David, J
J.E. is the Father of two children, J.A.E. and K.E. While Mother was pregnant with K.E., Father and Mother were both charged with multiple drug-related criminal offenses. These charges prompted the Indiana Department of Child Services (DCS) to file a petition alleging that J.A.E. was a Child in Need of Services (CHINS), which the trial court ultimately found J.A.E. to be. Eventually, both Mother and Father’s parental rights over J.A.E. were terminated. Thus, the current case only relates to the parental rights of K.E.
When K.E. was born in July of 2012, Mother had been released on conditional bond for the aforementioned criminal charges. Father was already incarcerated, and, shortly after K.E.’s birth, was convicted on the same charges. Mother ultimately plead guilty to her charges in October of 2012. Just over a month after Mother’s guilty plea, while released on bond and awaiting sentencing, Mother left K.E. unattended at an adult party and could not be located until the following morning. This resulted in K.E. also being found a CHINS. Since Father was already incarcerated, DCS attempted to provide services only to Mother, and the plan was reunification between Mother and child. Ultimately, DCS filed for termination of parental rights due to Mother’s lack of progress and Father’s continued inability to care for K.E. due to his incarceration.
At the termination hearing, the Court Appointed Special Advocate (CASA) and the DCS case manager both recommended termination of Mother and Father’s parental rights. However, Father maintained that upon his release he was prepared to be a better parent and to stay drug-free. Father relied upon the 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) immediately upon his release to demonstrate his willingness and ability to parent.
The trial court entered findings of fact and conclusions of law, determining that under Indiana Code § 31-35-2-4(b)(2), the conditions that led to removal were unlikely to be remedied, Mother and Father posed a threat to K.E.’s well-being, and termination was in K.E.’s best interest. Thus, Mother and Father’s parental rights were terminated.
As this Court has recognized, incarceration is an insufficient basis for terminating parental rights. See e.g. In Re G.Y., 904 N.E.2d 1257, 1264-66 (Ind. 2009). In the present case, Father made extensive efforts to better himself by learning parenting skills, addressing his problems with substance abuse, and establishing a bond with both of his children. We accept transfer in this case and hold that there was insufficient evidence to demonstrate a reasonable probability that Father could not remedy the conditions for removal or that Father poses a threat to K.E.’s well-being. Accordingly, we reverse the trial court’s order terminating Father’s parental rights.
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K.E. was removed while Father was incarcerated. Thus, the primary condition for K.E.’s removal as to Father was Father’s inability to provide care and supervision for K.E. due to his incarceration. The trial court’s findings supporting the determination that Father would not remedy the conditions for removal include that: 1) Father has been unable to receive services from DCS due to his incarceration; 2) Father has a lengthy criminal history; 3) Father is currently incarcerated for his most recent offenses, was denied a sentence modification, and his current release date is not until September 19, 2016;5 4) “Father has no income, no employment, no place of residence suitable for caring for child,” and Father plans to live with his father (K.E.’s paternal grandfather) upon release; and 5) Father has a history of drug and alcohol use. (App. at 18-19.)
First, we are not persuaded that there is any evidence in the record to contravene Father’s statements that upon his release he plans to live with his father (K.E.’s paternal grandfather) and work with him through Vectren. While Father did not substantiate this claim, DCS did not present any evidence to support a contradictive finding. No evidence indicates that Father was fabricating his plans for employment or that his father’s home is unsuitable for children. [Footnote omitted.] Father’s prior unemployment is insufficient to show that he has no future plans for employment. Thus, the findings relating to Father’s lack of future employment and having no suitable home for K.E. are clearly erroneous.
Second, the remaining factual findings are insufficient to establish by clear and convincing evidence that Father cannot remedy the conditions for removal. It is not disputed that Father must obtain release from incarceration before he can provide care and support for K.E. Father’s release from incarceration is pending. Although at the time of the termination hearing Father’s possible release was still over two years away that alone is insufficient to demonstrate that the conditions for removal will not be remedied. Indiana courts have upheld parental rights of incarcerated parents who still had a year or more to serve before possible release, and we have not established a bright-line rule for when release must occur to maintain parental rights.
For example, in In Re G.Y., this Court reversed the termination of a mother’s parental rights. 904 N.E.2d at 1266. The hearings on termination took place in January and February of 2008, and at the time of the hearing, Mother’s release date was May 30, 2010. Id. at 1259. Yet, Mother’s release from prison was still considered to be “imminent,” and this influenced the Court’s decision that termination was not in the child’s best interest. Id. at 1265. The Court also considered Mother’s completion of programs while incarcerated, her good-faith efforts to better herself, securing job placement after release, and working towards her degree. Id. at 1262. See also In Re J.M., 908 N.E.2d 191, 194-96 (Ind. 2009) (affirming trial court’s denial of termination when hearing occurred January 8, 2008, Mother’s release date was April 2009, with possible release in May 2008, Father’s release date was January 2010, with possible release in January 2009, while also considering both parents’ participation in services while incarcerated, and establishment of a permanency plan after release), But cf. Castro, 842 N.E.2d at 370, 374 (termination affirmed on appeal where Father serving forty-year sentence, had been incarcerated entirety of child’s life, Father had served ten years of sentence, child was already nine years old and had adapted well to foster family, and Father still had over six years to serve before release, demonstrating that Father was “helpless to remedy those conditions [of removal] within a meaningful timeframe”). In each case, the release dates varied and served as only one factor considered by the court.
In the current case, Father’s release is pending, and at this point, is less than a year away. However, as in the cases outlined above, the potential release date is only one consideration of many that may be relevant in a given case. We do not seek to establish a higher burden upon incarcerated parents based upon their possible release dates nor do we believe the burden of proof should be reduced merely because a parent is incarcerated. Because the release date alone is not determinative, we consider whether other evidence, coupled with this consideration, demonstrates by clear and convincing evidence a reasonable probability that Father would be unable to remedy the conditions for removal.
Most significantly, Father has made substantial efforts towards bettering his life through programs that were available during his incarceration. Since Father’s incarceration, he has completed twelve programs, the majority of which were completed voluntarily and did not result in sentence reductions. These programs include: 1) The Spiritual Literacy Program: Reading the Sacred in Everyday Life; 2) Community Services (completing over 320 hours); 3) Prevention and Relationship Enhancement Program; 4) Developing a Winning Attitude; 5) Please Understand Me; 6) Financial Planning; 7) Safe People; 8 ) The Seven Habits of Highly Effective People; 9) Commitment to Change; 10) Responsible Parenting; 11) PLUS Core Values; and 12) Houses of Healing. Father also began attending Alcoholics Anonymous and Narcotics Anonymous. These programs particularly targeted parenting and life skills, along with addressing substance abuse. Father also testified that he is prepared to be a good father, is done with drug use, and that he would like to receive additional services from DCS upon his release. Father even expressed that if H.D. ultimately adopts K.E. and J.A.E. he hopes to remain in both of their lives as much as possible.
In addition, H.D. brings both K.E. and J.A.E. to visit Father every other week for two to three hours. The DCS case manager testified that Father interacts well with the children during visitations, even though they occur in the secure environment of the prison. H.D. testified that both children have bonded with Father, and K.E. recognizes Father and knows who he is. Father also makes nightly phone calls to H.D.’s house to talk to K.E. and J.A.E. and tell them goodnight. The CASA testified that Father has made “great strides” since he has been incarcerated. (Tr. at 132.)
Despite Father’s criminal and substance abuse history, his recent improvements at the time of the termination hearing were not balanced against his habitual patterns of conduct. Given the substantial efforts that Father is making to improve his life by learning to become a better parent, establishing a relationship with K.E. and J.A.E., and attending substance abuse classes, it was not proven by clear and convincing evidence that Father could not remedy the conditions for K.E.’s removal. As indicated in Judge Baker’s dissent, there is seemingly nothing else that Father could have been doing to demonstrate his dedication to obtaining reunification. Because there was insufficient evidence to establish this factor for termination, the findings cannot support the conclusion reached by the trial court, making the conclusion clearly erroneous.
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Conclusion
Without clear and convincing evidence to support each of the factors set out in Indiana Code § 31-35-2-4(b), we cannot terminate a parent-child relationship. As such, we reverse the trial court’s order terminating Father’s parental rights. Footnote omitted.] Our holding does not impact the underlying CHINS proceedings as to K.E. The orders entered in the underlying CHINS proceeding for K.E., lower court cause number 82D01-1211-JC-459, will remain in effect.
Rush, C.J., Dickson, Rucker, and Massa, J.J., concur.