In re Term. of Parent-Child Relat. of A.B.

• Citation: 888 N.E.2d 231
• Decision Date: 03 June 2008
• Docket Number: No. 45A03-0712-JV-567.,45A03-0712-JV-567.
• Parties: In the Matter of the TERMINATION OF the PARENT-CHILD RELATIONSHIP OF A.B., child, and Angela B. (Mother) and Brian J. (Father), Appellants-Respondents, v. Lake County Department of Child Services, Appellee-Petitioner.
• Court: Court of Appeals of Indiana

888 N.E.2d 231

In the Matter of the TERMINATION OF the PARENT-CHILD RELATIONSHIP OF A.B., child, and

Angela B. (Mother) and Brian J. (Father), Appellants-Respondents, v. Lake County Department of Child Services, Appellee-Petitioner.

No. 45A03-0712-JV-567.

Court of Appeals of Indiana.

June 3, 2008.

Marce Gonzalez, Jr., Dyer, IN, Attorney for Appellant, Angela Bradley.

Deidre L. Monroe, Gary, IN, Attorney for Appellant, Brian Jacques.

Eugene M. Velazco Jr., Merrillville, IN, Attorney for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

Angela B. ("Mother") and Brian J. ("Father") appeal the involuntary termination of their parental rights to their daughter, A.B., claiming the Lake County Department of Child Services ("LCDCS") failed to prove by clear and convincing evidence that continuation of both parent-child relationships pose a threat to A.B.'s well-being. Concluding that the trial court's judgment terminating Mother's and Father's parental rights to A.B. is clearly erroneous, we reverse.

Facts and Procedural History

On September 10, 2004, Mother took her then seven-month-old daughter, A.B., to the hospital because one of the toes on her right foot had become infected and had turned black despite the use of antibiotic ointment at home. While Mother and A.B. were at the hospital, a hospital staff member contacted the LCDCS. The investigating caseworker subsequently took emergency custody of A.B. on the basis of suspected medical neglect by Mother.

On September 21, 2004, a detention hearing was held. Mother was present but was not represented by counsel. At the detention hearing, the juvenile court determined that there was probable cause to believe A.B. and her three older siblings, An.B., E.B., and R.J., were children in need of services ("CHINS"). All four children were made temporary legal wards of the State. A.B., who had been placed at Nazareth Home, was ordered to remain physically removed from the family home. Mother, however, was permitted to retain physical custody of A.B.'s siblings because there was no evidence of neglect, medical or otherwise, toward the older children.¹ The juvenile court further ordered Mother and Father to participate in drug and alcohol evaluations, along with any resulting treatment recommendations, and parenting classes.

The LCDCS filed separate petitions alleging the children were CHINS on October 15, 2004. On December 6, 2004, the juvenile court held an initial hearing on the CHINS petition. Both parents were present, but neither parent was represented by counsel. Mother and Father both admitted to the allegations contained in the CHINS petitions. The juvenile court subsequently found the children to be CHINS and proceeded to disposition. The parents were ordered to participate in the previously recommended services.

Both parents complied with all court orders. Mother participated in parenting classes, underwent a drug evaluation, and submitted to random screens. Similarly, Father complied with the juvenile court's orders by enrolling in Apostolic Youth and Family Services, where he submitted to a drug evaluation and random drug screens, completed parenting classes, and participated in individual counseling.

Before the CHINS proceedings, Mother, Father, and the children had been living with Father's parents due to their poor economic circumstances. Approximately three weeks before the injury to A.B.'s toe, however, Father moved out of the family home due to personal difficulties with his mother, ("Grandmother").² Eventually, Mother and Father decided to move the entire family out of the grandparents' home because of the escalating chaos there. The search for suitable housing, however, was unsuccessful, due to the parents' poor economic status and their ineligibility for public housing assistance. Consequently, Mother and Father made the decision to relocate to Mother's hometown of Altoona, Pennsylvania, where both Mother and Father had requested and obtained transfers from their employers and where arrangements had been made for the family to rent a home owned by Mother's uncle.

On May 2, 2005, Mother and Father attended a review hearing during which they requested that the LCDCS wardships of A.B., An.B., and R.J. be dismissed so that the family could move to Pennsylvania. The juvenile court dismissed the wardships as to A.B.'s siblings, who were still living with Mother and Father, without objection from the LCDCS. The court also ordered that the parents no longer needed to submit to drug screens. A.B., however, was not returned to Mother's and Father's care. LCDCS caseworker Judith Kelley testified that the reason she could not recommend dismissing the LCDCS's wardship of A.B. at the same time as her two older siblings, despite the fact that the parents had both successfully completed all court-ordered services and had done "basically whatever the Court had asked them to do[,]" was because "of the problems in the home ... because of the grandmom. And [A.B.'s] toe still [needed] that surgery. So we didn't want to put her in jeopardy." Tr. at 74-75.

Despite the juvenile court's refusal to return A.B. to her parents and dismiss her case, the parents proceeded to move to Altoona, Pennsylvania. A.B. remained at Nazareth Home. As a result of the family's relocation to Pennsylvania, there was no visitation between A.B. and her parents from June 2005 through March 2006.

Meanwhile, the CHINS case pertaining to A.B. progressed. Following their move to Pennsylvania, the parents missed two court hearings, one in August 2005 and one in October 2005. It was at the October 2005 hearing that the juvenile court ordered the permanency plan changed from reunification with the parents to "reunification with the parents or termination of parental rights and adoption." Appellant Father's App. at 15 (emphasis added).

Mother and Father thereafter attended a review and permanency hearing held on March 6, 2006. At that hearing, the juvenile court ordered all visitation between A.B. and the parents to be discontinued. The court thereafter adopted a new permanency plan that called for the termination of Mother's and Father's parental rights and the subsequent adoption of A.B. The juvenile court further ordered that A.B. be removed from Nazareth Home and placed in a pre-adoptive foster home.

Mother, upset by the court's ruling, left the hearing early. However, after the hearing concluded, Mother contacted caseworker Kelley to ask for her help in reinstating visitation. Caseworker Kelley advised Mother to petition the court for a visitation rehearing, which Mother did. Mother thereafter remained in Indiana for the next several weeks in order to attend the visitation rehearing while Father returned home to care for the other children. During this time, Mother was not permitted to visit with A.B. The juvenile court again denied Mother's request for reconsideration of visitation, and Mother eventually returned home to Pennsylvania.

Despite the juvenile court's second ruling denying the parents' request for visitation with A.B., caseworker Kelley continued to maintain contact with Mother and Father. In September 2006, caseworker Kelley initiated expedited proceedings, through an Interstate Compact Agreement³, for a background check and home study in order to determine whether A.B. could be reunited with her parents in Pennsylvania. Mother and Father received and completed the requisite forms, obtained the necessary money orders for payment, and returned all documents to Pennsylvania authorities via U.S. mail. In October 2006, the parents received the results of their background checks, which came back "clean." Tr. at 243. When Mother telephoned the Pennsylvania caseworker, as he had instructed her to do, to inform him she had received the background results and was ready to proceed with the home study, she was told a home study could no longer be done because her case had been closed. Mother was further informed that the case could only be re-opened by authorities in Indiana. Mother telephoned caseworker Kelley in Indiana to ask for her assistance in re-opening the case. Caseworker Kelley agreed to help, but no study was ever conducted. The evidence is conflicting as to why the home study was never performed.

Meanwhile, A.B. was living with licensed foster parent Cynthia Cyprian. Cyprian, who was employed by the Lake County Juvenile Court as the Assistant Director of CASA, had attended the initial detention hearing in this case and had thereafter visited with A.B. at Nazareth Home as part of her official duties. Cyprian testified that she then began visiting with A.B. regularly, feeding and playing with her, and had become attached to A.B. Upon learning that A.B. had been ordered placed into a pre-adoptive home, she requested Mentor, Cyprian's private foster care placement agency, to submit her home study for consideration by LCDCS for possible placement. Mentor submitted Cyprian's home study to LCDCS, who, on December 1, 2005, placed A.B. in Cyprian's home.

The LCDCS thereafter filed a petition for the involuntary termination of Mother's and Father's parental rights. A consolidated fact-finding hearing commenced on April 23, 2007, and concluded on July 30, 2007. Mother and Father were both present and represented by counsel. At the time of the termination hearing, A.B. remained in Cyprian's care. Cyprian testified that she wished to adopt A.B. should termination of the parents' rights to A.B. be ordered. The juvenile court took the matter under advisement and, on August 29, 2007, issued its judgment terminating both Mother's and Father's parental rights to A.B. This appeal ensued.

Discussion and Decision

We begin by noting that this Court has long had a highly deferential standard of review in cases concerning the termination of parental rights. In re K.S., 750 N.E.2d 832, 836 (Ind.Ct.App.2001). Thus, when reviewing the termination of parental rights, we will not reweigh the...