On Petition to Transfer from the Indiana Court of Appeals, No. 82A04-1407-JT-320
J.E. is the Father of two children, J.A.E. and K.E. While Mother was pregnant with K.E., Father and Mother were both charged with multiple drug-related criminal offenses. These charges prompted the Indiana Department of Child Services (DCS) to file a petition alleging that J.A.E. was a Child in Need of Services (CHINS), which the trial court ultimately found J.A.E. to be. Eventually, both Mother and Father’s parental rights over J.A.E. were terminated. Thus, the current case only relates to the parental rights of K.E.
When K.E. was born in July of 2012, Mother had been released on conditional bond for the aforementioned criminal charges. Father was already incarcerated, and, shortly after KE.’s birth, was convicted on the same charges. Mother ultimately plead guilty to her charges in October of 2012. Just over a month after Mother’s guilty plea, while released on bond and awaiting sentencing, Mother left K.E. unattended at an adult party and could not be located until the following morning. This resulted in K.E. also being found a CHINS. Since Father was already incarcerated, DCS attempted to provide services only to Mother, and the plan was reunification between Mother and child. Ultimately, DCS filed for termination of parental rights due to Mother’s lack of progress and Father’s continued inability to care for K.E. due to his incarceration.
At the termination hearing, the Court Appointed Special Advocate (CASA) and the DCS case manager both recommended termination of Mother and Father’s parental rights. However, Father maintained that upon his release he was prepared to be a better parent and to stay drug-free. Father relied upon the multiple voluntary programs that he completed during incarceration, the bond he had developed with K.E. and J.A.E. through visitation and nightly phone calls, and his plan to begin working and living with his father (KE.’s paternal grandfather) immediately upon his release to demonstrate his willingness and ability to parent.
The trial court entered findings of fact and conclusions of law, determining that under Indiana Code § 31-35-2-4(b)(2), the conditions that led to removal were unlikely to be remedied, Mother and Father posed a threat to KE.’s well-being, and termination was in KE.’s best interest. Thus, Mother and Father’s parental rights were terminated.
As this Court has recognized, incarceration is an insufficient basis for terminating parental rights. See e.g. In Re G.Y.,
Facts and Procedural History
S.S. (Mother) and J.E. (Father) have two children together, J.A.E. and KE. While Mother was pregnant with KE., Mother and Father were both charged with various offenses after they were found in a home, with .J.A.E., in which a methamphetamine lab was discovered. Mother and Father both had their parental rights to J.A.E. terminated.
On April 1, 2013, K.E. was adjudicated a Child in Need of Services (CHINS). Shortly thereafter, K.E. was placed in the custody of his paternal aunt, H.D. KE. and J.A.E. both continue' to live with H.D. H.D. regularly takes KE. and J.A.E. for visitation with Father for two to three hours at a time, and Father makes nightly phone calls to H.D. in order to talk to both of his children. Father has also completed over twelve programs while incarcerated that relate to self-improvement, parenting, and drug and alcohol abuse. However, Mother continually violated the terms of her conditional bond and probation, did not comply with services offered to her by DCS, and repeatedly cancelled or did not show up for her scheduled visitation with KE.
On February 24, 2014, DCS filed a petition to terminate Mother and Father’s parental rights to KE. A hearing was held in which Father .was present by phone and represented by counsel. Father sought a continuance, but it was denied by the trial, court. At the hearing, the Court Appointed Special Advocate (CASA) and the DCS case manager testified that KE. should remain in the care of H.D. The DCS case manager believed that termination of both parents’ rights was warranted at the time of the hearing in order to establish permanency for KE. However, the CASA was willing to recommend that termination of Father’s parental rights be delayed until it was determined whether Father’s sentence would be modified. The CASA considered the efforts Father had made to complete multiple programs, the bond he had devel
On June 16, 2014, the trial court entered findings of fact and conclusions of law. In accordance with the requirements under Indiana Code § 31-35-2-4(b)(2), the court concluded in pertinent part that: 1) there was a reasonable probability that the conditions that resulted in KE.’s removal or placement outside of the home will not be remedied; 2) there was a reasonable probability that the continuation of a parent-child relationship between K.E. and either Mother or Father would pose a threat to KE.’s well-being; 3) termination of parental rights of Mother and Father is in KE.’s best interest; and 4) DCS’ plan for the adoption of KE. after termination of parental rights is an acceptable and satisfactory plan.
■ Father appealed, asserting that the trial court abused its discretion by denying his motion for a continuance, and the State failed to present sufficient evidence of the statutory requirements- for termination of parental rights. In a memorandum decision, the Court of Appeals affirmed the trial court. In Re KE., No. 82A04-1407-JT-320, op. at *9,
Judge Baker dissented in part from the majority. Op. at *9. Judge Baker was persuaded by the facts that Father had done everything he had been asked to while incarcerated, actively participated in substance abuse programs, established regular visitation with K.E., and spoke to KE. every night on the phone. Op. at *9. The dissent was of the opinion that there was nothing more that Father could have done, and thus the termination was entirely based upon his incarceration. Op. at *9. Thus, the dissent would reverse the termination of Father’s parental rights to KE. and remand for further proceedings pending Father’s release from incarceration. Op. at *10.
Upon Father’s petition, this Court now grants transfer, thereby vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A). We hold that there was insufficient evidence to terminate Father’s parental rights to K.E., and we reverse the trial court’s order terminating Father’s parental rights. We summarily affirm the Court of Appeals on the termination of
Standard of Review
Upon review of the termination of parental rights, we do not reweigh the evidence or judge the credibility of witnesses. In Re G.Y.,
Id.
Discussion
It is well established that “[a] parent’s interest in the care, custody, and control of his or her children is ‘perhaps the oldest of the fundamental liberty interests.’ ” Bester v. Lake Cnty. Office of Family & Children,
In order to terminate parental rights, DCS must show by clear and convincing evidence, among other things,
(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.
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(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.
Ind.Code § 31-35-2-4(b)(2); Bester,
Upon review of whether the conditions that resulted in removal will be remedied, this Court engages in a two-step analysis. In Re E.M.,
K.E. was removed while Father was incarcerated. Thus, the primary condition for KE.’s removal as to Father was Father’s inability to provide care and supervision for K.E. due to his incarceration. The trial court’s findings supporting the determination that Father would not remedy the conditions for removal include that:
1) Father has been unable to receive services from DCS due to his incarceration;
2) Father has a lengthy criminal history;
3) Father is currently incarcerated for his most recent offenses, was denied a sentence modification, and his current release date is not until September 19, 2016;
First, we are not persuaded that there is any evidence in the record to contravene Father’s statements that upon his release he plans to live with his father (KE.’s paternal grandfather) and work with him through Vectren. While Father did not substantiate this claim, DCS did not present any evidence to support a con-tradictive finding. No evidence indicates that Father was fabricating his plans for employment or that his father’s home is unsuitable for children.
Second, the remaining factual findings are insufficient to establish by clear and convincing evidence that Father cannot remedy the conditions for removal. It is not disputed that Father must obtain release from incarceration before he can provide care and support for K.E. Father’s release from incarceration is pending. Although at the time of the termination hearing Father’s possible release was still over two'years away that alone is insufficient to demonstrate that the conditions for removal will riot be remedied. Indiana courts have upheld parental rights of incarcerated parents who still 'had a year or more to serve before possible release, and we have not established a bright-line rule for when release must occur -to maintain parental rights.
For example, in In Re G.Y., this Court reversed the termination of a mother’s parental rights.
In the current case, Father’s release is pending, and at this point, is less than a year away. However, as in the cases outlined above, the potential release date is only one consideration of many that may be relevant in a given case. We do not seek to establish a higher burden upon incarcerated parents based upon their possible release dates nor do we believe the burden of proof should be reduced merely because a parent is incarcerated. Because the release date alone is not determinative, we consider whether other evidence, coupled with this consideration, demonstrates by clear and convincing evidence a reasonable probability that Father would be unable to remedy the conditions for removal.
Most significantly, Father has made substantial efforts towards bettering his life through programs that were available during his incarceration. Since Father’s incarceration, he has completed twelve programs, the majority of which were completed voluntarily and did not result in sentence reductions. These programs include: 1) The Spiritual Literacy Program: Reading the Sacred in Everyday Life; 2) Community Services (completing over 320 hours); 3) Prevention and Relationship Enhancement Program; 4) Developing a
In addition, H.D. brings both K.E. and J.A.E. to visit Father every other week for two to three hours. The DCS case manager testified that Father interacts well with the children during visitations, even though they occur in the secure environment of the prison. H.D. testified that both children have bonded with Father, and K.E. recognizes Father and knows who he is. Father also makes nightly phone calls to H.D.’s house to talk to K.E. and J.A.E. and tell them goodnight. The CASA testified that Father has made “great strides” since he has been incarcerated. (Tr. at 132.)
Despite Father’s criminal and substance abuse history, his recent improvements at the time of the termination hearing were not balanced against his habitual patterns of conduct. Given the substantial efforts that Father is making to improve his life by learning to become a better parent, establishing a relationship with K.E. and J.A.E., and attending substance abuse classes, it was not proven by clear and convincing evidence that Father could not remedy the conditions for KE.’s removal. As indicated in Judge Raker’s dissent, there is seemingly nothing else that Father could have been doing to demonstrate his dedication to obtaining reunification. Because there was insufficient evidence to establish this factor for termination, the findings cannot support the conclusion reached by the trial court, making the conclusion clearly erroneous.
II. Whether Father Poses a Threat to K.E.’s Well-being
It appears that the same evidence as outlined above was also relied upon in reaching the conclusion that Father poses a threat to KE.’s well-being. See In Re A.K.,
“[A] trial court need not wait until a child is irreversibly influenced by a deficient lifestyle such that [his or] her physical, mental, and social growth is permanently impaired before terminating the parent-child relationship.” In Re E.S.,
We first acknowledge that DCS recommended termination solely on the grounds
Although permanency is usually a factor that is assessed when evaluating whether termination is in the best interests of the child, we will consider it here, since permanency for K.E. was DCS’ and the CASA’s primary concern. Considering the impact of delaying termination on KE.’s well-being, it is significant that H.D., the CASA, and the DCS case manager all acknowledged that it is unlikely that K.E. would be harmed by delaying termination. The following exchange exemplifies KE.’s stability.
Question: “would there be any disadvantage to [K.E.], any harm that could possibly come to him, if Father’s rights were not terminated as of this date or in a month, and let’s say for at least the next maybe six months he was given services during that period of time to see whether or not he could be a fit and proper parent?”
H.D.: “I don’t think it’ll affect [K.E.], no.”
Question: “He feels safe and secure and loved where he’s at right now, is that right?”
H.D:: “I believe so.”
Question: “Would that in any way be affected by putting Father’s termination off and giving him an opportunity to do services?”
H.D.: “I don’t think so.”
(Tr. at 122-123.) Thus, if Father fails to comply with services and/or relapses into a life of crime or drug use, K.E. will remain in the loving environment of H.D.’s home. It is not the case that K.E. is being bounced around to various foster homes and will be denied stability if termination does not occur now.
H.D. also expressed that she is willing to adopt K.E. at any time, and her willingness will not change if termination is delayed. Again, there is seemingly no risk K.E. will be denied permanency if termination is delayed. Moreover,, parental rights are not to be terminated merely because there might be a “better home” available for the child. In Re KS.,
DCS: ‘You testified that [KJE.’s] okay because he’s with you.”
H.D.: “I feel that way.”
DCS: “I think most people testified they would agree.”
H.D.: “Obviously I want [K.E.] with his parents, but I mean, right now, yeah.”
(Tr. at 124.)
As for the other factors influencing KE.’s well-being, in Bester, this Court re
3) that there was “no causal coiinection between Father’s living arrangements and any adverse impact those arrangements may have on the Child,” or that the homes of Father’s relatives were unsuitable; and
4) Father’s current improvements demonstrated a desire to provide a healthy and drug free environment, and a past criminal history was not enough to demonstrate that Father was a threat to the child. Id. at 149-53.
Here, regardless of whether Father’s rights are terminated, the evidence is undisputed that Father will continue to be a part of KE.’s life, as long as he remains sober and otherwise law-abiding.
As a final note, we acknowledge that Father has had his parental rights terminated to his prior born child, J.A.E. We are compelled to reach a different result as to Father’s parental rights to K.E., given the changed circumstances since the termination hearing for J.A.E. When termination of J.A.E. was being considered, Father had not had any kind of substance abuse counseling, had not yet graduated from the Plus Program, nor had he successfully completed other programs that he had at K.E.’s termination hearing. See In Re J.E., No. 82A01-1401-JT-20; op. at *2. Furthermore, the DCS case manager testified at J.A.E.’s termination hearing that “H.D. was in favor of a termination of Father’s parental rights rather than a mere guardianship because H.D. was concerned that Father could still gain custody of the children.” Id. Since Father’s termination of parental rights to J.A.E., Father has begun attending Alcoholics Anonymous and Narcotics Anonymous classes. H.D.’s testimony in KE.’s termination hearing also indicated her hope that Father would in fact' be able to be KE.’s caregiver, and she did not insist upon immediate adoption. This alone reflects a significant change from the position she expressed in the termination hearing for J.A.E. Finally, regardless of termination, Father has continued to develop a bond with J.A.E. through visitation and nightly phone calls, along with K.E. Because of the change in circumstances since the Court of Appeals' affirmed the termination
Conclusion
Without clear and convincing evidence to support each of the factors set out in Indiana Code § 31-35-2-4(b), we cannot terminate a parent-child relationship. As such, we reverse the trial court’s order terminating Father’s parental rights.
Notes
. Father appealed the termination of Kis parental rights over J.A.E., and at the time' of the termination hearing for K.E., Father’s appeal had not been decided. However, since the termination hearing for K.E., the Court of Appeals affirmed the trial court’s termination of Father's parental rights to J.A.E. in a memorandum decision. In Re J.E., No. 82A01-1401-JT-20,
. However, Mother’s non-compliance with the terms of. her conditional bond, and later probation, led to multiple petitions to revoke her probation and various stints in jail'.
. Father was not approved for a sentence modification, and his release date at the time of the modification hearing remained September 2016. Currently, it appears that Father’s earliest possible release date is March 23, 2016.
. "Because subsection (b)(2)(B) is written in the disjunctive ... the trial court need only find one of the two elements by clear and convincing evidence.” Castro v. State Office of Family & Children,
. Although the trial court findings also state that Father does not have a definite release date, the record demonstrates that Father's release date at the time of the hearing was September 2016. Father’s release date is currently set for March 2016.
. Although DCS argues that "Father was unable to show that he would be able to provide for Child after he was eventually released ...," we reiterate that it is DCS' burden to show by clear and convincing evidence that each of the elements provided in Indiana Code § 31-35-2-4(b)(2) are met. Bester,
. When H.D. was asked, "even if [Father’s] rights end up being terminated he’s going to be playing some role in the children’s lives, it just depends upon to what extent. And.you will decide that based upon how safe you feel it is,” H.D. .responded, “Yeah.” (Tr. at 123.)
. We repeat our advisement that was recently provided in In Re the Adoption of Minor Children: I.B. and W.B.,