Majority reverses termination of incarcerated father’s parental rights

Finding the state did not prove that the parental rights of a man – who learned he was a father while incarcerated pending trial – should be terminated, two of the three judges on a Court of Appeals panel reversed.

Chief Judge Nancy Vaidik and Judge Melissa May found several errors in the trial court’s findings regarding the termination of S.W.’s parental rights to his son, R.A. The infant had previously been adjudicated a child in need of services based on his mother’s inability to care for him and placed in foster care. S.W. was ordered to participate in a variety of services upon his release, and declined to participate in any services while incarcerated. Six months later, while still incarcerated, a petition was filed to terminate his parental rights.

The split decision in the COA in In the Matter of the Termination of the Parent-Child Relationship of: R.A. and S.W. v. The Indiana Department of Child Services, 41A05-1402-JT-60, has a lot to do with S.W.’s refusal to participate in services while incarcerated. The trial court ruling included findings that father declined to participate in Fatherhood Engagement, a program available while in jail, but the majority found that he was not ordered to participate in services until after he was released.

Judge Ezra Friedlander in his dissent wrote that while S.W. was not ordered to participate in those programs, “in my view that does not negate the validity of the inference drawn by the trial court that S.W.’s refusal to do so foreshadows what is to come.” The father was aware his parental rights were in jeopardy and still refused to participate and made no effort to establish a relationship with the child.”

Friedlander also found that the continued presence of S.W. in his son’s life will not be in the boy’s best interest is supported by the evidence of what S.W. has done, and refused to do, thus far.

The majority countered that termination is only appropriate when the State proves each relevant element of the termination statute by clear and convincing evidence, and it failed to do so here. Johnson County Department of Child Services did not establish that there is reasonable probability the conditions that led to the boy’s removal or placement outside of the home will not be remedied and that continuation of the parent-child relationship poses a threat to R.A.’s well-being.

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