Appellate court reverses TPR for speculative incarceration

A Vigo County father’s parental rights must be restored, the Indiana Court of Appeals has ruled, finding insufficient evidence to support a termination order.

Child A.B. was taken into the custody of the Department of Child Services after his mother rammed her vehicle into father M.B.’s vehicle while A.B., who was just over a year old, was in his mother’s car. M.B. admitted to smoking marijuana the day before the incident and refused to take a drug test.

A.B. was adjudicated a child in need of services about six months later in September 2017 with the agreement of M.B., who also agreed to participate in services and consistently participated in visitation with A.B. The only goal father did not achieve was maintaining a part-time job, though he did apply with multiple employes.

A trial home visit between A.B. and M.B. began in mid-August 2017 but ended the following October after M.B. was arrested on federal drug distribution charges. Though he was incarcerated, M.B. continued to converse with his DCS family case manager about placement for A.B. and her general well-being.

But in August 2018, DCS moved to terminate M.B.’s parental rights, arguing the father would remain incarcerated for several more years. M.B., however, said he believed he would only serve two years at the most, though his trial had been postponed four times at that point.

Child advocates testified that A.B. was doing well in her foster home and recommended that her foster placement be made permanent. However, their testimony stopped short of opining on what was in the child’s best interests.

The Vigo Circuit Court ultimately terminated M.B.’s parental rights in January 2019, writing a brief order that noted DCS’s belief that he would be imprisoned for several more years. But the Indiana Court of Appeals found insufficient evidence to support that termination order and, thus, reversed the order Tuesday in a memorandum decision, In the Matter of the Termination of the Parent-Child Relationship of A.B. (Minor Child) and M.B. (Father) v. The Indiana Department of Child Services, 19A-JT-571.

“Here, it seems that the termination of Father’s parental rights was based solely on his pre-trial incarceration and the assumption that it might last several more years,” Judge Cale Bradford wrote for the unanimous appellate panel. “Father, however, has not been convicted, and it is, of course, not certain that he will be. Given Father’s presumption of innocence and speculation as to the length of his incarceration, this is insufficient to support termination.”

Further, Bradford said the termination order does not mention M.B.’s criminal history — all of which occurred before the CHINS case — so the COA assumed that history was not a factor in the trial court’s decision.  And even though A.B. is said to be doing well in foster placement, “that does not necessarily mean Father’s parental rights should be terminated.”

“It is our sincerest hope that all children who must be placed in a foster home thrive in their placement,” Bradford said, “but the fact that it might be a better home does not warrant the termination of a biological parent’s rights.

“A review of the record in this case indicates that the juvenile court based its decision solely on the fact that Father was being held in pre-trial incarceration with, at best, a purely speculative length of incarceration,” the judge continued. “Under this particular set of circumstances, we cannot say that DCS produced sufficient evidence to support the juvenile court’s determination that termination of Father’s parental rights was in Child’s best interests.”

The case was remanded for further proceedings.