Divided appeals panel upholds termination of dad’s parental rights

A father who disregarded court-mandated drug screens, left his child with a relative and refused to participate in services lost his termination of parental rights appeal Tuesday. One judge, however, would have reversed based on the facts of a case that began with the child’s removal due to mother’s drug use and what the dissenting judge saw as “an effort to punish Father.”

The majority affirmed the termination in In the Matter of the Termination of the Parent-Child Relationship of C.C. (Minor Child) and B.C. (Father) v. Indiana Department of Child Services, 20A-JT-289.

C.C. was 6 years old in October 2017 when he was removed from mother’s care in Anderson due to her drug use, at which time the Department of Child Services moved to have C.C. adjudicated a child in need of services. Ultimately, the child was left in father B.C.’s care, and DCS ordered him to participate in services and submit to drug screens, among other things.

In February of 2018, the majority wrote, “Father left Child with maternal great-grandmother, stating that ‘he was done with placement and court orders,’ leading to Child’s placement in his current foster home,” Chief Judge Cale Bradford wrote. Over the months that followed, father submitted several drug screens that were positive for methamphetamine as the placement plan for C.C. shifted from reunification to adoption.

Father’s parental rights were terminated in December 2019, and the majority affirmed on appeal.

“We conclude that DCS produced ample evidence to establish a reasonable probability that the reasons for continued placement outside of Father’s home would not be remedied,” Bradford wrote in an opinion joined by Senior Judge John Baker. “… Father directs our attention to caselaw from other states in support of his claim that his drug use is not a proper basis for the termination of his parental rights; however, this caselaw is non-binding, and suffice it to say that we find it unpersuasive in any event.

“… A parent who fails to complete services, screens positive for illegal substances, admits to using illegal substances, and refuses to submit to court-ordered drugs screens for nearly one and one-half years faces repercussions in a case where his parental rights are at issue. One such repercussion is the termination of his parental rights. That is what happened in this case, and the juvenile court was justified in its decision,” the majority held.

Judge Rudolph Pyle dissented, however, pointing out facts he disputed with the majority. Pyle would reverse the trial court.

“The facts of this case are important. As my colleagues ably point out, DCS removed C.C. from Mother’s home in October 2017 because of Mother’s heroin use and subsequent incarceration. Although DCS placed C.C. with Father, he felt that the DCS case manager ‘automatically started judging [him]. She automatically acted like [Mother] was better than [Father]. She automatically acted like [Father] was a heroin addict and she just treated [him] in that way’” Pyle wrote. “… Father complained to DCS about the case manager and sent DCS copies of the texts that the case manager had sent to him. As a result of the case manager’s ‘inappropriate conduct, [DCS] took her off the case’ at an unknown time and assigned a different case manager to the case.”

Pyle also took issue with the majority’s reliance on father’s purported comment that he was “done with placement and court orders.” Pyle wrote in a footnote, “It is important to note that these are not Father’s words, as my colleagues seem to suggest in their opinion. Under direct examination by DCS’s counsel, Case Manager Marlaina Bertram, who was not present when Father dropped C.C. off with Maternal Great-Grandmother, referred to her case notes in the file and claimed this was the reason why Father dropped off C.C.”

The dissenting judge also said the trial court “completely ignored” a therapist who said father was “making progress on many fronts.” He also questioned why neither DCS nor the trial court sought a contempt order against father for violating court orders. “If Father’s drug usage was a significant concern, surely such an effort could have been made.”

“In this case, the evidence introduced by DCS, considered by the trial court, and interpreted by my colleagues suggests an effort to punish Father for his refusal to submit to court-ordered drug screens,” Pyle concluded. “… Based on these facts, where the apparent reason for C.C.’s removal from Father’s care was not drug related, I believe DCS has failed to meet its burden, and I respectfully dissent because I do not believe termination is warranted at this time.”