October 01, 2015

Evidence Did Not Show Incarcerated Father Would be Unable to Remedy Conditions Causing Removal of Child

Eva Klain

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

K.E. v. Ind. Dep’t of Child Servs., 2015 WL 4944977 (Ind.).

Primary condition for removing child from father’s home was his inability to care for and supervise child during his incarceration. Father stated that, upon his release, he planned to live with child’s paternal grandfather and work with him. Father’s release was less than a year away and he had made substantial progress during his incarceration. Father’s visits with his children had also resulted in children bonding with him.

J.E. is the father of two children, J.A.E. and K.E. While the mother was pregnant with K.E., the father and mother were charged with multiple drug-related offenses. The child welfare agency filed a petition alleging J.A.E. was a dependent child and the court agreed. Eventually, the mother’s and father’s parental rights to J.A.E. were terminated. The current case only relates to the father’s parental rights to K.E.

At the termination hearing, the Court Appointed Special Advocate (CASA) and the child welfare agency case manager recommended terminating the parents’ rights. However, the father claimed that once he was released, he was prepared to be a better parent and to stay drug-free. To show  his willingness and ability to parent, the father relied on 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 (K.E.’s paternal grandfather) oponupon his release.

The trial court determined that termination was in K.E.’s best interests and there was a satisfactory plan for his care and treatment. The father appealed, claiming the trial court abused its discretion by denying his motion for a continuance, and the agency failed to present sufficient evidence of the statutory requirements for termination. 

On review, the appellate court found the motion for continuance lacked good cause because the father’s release date was not imminent, and his earliest possible release was two and one-half years away at the time of the hearing. A continuance would only delay permanency for K.E., with no guarantee that the father would ever successfully complete services once released. The agency case manager and CASA believed K.E. needed permanency, which supported termination as in his best interest. The court also found the father’s criminal and drug history, along with his failure to show an ability to provide for K.E. upon his release, was sufficient to show he could not remedy the basis for K.E.’s removal. 

The Indiana Supreme Court found the termination clearly erroneous. It concluded the evidence failed to show the father would not remedy the conditions resulting in the K.E.’s removal or that he posed a threat to K.E.’s well-being. 

Indiana courts have upheld the rights of incarcerated parents who still had a year or more to serve before possible release, and no bright-line rule has been established for when release must occur to maintain parental rights. The father’s release was pending and less than a year away. 

However, the potential release date is only one consideration. The court did not seek to establish a higher burden on incarcerated parents based on their possible release dates nor reduce the burden of proof merely because a parent is incarcerated. Because the court did not consider the release date alone determinative, it considered whether other evidence showed a reasonable probability that the father would be unable to remedy the conditions for removal. 

Despite the father’s criminal and substance abuse history, the trial court did not adequately balance his recent improvements at the time of the termination hearing against his patterns of conduct. Determining if the father could remedy the conditions that caused K.E.’s removal required assessing his fitness at the time of the termination hearing, considering evidence of changed conditions.

In addition, the evidence did not establish the father posed a threat to K.E.’s well-being. While the child welfare agency recommended termination on grounds that K.E. deserved permanency, the case manager said it was unlikely he would have been harmed by delaying termination. Regardless of whether the father’s rights were terminated, he would have continued to be part of K.E.’s life, as long as he remained sober and law-abiding. K.E.’s paternal aunt, who had custody, testified that she hoped the father would become the child’s caregiver and did not insist on immediate adoption. Moreover, parental rights are not to be terminated because a “better home” is available for the child.