Lead Opinion
Case Summary
The trial court terminated Father's parental rights on the grounds that (1) the reason for his child's placement outside of Father's home will not be remedied; and (2) the continuation of the parent-child relationship poses a threat to the well-being of the child. Concluding that the evidence does not clearly and convincingly demonstrate that Father's parental rights should be terminated, we reverse the judgment of the trial court.
Facts and Procedural History
On February 18, 2006, a son, L.A. (sometimes referred to as "Child") was born out
The Perry County Department of Child Services ("DCS") became involved with Mother and her children in February 2006 due to allegations of lack of supervision, educational and medical neglect, and Mother's drug use. On December 21, 2006, DCS received a report that unknown to Mother, two of her younger children were discovered by police playing in the parking lot of a motel unsupervised and two of her older children hаd travelled to a nearby town alone. The children were thus removed from Mother's care based on a lack of supervision and on January 4, 2007, DCS filed individual petitions alleging each child was a child in need of services ("CHINS"). With respect to L.A., noting "[alddress [ujnknown," DCS named Father as a party to the petition. Ex. Tr. (Exhibit B).
After a review hearing held on July 12, 2007, at which both Mother and Father appeared, the trial court entered an order finding among other things, "mother and child shall continue to participate in the case plan." Ex. Tr. (Exhibit K). No findings were entered with respect to Father. Father later testified that during the summer of 2007, he initially was allowed limited visitation with Child, however visitation was discontinued in September 2007, apparently because paternity had not yet been established. On February 12, 2008, DCS filed a petition to terminate both Mother's and Father's parental rights. In May 2008 Father sought paternity testing and filed a petition to establish paternity of Child which the trial court granted on September 30, 2008. From July 11, 2008 through January 29, 2009, Father was allowed supervised visitation with Child.
At a review hearing held November 25, 2008, at which Father appeared but Mother did not, the trial court entered several findings including, "Mother has not complied with the case plan. Father has complied with the case plan.
After a hearing conducted approximately three months later, on February 17, 2009, the trial court entered an order granting DCS' petitions to terminate the parental rights of Father with respect to I.A. and the parental rights of Mother regarding six of her seven children.
a. The child has been removed from his parents for at least six (6) months under a dispositional decree of the Perry Cireuit Court, dated April 12, 2007
b. The child has been removed from his parents and has been under the supervision of a county Office of Family and Children for at least fifteen (15) of the last twenty-two (22) months.
c. There is a reasonable probability that:
1. The conditions that resulted in the child's removal or the reasons for the placement outside the parent's home will not be remedied in that:
i. The Father, [J.H.], has not bonded with the child after six (6) months of Parent-Aid[e] services.
ii. The Father, [J.H.], needs lots of direction regarding simple tasks relating to the care of the child.
fii. Evidence presented from the Parent-Aid{el caseworker that there has been no progress in the relationship between the father and the child in six (6) months of services.
iv. The Mother, [D.A.], has not visited the child since July, 2008.
v. The Mother, [D.A.], has continued, repeated drug use.
vi. The Mother, [D.A.], has demonstrated a lack of supervision of the children.
vii The Mother, [D.A.], was terminated from the Perry County CHINS Drug Court.
vili. The Mother, [D.A.], left Stepping Stones Drug Recovery Program before completion of the program.
ix. The Mother, [D.A.], failed to cooperate with Parent-Aid[e].
x. The Mother, [D.A.], failed to cooperate with her Department of Child Services caseworker.
xi. The Mother, [D.A.], has failed to cooperate with any services offered to her by the Perry County Department of Child Services....
2. Continuation of the parent-child relationship poses a threat to the well-being of the child in that the mother, [D.A.], continues to abuse illegal substances, lacks supervision of the children and has not remedied any of the causes for removal in the underlying CHINS proceeding. The father, [J.H.], has not bonded with the child.
d. Termination is in the best interest of the child in that the child is in a stable environment. The child needs permanency.
Appellant's App. at 10-11. Father appealed, and in a memorandum decision the Court of Appeals affirmed. See J.H. v. Ind. Dep't of Child Servs., No. 62A01-
Standard of Review
When reviewing the terminatiоn of parental rights, we do not reweigh the evidence or judge witness credibility. Bester v. Lake County Office of Family & Children,
Trial Rule 52(A) provides that "the court on appeal shall not set aside the findings or judgment unless clearly erroneous." In implementing this directive, however, it is appropriate to take into consideration the express statutory requirement that "[a] finding in a proceeding to terminate parental rights must be based upon clear and convincing evidence." Ind. Code § 31-37-14-2. To construe harmoniously the requirements of the statute and Rule 52(A), we hold that to determine whether a judgment terminating parental rights is clearly erroneous, we review the trial court's judgment to determine whether the evidence clearly and convincingly supports the findings and the findings clearly and convincingly support the judgment.
Discussion
I.
The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children. Meyer v. Neb.,
(A) one (1) of the following exists:
(i) the child has been rеmoved from the parent for at least six (6) months under a dispositional decree;
(ii) a court has entered a finding ... that reasonable efforts for family preservation or reunification are not required, including a description of the court's finding, the date of the finding, and the manner in which the finding was made; or
(ii) the child has been removed from the parent and has been under the supervision of a county office of family and children for at least fifteen (15) months of the most recent twenty-two (22) months;
(B) there is a reasonable probability that:
(1) the conditions that resulted in the child's removal оr the reasons for placement outside the home of the parents will not be remedied; or
(ii) the continuation of the parent-child relationship poses a threat to the well-being of the child;
(C) termination is in the best interests of the child; and
(D) there is a satisfactory plan for the care and treatment of the child.
DCS bears the burden of proving these allegations by clear and convincing evidence. Bester,
IL.
Father challenges the sufficiency of the evidence supporting the trial court's judgment with regard to Indiana Code sections 31-85-2-4(b)(2)(B) and (C). We first observe that seсtion 31-85-24(D0(@)(B) is written in the disjunctive. Thus DCS was required to prove by clear and convincing evidence only one of the two requirements of subsection (B). See Bester,
A. Remediation of Condition
In order to terminate the parent child relationship DCS must show by clear and convincing evidence that there is a reasonable probability that "the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied." Ind. Code § 31-35-24(b)(2)(B)G). The record shows that ILA. was removed from the home of his parents
In order to determine whether the conditions which led to the placement of L.A. outside the home of Father are not likely to be remedied, the trial court must first determine what conditions led to DCS placing and then retaining L.A. in foster care rather than placing him with Father. See In re AAC.,
Because there is nothing before us indicating the conditions that led DCS to place IA. in foster care and to continue L.A.'s out-of-home placement rather than place
B. Continuation of the Parent-Child Relationship
As an alternative ground for terminating Father's parental rights the trial court determinеd that because Father had "not bonded" with L.A., the continuation of the parent-child relationship posed a threat to the child's well-being. See Ind. Code § 31-385-2-4(b)(2)(B)(i). The record shows that although Father attended the initial CHINS hearing, as well as several review hearings, he did not seek genetic testing or file a petition to establish paternity until sometime in April 2008. After a June test result revealed that Father was the natural parent of IA., DCS granted Father visitation with L.A. beginning July 11, 2008. Initially, the visits were conducted for an hour to an hour and a half, one day a week outside of Father's home. Tr. at 46. Thereafter the visits were increased to twice a week and were conducted at Father's residence. Id. at 46-47. All of the visits were supervised by a parent aide employed by the Lincoln Hills Development Corporation-a social services agency. And Father never cancelled or missed a single visit.
Leanne Halford was the parent aide
They were real uncomfortable with each other so that's been our main focus is try to get them to bond as a father and a child should. Still to this day at visits [Father] doesn't show excitement when [I.A.] arrives. It's just kind of take him in, get the coat off, go in, have a snack. [Father] still chooses not to have dinner with [LA.]. Instead, it's me [and Father], sitting watching [LA.] eat, which is kind of not the best cireumstance for the child. I have encouraged [Father] to eat with him just because that's a bonding issue as well and interacting at the dinner table.
Tr. at 66-67. Halford continued stating:
[LA.], still after all this time doesn't refer to [Father] as daddy. It's just I feel like the child, he just knows he goes there, visits for a couple hours, two times a week. He lеaves, and then there's no-like I said, when we arrive there's no hugging or kissing. There's no ['I miss you, what have you been doing.['] None of that goes on....
Tr. at 72.
We first observe that by concluding Father had not bonded with L.A., the trial court and DCS apparently are referring to what they perceive as insufficient emotional attachment and interaction between Father and Child. The record certainly demonstrates that Father's parenting skills are lacking. But a case plan for reunification was never developed for Father indicating what was expеcted of him. And thus, other than parent aide, no services were provided to assist Father in
In sum, DCS has failed to prove by clear and convincing evidence that there is a reasonable probability that by continuing the parent-child relationship, the emotional or physical well-being of I.A. is thereby threatened. See Egly v. Black-ford County Dep't of Pub. Welfare,
Conclusion
DCS has not proven by clear and convincing evidence that there is a reasonable probability that the reasons for Child's placement outside of Father's home will not be remedied or that the continuation of the parent-child relationship between Father and Child poses a threat to the well-being of the child.
Notes
. We use Ex. Tr. to refer to the Volume of Exhibits. The pages therein are unnumbered. Tr. refers to the Transcript of Evidence.
. The record does not reveal that a case plan was ever entered with respect to Father. As discussed in further detail below there was apparently an informal adjustment whereby Father was provided a parent aide in conjunction with supervised visits with Child.
. On motion of the DCS the trial court dismissed the Petition to Terminate Parental Rights with respect to Mother's oldest child, A.S., who was seventeen years of age at the time of the termination hearing and objected to being adopted. Tr. at 7.
. Our determination in this regard applies to Father only. Mother did not contest the trial court's judgment and is not a party to this appeal.
. See Tipton v. Marion County Dep't. of Pub. Welfare,
. See, eg., Order on Review Hearing dated July 17, 2007, "Wardship shall continue and the above captioned child [I.A.] shall continue to be placed with [D.] and [D.G.], foster parents." Ex. Tr. (Exhibit K); Order on Review Hearing dated September 14, 2007, "The above captioned children, [J.A.], [K.A.], [LA.], and [L.T.] shall remain in thеir current placement with [D.] and [D.G.], foster parents." Ex. Tr. (Exhibit M); Order on Permanency Hearing dated December 12, 2007, "Wardship shall continue and the child [L.A.] shall continue in the current placement of [D.] and [D.G.]." Ex. Tr. (Exhibit N); Order on Review Hearing dated January 31, 2008, "The above captioned child [LA.] shall be removed from his present foster home and placed in the home of [M.] and [J.R.], foster parents." Ex. Tr. (Exhibit 0); Order on Review Hearing dated June 2, 2008 "The above captioned child [LA.] shall remain in current placement." Ex. Tr. (Exhibit P); Order on Periodic Case Review dated December 2, 2008, "Thе cause of the child's out-of-home placement has not been alleviated.... [WJardship should continue and the present placement is appropriate," Ex. Tr. (Exhibit R).
. Halford testified that the parent aide responsibilities included offering "services with parenting, child development, safety, housekeeping, any other concern clients may have. If they need further education we help them with that. We reach out to the community. Do anything that-personal issues they are having, we address those with them and help them the best thаt we can, or we refer them on to other services if we cannot help them personally." Tr. at 63
. Having made this determination we need not address Father's additional contention that DCS failed to prove that termination of his parental rights is in the child's best interests. See Moore v. Jasper County Dep't. of Child Servs.,
Dissenting Opinion
dissenting.
I respectfully dissent. I recognize thаt termination of parental rights presents an intrusion by the courts into constitutionally protected interests of the parent. And protection of constitutional rights may require enhanced appellate serutiny. See Bose Corp. v. Consumers Union of United States, Inc.,
The statute calls for both of these determinations critical to a termination proceeding in languаge that appears in the same form as language setting out the elements of a crime or tort. But the determinations the trial court is called upon to make in a termination proceeding turn on questions such as the degree of confidence we have that the parent will in fact maintain a decent home for the child and the reliability of assurances that a straighter path has been found. These determinations call on the trial court to make not only an evaluation of credibility of witnesses, but also an evaluation of the reliability of their assurances as to various assertions and promises. Resolution of these questions often is more in the nature of predictions of future events, not findings as to what has already occurred. As such, an accurate and detailed rationale for a termination is more difficult to write with precision and frequently, as in this case, ultimately turns significantly on what the gut of the finder of fact is telling him or her. Such a finding is not as readily reviewed by an appellate court because it cannot easily be picked aрart into its components, and is therefore less susceptible to the analysis an appellate court usually undertakes. Factual determinations are reviewed under the deferential "clearly erroneous" standard. The standard of review in termination cases, however, is all over the map. See James W. Paulsen, Family Law: Parent and Child, 51 S.M.U. L.Rev. 1087, 1124-26 & ns. 282-86 (1998) (noting the wide range of the standard of review by appellate courts in various jurisdictions, from de novo to abuse of discretion). Because of the unusual nature of termination determinations, I would give even wider deference to the trial judge's conclusion as to what is in the best interests of the child, and whether the conditions are likely to improve.
Of course, some challenges to terminations are based on failure to comply with procedural requirements. These are readily reviewed as any other procedural error. But when, as here, the issue is the sufficiency of the trial court's findings as to the ultimate substantive requirements for a termination my lack of confidence in appellate reviеw leads me to defer to the trial court in all but the obvious miscarriage.
On this record, I believe the trial court could have concluded that although the father never directly contributed to the reasons for placing the child in foster, he lacked the ability to provide proper parenting and care for the child both immediately and in the future. As we recently reiterated, in ruling on a termination petition, the parents' interests must be subordinated to the child's. In re GY.,
In sum, I would not disrupt this child's current placement based on failure of the triаl court to articulate its reasoning in sufficient detail. In recent years, for good reason, we and most states have taken legislative and administrative steps to avoid prolonged and repeated disruptions in a child's placement. This also favors leaving in place an order that may be on the edge of acceptability but where future review is unlikely to result in a different