are thus bound by the trial court’s factual determination
that Father is not providing financial support for Child. Nonetheless, the trial court’s finding
implies that Father was ordered to provide such support and failed to do so. But nothing in this
record supports that implication. The record does not reveal whether an order of support was
included as a part of the paternity adjudication. See n.1. And the case plan itself has no support
obligation component. It is clear that Father complied in every respect with the court ordered
case plan for reunification. Absent some indication that Father was directed to provide financial
support to Child, he cannot now be criticized for not doing that which he was never asked to do.
The trial court found that “[n]either parent is providing . . . emotional support for the
child.” Appellant’s App. at 13 (emphasis added). Although this may be true with respect to
Mother—who has not contested the termination of her parental rights and is not a party to this
appeal—there is simply nothing in the record that supports this finding with respect to Father.
We first observe that none of the witnesses testifying at the termination hearing was specifically
asked about the emotional support that Father was or was not providing to Child. More
importantly the evidence introduced at the hearing that is at least related to this issue presents a
different picture. The initial visitations between Father and Child were conducted under the
supervision of the “Ties The Bind” agency. The reports of those visitations were introduced into
evidence. Following is a representative sampling: August 6, 2001, “Lavita was a no show.
Robert had a good visit with his baby. He held him close, he walked and talked to [Child]. He
6
Apparently the case manager was unaware that Father provided Child with gifts as well clothing. See
Appellant’s App. at 54, 69.
9
hugged and kissed him. They also brought [Child] some clothing. They had a good visit.”
Appellant’s App. at 69; August 27, 2001 “Lavita the mother [] was a no show. Robert visited
with his son, he held him and rocked him and talked to him. Grandmother Carol was also here
for the visit. They had a good visit with [Child].” Appellant’s App. at 70; September 17, 2001
“Robert held [Child] and fed him. He changed his pampers; he rocked him; and talked to [Child].
Grandmother was giving Robert instructions and showing him the correct way to hold the baby
and to make sure he burp[s] him. They had a good visit.” Appellant’s App. at 73; June 10, 2002
“Robert played with [Child]. He pushed him in the little push car. And his Aunt Tanzie took
pictures of Robert and his son. Robert played with [Child] and fed him some applesauce. He
also put [Child] on the floor mats and played with him. They had a good visit.” Appellant’s
App. at 53; June 17, 2002, “Today was [Child’s] birthday. He had a birthday party with cake, ice
cream, party hats. Mrs. Bester [Grandmother] took lots of pictures along with [Child’s] cousins,
father, and aunt. They also brought [Child] some new clothing. Mrs. Bester [Grandmother] and
the family was very happy.” Appellant’s App. at 54. In essence, the evidence does not support
the trial court’s findings. Far from demonstrating that Father provides no emotional support to
Child, the record before us shows an interaction between father and son that is loving, caring, and
happy.
Because of our resolution of the trial court’s findings as discussed above, the trial court’s
ultimate conclusion to terminate Father’s parental rights can only be based on its finding that,
“Father has made some effort but has yet to establish himself as independent or to obtain his own
residence” and that “Father has extensive criminal convictions for drugs and cannot obtain
approval from the State of Illinois to allow child to be placed with him.” Appellant’s App. at 13.
The trial court’s finding that Father has neither established himself as independent nor
obtained his own residence provides little guidance concerning whether these facts demonstrate
that Child’s well-being would be threatened by Father’s custody. We find Tipton v. Marion
County Dep’t of Public Welfare, 629 N.E.2d 1262, 1267-68 (Ind. Ct. App. 1994) instructive on
this point. In that case, in terminating a father’s parental rights, the trial court found among other
things that the father failed to demonstrate that he maintained stable housing. The record showed
that since the child’s birth—a period of a little over four years—father had lived at three different
10
residences, all belonging to family members. Id. at 1267. Three persons including father lived at
his grandmother’s house which had four bedrooms. Four people including father lived at his
aunt’s home which had three bedrooms. Father paid rent when he lived at those places. And at
the time of the termination hearing, father was living with his brother in a four-bedroom house
with five other people, including the child’s cousins. Id. Reversing the judgment of the trial
court the Court of Appeals determined that the notion that father’s living arrangement justified
terminating his parental rights, “reflect[ed] a class or cultural judgment . . . [Instead], “[p]arental
unfitness must be established on the basis of individualized proof.” Id. at 1268 (citing Stanley v.
Illinois, 405 U.S. 645 (1972)). Noting that the trial court “did not conclude that [father] could not
provide his child with an adequate home because he moved too frequently or that these places
were not suitable for a child,” the court concluded, “[t]he evidence offered on the matter of
housing does not support a reasonable inference that [father’s] living arrangements pose or have
ever posed a threat to the well-being of his child.” Id. at 1267-68. In fact, the court observed that
father’s living arrangement with his extended family provided the child a “safety net.” Id. at
1268.
In this case, the record shows that Father has lived with his parents for most of his life.
Although at the time of Child’s birth Father lived with Mother in Indiana, shortly thereafter he
again began living with his mother and father in their East Hazel Crest, Illinois home. He resided
with his parents until after the home study was conducted pursuant to the Interstate Compact. At
that point, case manager Kelly informed Father that, as a result of the home study, he could no
longer reside in his parent’s home if Child was going to be placed there. Tr. at 64. 7 Father left
and moved in with a friend for about two months. Tr. at 63. Thereafter he moved to Chicago,
Illinois to live with an aunt, where he pays rent and was living at the time of the termination
hearing. Tr. at 63, 70, 71. As in Tipton, here the trial court’s findings reveal no causal
connection between Father’s living arrangements and any adverse impact those arrangements
may have on Child. And although we know nothing about the living conditions in the home of
Father’s aunt, we do know that the home of Father’s parents was “clean, spacious and adequately
7
The record is not altogether clear. However, it appears that at some point the case plan anticipated that
Father’s parents would obtain guardianship of Child. See Tr. 21, 25, 84-86. At the time of the
termination hearing Child was residing with Father’s parents in Illinois.
11
furnished. . . . [and] [t]here were no hazards observed that would prevent the placement of
[Child] into the home.” Appellant’s App. at 27.
The OFC insists that Father’s lifestyle was that of a “transient.” Br. of Appellee at 8.
See, e.g., J.M. v. Marion County Office of Family & Children, 802 N.E.2d 40, 45 (Ind. Ct. App.
2004), trans. denied (court may properly consider lack of adequate housing when evaluating
parental fitness). However the trial court made no such finding, nor did the trial court conclude
that Father was unable or unwilling to provide Child with an adequate home or that the homes of
Father’s relatives were unsuitable for a child. Rather, the trial court’s criticism was that Father
did not have “his own residence.” We agree with the conclusion reached by the Tipton court and
conclude here that the evidence offered on the matter of Father’s housing does not support a
reasonable inference that Father’s living arrangements and his alleged lack of independence pose
or have ever posed a threat to the well-being of his child.
Finally, in support of its decision to terminate Father’s parental rights, the trial court
found that, “Father has extensive criminal convictions for drugs and cannot obtain approval from
the State of Illinois to allow child to be placed with him.” Appellant’s App. at 13. This finding
suggests one of two possibilities, either: (1) the first clause is intended to stand alone as
justification for termination of Father’s parental rights, or (2) the first clause is relevant only
because of its impact on the second. That is, because of Father’s criminal history, Child cannot
be placed with Father in Illinois. In any event, neither possibility justifies termination of Father’s
parental rights.
The record shows that Father, who was twenty-seven years old at the time of the
termination hearing, has a criminal history dating from 1994. It includes five arrests and two
convictions for possession of marijuana, and one arrest for possession of controlled substances.
Appellant’s App. at 32. 8
8
The record shows that although Father’s criminal history, which includes drug related activity, is
“extensive,” his actual criminal convictions for drugs are not. Thus, the evidence of record does not
support the trial court’s finding on this point. However, this discrepancy does not affect our analysis.
12
Because Child was born testing positive for cocaine in his system, Father’s drug related
criminal history cannot be taken lightly. In fact the trial court must consider a parent’s habitual
pattern of conduct to determine whether there is a substantial probability of future neglect or
deprivation. J.K.C. v. Fountain County Dep’t of Pub. Welfare, 470 N.E.2d 88, 92 (Ind. Ct. App.
1984). At the same time, however, a trial court should judge a parent’s fitness to care for his
child as of the time of the termination proceeding, taking into consideration evidence of changed
conditions. Id.; Odom v. Allen County Dep’t of Pub. Welfare, 582 N.E.2d 393, 395 (Ind. Ct.
App. 1991).
In this case when first confronted about his numerous arrests, Father explained they
occurred during the years that he was an active member of a street gang, and the “crowd he
associated with rubbed off on him.” Appellant’s App. at 29. Nothing in the record shows that
Father is currently a street gang member. Rather, according to Father, he has had no gang
involvement since 1997. Appellant’s App. at 29. And by the time of the termination hearing
Father had been employed full-time since August 2003 as a steel cutter in a manufacturing plant.
Tr. at 67, 70, 82. Father testified that he has not used any illegal drugs “ever [sic] since my son
been born and they took my son.” Tr. at 70. Importantly, (a) the trial court made no finding that
Father is, or for the past three years has been, involved with illegal drugs, and (b) the record
shows that the random drugs tests conducted on Father as a part of the case plan were all
negative.
The evidence of record admittedly shows a young man with a troubled past. However by
the time of the termination proceedings, and apparently for at least three years before that date,
Father has conducted himself in a manner consistent with assuring that his son would be exposed
to a healthy drug free environment. We conclude therefore that in this case the existence of
Father’s past criminal history does not demonstrate that the continuation of the parent-child
relationship between Father and Child poses a threat to Child’s well being. Stated somewhat
differently, the OFC has not demonstrated by clear and convincing evidence that because of
Father’s past criminal history, “the child’s emotional and physical development are threatened”
by Father’s custody. Egly, 592 N.E.2d at 1234.
13
As for the import of the approval from the State of Illinois to allow placement of Child
with Father, we make the following observations. An interstate compact is “an agreement
between two or more states, entered into for the purpose of dealing with a problem that
transcends state lines.” P. Hardy, Interstate Compacts: The Ties that Bind 2 (1982). The
Interstate Compact on the Placement of Children was drafted in the late 1950s to address
concerns about the interstate adoption and foster care placement of children. Kimberly M.
Butler, Child Welfare-Outside the Interstate Compact on the Placement of Children-Placement
of a Child with a Natural Parent, 37 Vill. L. Rev. 896, 906 (1992). Indiana adopted the ICPC in
1978. See Ind. Code §12-17-8-1. All fifty states are now participating members. The ICPC
expressly defines its purpose and policy as facilitating cooperation between states in the
placement and monitoring of dependent children. Ind. Code § 12-17-8-1, Art. I. 9 By its terms
the ICPC addresses “placement.” It says nothing one way or the other about whether a parent’s
parental rights should be terminated. Further, the ICPC does not apply to the sending or bringing
of a child into a receiving state when it is done by a parent, stepparent, grandparent, adult
brother, sister, uncle or aunt who is leaving the child with a relative or non-agency guardian in
the receiving state. Ind. Code § 12-17-8-1, Art. VIII.
Here, not surprisingly, the home study conducted by the Illinois authorities did not
evaluate Father’s fitness to parent his child. Rather, it only determined that Child could not be
placed with Father in Illinois at that time. Thus, the trial court’s finding that Father cannot
obtain approval from the State of Illinois to allow his son to be placed with him there is not
relevant to the question of whether continuation of the parent-child relationship poses a threat to
Child’s well-being.
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More specifically, the ICPC declares its intent is to ensure that:
(a) Each child requiring placement shall receive the maximum opportunity to be placed
in a suitable environment and with a person or an institution having appropriate
qualifications and facilities to provide a necessary and desirable degree and type of care.
(b) The appropriate authorities in a state where a child is to be placed may have full
opportunity to ascertain the circumstances of the proposed placement, thereby promoting
full compliance with applicable requirements for the protection of the child.
(c) The proper authorities of the state from which the placement is made may obtain the
most complete information on the basis of which to evaluate a projected placement before
the placement is made.
(d) Appropriate jurisdictional arrangements for the care of children must be promoted.
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Conclusion
Several of the trial court’s findings were either misleading or unsupported by the
evidence. And those findings supported by the evidence did not support the trial court’s
judgment. As a result, the trial court’s conclusion that there is reasonable probability that the
continuation of the parent-child relationship poses a threat to Child’s well being has not been
demonstrated by clear and convincing evidence and thus is clearly erroneous. We therefore
reverse the judgment of the trial court.
Shepard, C.J., and Dickson and Boehm, JJ., concur.
Sullivan, J., not participating.
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