In ‘painful’ case posing ‘terrifying precedent’, COA reverses mom’s TPR, lets dad’s stand

The Indiana Court of Appeals in a decision admonishing the Indiana Department of Child Services has reversed the termination of a mother’s parental rights to her son, while upholding the termination of his father’s parental rights in a separate case.

A unanimous appellate panel in December 2016 reversed a decision terminating mother K.T. and father O.G.’s parental relationships with their child, O.G. II, holding that the evidence did not support the termination of their parental rights.

In May 2011, the child was removed from the parents’ home and later found to be a child in need of services due to their drug use and domestic violence issues. DCS later moved to terminate the parent-child relationship in May 2015, and the motion was granted in April 2016. But both parents appealed and the appellate court reversed in their favor, finding that the Department of Child Services had exhibited an “extraordinarily troubling pattern of behavior.”

However, the trial court again terminated their parental rights in January 2020 after finding the relationships were not in the child’s best interests, among other things.

The COA in a Wednesday decision affirmed the termination of father’s parental rights in Termination: O.G. v. Indiana Department of Child Services, et al., 20A-JT-00272, concluding that he failed to complete DCS services, cannot provide a safe environment for child, has not communicated with child since 2013, and is consistently incarcerated for violent crimes.

However, it reversed the termination of Mother’s parental rights and remanded in Termination: K.T. v. Indiana Department of Child Services, et al., 20A-JT-00271, after finding her behavior to be starkly different from father’s during the proceedings.

Specifically, the appellate panel concluded that mother is a fit and available parent and that terminating her rights is “contrary to the purpose of the termination statute and to case law.”

It first noted that instead of a finding of unfitness, the trial court found that child’s relationship with mother poses a threat to child’s well-being because he has suffered “significant anxiety and behavioral problems” and expressed a strong desire to avoid contact with his mother.

“These are insufficient reasons to break the parent-child relationship. The emotional and behavioral problems Child experienced throughout the proceedings on remand are not the result of anything Mother did or did not do but were instead compounded by DCS’s lackluster reunification attempts. Reunification was never going to be an easy road, but DCS’s missteps exacerbated the already tense reunification situation,” Judge Nancy Vaidik wrote for the appellate panel, joined by Judge L. Mark Bailey and Judge Leanna Weissmann.

The appellate panel further noted that the Marion Superior Court’s finding that “DCS has made reasonable efforts toward reunification” is clearly erroneous.

“We acknowledge the importance of permanency and stability in a child’s life. But this alone cannot trump the fundamental and constitutional right parents have to the care and custody of their children,” the panel wrote. “Essentially, the trial court terminated Mother’s parental rights because — in the four non-consecutive months she was allowed to attempt parenting time — she was ‘unable to build a bond with [Child.]’

“However, Mother and Child previously had a strong bond, a bond DCS wrongly severed years ago and made no true attempt to repair. Allowing DCS to remove a child from its fit parent, stall reunification until there is no relationship left, and then claim reunification cannot occur because of the lack of relationship would set a terrifying precedent,” the appellate panel wrote.

Acknowledging that “reunification could have serious psychological and emotional ramifications for Child,” the appellate court concluded that the alternative is worse.

“DCS cannot be allowed to wrongly withhold a child from a fit, loving, and available parent for years and then ask this Court to affirm that injustice in the name of the child’s happiness. This is a painful decision, and there is no happy outcome. We cannot give Mother and Child back the relationship they once had or the years they have lost together. We cannot give Child the future he wants with his foster family. We can only follow the law, which requires us to reinstate the parental rights of Mother, a willing and able natural parent,” it concluded.

The matter was therefore remanded to the trial court with instructions to hold a hearing within 30 days of this opinion, “at which the parties can present evidence and recommendations as to how to best proceed with a quick and safe reunification between Mother and Child.”

It further advised that a specific plan “for actual reunification” should be created and adhered to and that the “the trial court need not await a certification of this opinion by the Clerk of Courts before conducting the hearing and beginning reunification.”