The Indiana Supreme Court reversed a father’s involuntary termination of parental rights today, noting the lack of clear and convincing evidence.

In Term. of Parent-Child Rel. of I.A.; J.H. v. Indiana Department of Child Services, No. 62S01-1003-JV-148, father J.H. challenged the sufficiency of the evidence supporting the trial court’s judgment regarding Indiana Code sections 31-35-2-4(b)(2)(B) and (C).

I.A. was born Feb. 18, 2006, out-of-wedlock to mother, D.A., and J.H. The child was one of mother’s seven children ranging in age from birth to 14 years. Within a few months of I.A.’s birth, mother told J.H. that I.A. was his son.

The same month I.A. was born, the Perry County Department of Child Services became involved with mother and her children because of allegations of lack of supervision, educational and medical neglect, and mother’s drug use. The children were removed from mother’s care in January 2007 and individual petitions were filed alleging each child was a child in need of services. DCS named father as a party to the petition regarding I.A.

Both mother and father appeared pro se at a March 30, 2007, hearing at which the judge granted the CHINS petition. The order included a reunification plan for the mother but not for father.

After a July 2007 review hearing, the court entered no findings regarding the father. J.H. later testified that during the summer of 2007, he was initially allowed limited visitation with I.A.; however, visitation was discontinued in September 2007 because paternity had not yet been established. DCS filed a petition Feb. 12, 2008, to terminate both mother and father’s parental rights. J.H. sought paternity testing in May 2008 and filed a petition to establish paternity of I.A., which the trial court granted in September 2008. From July 11, 2008, through Jan. 29, 2009, father was allowed supervised visitation with I.A.

The trial court noted at a review hearing Nov. 25, 2008, that J.H. appeared but mother did not. Among the findings, the trial court noted the mother did not comply with the case plan, but the father did. The high court, however, wrote the record did not reveal that a case plan was ever put in place for J.H.

Despite J.H.’s efforts, the trial court granted DCS’s petitions to terminate mother and father’s parental rights.

At the time I.A. was removed, mother and father were not residing in the same household so the child was in her sole custody and care. Because of that, the conditions that resulted in I.A.’s removal cannot be attributed to father, wrote Justice Robert Rucker.

A caseworker noted that father had not bonded with I.A. after 6 months of parent-aide services, that father needed considerable direction regarding simple tasks relating to I.A.’s care, and there had been “no progress in the relationship” between father and I.A.

“In essence, the factors identified by the trial court as conditions that will not be remedied are relevant only if those conditions were factors in DCS’s decision to place I.A. in foster care in the first place. Not only is the trial court’s order terminating Father’s parental rights silent on this point, but also the record before us is silent,” wrote Justice Rucker, noting the trial court’s termination of J.H.’s parental rights cannot be sustained.

The high court noted the record does demonstrate that father’s parenting skills are lacking; however, a case plan for reunification was never developed for father indicating what was expected of him. Also, other than parent aide, no services were provided to assist J.H. in developing effective parenting skills.

“The involuntary termination of parental rights is the most extreme sanction a court can impose on a parent because termination severs all rights of a parent to his or her children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Therefore, termination is intended as a last resort, available only when all other reasonable efforts have failed. Id. We are not convinced that all other reasonable efforts have been employed in this case to unite this father and son,” Justice Rucker wrote.

Justice Theodore Boehm, however dissented, giving deference to the trial court’s conclusion.