In the Matter of the Involuntary Termination of Parent-Child Relationship of I.A. J.H. (Father), Appellant (Respondent below), v. Indiana Department of Child Services, Appellee (Petitioner below).
No. 62S01-1003-JV-148.
Supreme Court of Indiana.
Oct. 5, 2010.
934 N.E.2d 1127
The plaintiff‘s failure to avail herself of the Gaming Commission‘s voluntary program may be appropriately considered in the allocation of comparative fault between the plaintiff and the casino, but it should not prematurely preclude the plaintiff from having her day in court to seek to hold the casino accountable in damages for what appears from the allegations to be a blatant breach of duty.
This Court has often provided protection for vulnerable individuals against the unreasonable actions of others. See, e.g., Livingston v. Fast Cash USA, Inc., 753 N.E.2d 572 (Ind.2001) (holding that payday loan lenders cannot collect finance charges exceeding the statutory maximum annual percentage rate and mentioning the criminality of loansharking); Picadilly, Inc. v. Colvin, 519 N.E.2d 1217 (Ind.1988) (holding that the common law duty to exercise reasonable care still exists for alcohol providers despite the enactment of drаm shop statutes); Scott County Sch. Dist. One v. Asher, 263 Ind. 47, 324 N.E.2d 496 (1975) (recognizing the ability of minors to avoid or disaffirm contracts entered into, with the exception of contracts for necessaries). Similarly, today‘s case calls for upholding our common law principles rather than implying statutory repeal thereof. I therefore dissent.
Separately, I commend Justice Boehm‘s separate concurrence, which thoughtfully questions the Webb v. Jarvis three-factor framework and urges that we revisit our traditional but redundant application of foreseeability to analyze both duty and proximate cause, and I encourage a careful consideration of his law journal article and its recommendations.
Mark Small, Indianapolis, IN, Attorney for Appellant.
Robert J. Henke, Rachael Armstrong, Dana J. Phillips, Indiana Department of Child Services, Indianapolis, IN, Attorneys for Appellee.
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, I.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 had 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 I.A., noting “[a]ddress [u]nknown,” DCS named Father as a party to the petition. Ex. Tr. (Exhibit B).1 After a hearing held on March 30, 2007, at which both Mother and Father appeared pro se, the trial court entered an order granting the CHINS petition. The order included a case plan for reunification that provided in relevant part, “[t]he mother shall participate in the Perry County Department of Child Services’ CHINS Drug Court. . . . The mother shall participate in supervised visits with the child. The mother shall continue to participate with parent-aide services. The mother shall obtain and maintain employment. The mother shall complete a parenting skills assessment and follow any and all recommendations of the assessment. The mother shall attend and participate in individual counseling to address issues of domestic violence, neglect and abuse, and any other areas that are deemed appropriate and necessary.” Ex. Tr. (Exhibit J). With respect to Father, the trial court‘s order declared, “[t]he father waives his right to be represented by counsel. The father admits that the child is a child in need of services.” Id. The trial court‘s order was entered April 12, 2007.
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.2 Mother has not
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.3 The order involving I.A. provided in pertinent part:
- The child has been removed from his parents for at least six (6) months under a dispositional decree of the Perry Circuit Court, dated April 12, 2007
- 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.
- There is a reasonable probability that:
- 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:
- The Father, [J.H.], has not bonded with the child after six (6) months of Parent-Aid[e] sеrvices.
- The Father, [J.H.], needs lots of direction regarding simple tasks relating to the care of the child.
- Evidence presented from the Parent-Aid[e] caseworker that there has been no progress in the relationship between the father and the child in six (6) months of services.
- The Mother, [D.A.], has not visited the child since July, 2008.
- The Mother, [D.A.], has continued, repeated drug use.
- The Mother, [D.A.], has demonstrated a lack of supervision of the children.
- The Mother, [D.A.], was terminated from the Perry County CHINS Drug Court.
- The Mother, [D.A.], left Stepping Stones Drug Recovery Program before completion of the program.
- The Mother, [D.A.], failed to cooperate with Parent-Aid[e].
- The Mother, [D.A.], failed to coopеrate with her Department of Child Services caseworker.
- The Mother, [D.A.], has failed to cooperate with any services offered to her by the Perry County Department of Child Services . . . .
- 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.
- 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. 62A01-0905-JV-252, 2009 WL 4723182 (Ind.Ct. App. Dec. 10, 2009). Having previously granted transfer, we now reverse the judgment of the trial court.4
When reviewing the termination of parental rights, we do not reweigh the evidence or judge witness credibility. Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 147 (Ind.2005). We consider only the evidence and reasonable inferences that are most favorable to the judgment. Id. We must also give “due regard” to the trial court‘s unique opportunity to judge the credibility of the witnesses.
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., 262 U.S. 390, 399 (1923). A parent‘s interest in the care, custody, and control of his or her children is “perhaps the oldest of the fundamental liberty interests.” Troxel v. Granville, 530 U.S. 57, 65 (2000). Indeed the parent-child relationship is “one of the most valued relationships in our culture.” Neal v. DeKalb County Div. of Family & Children, 796 N.E.2d 280, 285 (Ind.2003) (quoting Tillotson v. Clay County Dep‘t of Family & Children, 777 N.E.2d 741, 745 (Ind. Ct.App.2002), trans. denied). We recognize of course that parental interests are not absolutе and must be subordinated to the child‘s interests when determining the proper disposition of a petition to terminate parental rights. In re D.D., 804 N.E.2d 258, 264-65 (Ind.Ct.App.2004), trans. denied. Thus, “[p]arental rights may be terminated when the parents are unable or unwilling to meet their parental responsibilities.” Id. at 265.
(A) one (1) of the following exists:
(i) the child has been removed 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 оr 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
(iii) 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:
(i) the conditions that resulted in the child‘s removal or 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) therе 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, 839 N.E.2d at 148.
II.
Father challenges the sufficiency of the evidence supporting the trial court‘s judgment with regard to
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.”
In order to determine whether the conditions which led to the placement of I.A. outside the home of Father are not likely to be remedied, the trial court must first determine whаt conditions led to DCS placing and then retaining I.A. in foster care rather than placing him with Father. See In re A.A.C., 682 N.E.2d 542, 544 (Ind.Ct.App.1997) (noting that when the child is not in the custody of the parent, the focus of the termination inquiry is what conditions led to DCS retention of the custody of the child). Second, the trial court must determine whether there is a reasonable probability that those conditions will not be remedied. Id. In this case the trial court addressed the second requirement, but not the first. That is to say, although the trial court‘s termination order sets forth why placement outside of Father‘s home will not be remedied, namеly: Father had not bonded with I.A. after six (6) months of Parent-Aide services; Father needed considerable direction regarding simple tasks relating to I.A.‘s care; and there had been no progress in the relationship between Father and I.A. despite six (6) months of services; the trial court‘s order does not indicate the conditions that led DCS to place I.A. in foster care or the reasons I.A. remained in foster care rather than being placed with Father. In essence, the factors identified by the trial court as conditions that will not be remedied are relevant only if those conditions were factors in DCS’ decision to place I.A. in foster care in the first place. Not only is the trial court‘s order terminating Father‘s parental rights silent on this point, but also the record before us is silent. Instead, in the several review hearings conducted in this case the trial court‘s order simply reflects that I.A. was either placed in foster care or remained in foster care.6
Because there is nothing before us indicating the conditions that led DCS to place I.A. in foster care and to continue I.A.‘s out-of-home placement rather than placе
B. Continuation of the Parent-Child Relationship
As an alternative ground for terminating Father‘s parental rights the trial court determined that because Father had “not bonded” with I.A., the continuation of the parent-child relationship posed a threat to the child‘s well-being. See
Leanne Halford was the parent aide7 that supervised the visits between Father and I.A. With respect to the issue of bonding Halford testified:
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 [I.A.]. Instead, it‘s me [and Father], sitting watching [I.A.] eat, which is kind of not the best circumstancе 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:
[I.A.], 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 leaves, 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 I.A., the trial court and DCS apparently are referring to what they perceive as insufficient emotional attаchment 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 expected 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. Blackford County Dep‘t of Pub. Welfare, 592 N.E.2d 1232, 1233, 1234 (Ind.1992) (noting that clear and convincing evidence need not reveal that “the continued custody of the parents is wholly inadequate for the child‘s very survival,” rather, it is sufficient to show that “the child‘s emotional and physical development are threatened” by the respondent parent‘s custody). The involuntary termination of pаrental rights is the most extreme sanction a court can impose on a parent because termination severs all rights of a parent to his or her children. In re L.S., 717 N.E.2d 204, 208 (Ind.Ct.App.1999), trans. denied. Therefore, termination is intended as a last resort, available only when all other reasonable efforts have failed. Id. We are not convinced that all other reasonable efforts have been employed in this case to unite this father and son.
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.8 We therefore reverse the judgment of the trial court terminating Father‘s parental rights.
SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur.
BOEHM, J., dissents with separate opinion.
BOEHM, Justice, dissenting.
I respectfully dissent. I recognize that 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 scrutiny. See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 498-504 (1984). The role of the appellate courts, however, is somewhat different in some termination cases than it is in determining whether the
The statute calls for both of these determinations critical to a termination proceeding in language 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 straightеr 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 а finding is not as readily reviewed by an appellate court because it cannot easily be picked apart 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 discrеtion). 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 apрellate review 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 G.Y., 904 N.E.2d 1257, 1259 (Ind.2009).
In sum, I would not disrupt this child‘s current placement based on failure of the trial court to articulаte 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