In re G.Y.

• Citation: 904 N.E.2d 1257
• Decision Date: 24 April 2009
• Docket Number: No. 49S02-090-JV-091.,49S02-090-JV-091.
• Parties: In the Matter of the Involuntary Termination Of the Parent-Child Relationship Of G.Y., Minor Child, and His Mother, R.Y., and His Father G.Y. R.Y. (Mother), Appellant (Respondent below), v. Indiana Department of Child Services, Appellee (Petitioner below) and Child Advocates, Inc., Co-Appellee (Guardian Ad Litem).
• Court: Supreme Court of Indiana

904 N.E.2d 1257

In the Matter of the Involuntary Termination Of the Parent-Child Relationship Of G.Y., Minor Child, and His Mother, R.Y., and His Father G.Y.

R.Y. (Mother), Appellant (Respondent below), v. Indiana Department of Child Services, Appellee (Petitioner below) and Child Advocates, Inc., Co-Appellee (Guardian Ad Litem).

No. 49S02-090-JV-091.

Supreme Court of Indiana.

April 24, 2009.

Amy Karozos, Indianapolis, IN, Attorney for Appellant.

Marjorie A. Millman, Seymour, IN, Attorney for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0804-JV-394

SULLIVAN, Justice.

The trial court terminated R.Y.'s parental rights on grounds that the conditions which resulted in her son G.Y.'s removal will not be remedied and that termination is in G.Y.'s best interests. The Court of Appeals affirmed. Concluding that the evidence does not clearly and convincingly demonstrate that R.Y.'s parental rights should be terminated, we reverse the judgment of the trial court.

Background

R.Y. ("Mother") gave birth to G.Y. on April 23, 2004. Mother had been G.Y.'s sole caretaker during the first 20 months of his life and there are no allegations that she engaged in any criminal behavior during this period of time or that she was an unfit parent in any way. But in April, 2003, a year before G.Y.'s birth, Mother had delivered cocaine to a police informant. She was arrested and incarcerated for this offense in December, 2005, i.e., 32 months after the offense and when G.Y was 20 months old. On January 4, 2006, after Mother's multiple attempts to place G.Y. with relatives and friends during her incarceration failed, the Marion County Division of the Indiana Department of Child Services ("State") filed a petition alleging that G.Y. was a Child in Need of Services ("CHINS") because Mother had been unable to make the appropriate arrangements for his care. G.Y. was placed in foster care.

In March, 2006, Mother pled guilty to Dealing in Cocaine as a Class B felony. The Jay Circuit Court entered a judgment of conviction and sentenced her to 12 years, with four years suspended to probation, i.e., eight years of executed time. In May, 2006, with Mother's consent, the Marion Superior Court, Juvenile Division, found G.Y. to be a CHINS. The court ordered continued placement in foster care and "Reunification with parent(s)" as "The Plan for permanency." (Vol. of Exs. at 11.) In July, 2006, the court held a dispositional hearing and thereafter issued a dispositional order directing that G.Y. continue in foster care and that Mother comply with the court's "Participation Decree." Id. at 13-17. The dispositional order again provided "Reunification with parent(s)" as "The Plan for Permanency." Id. at 14. Under the Participation Decree, Mother was ordered, in part, to obtain a source of income and suitable housing, complete home-based counseling, a parenting assessment, parenting classes, and a drug and alcohol assessment. Id. at 16-17. She was also ordered to "[v]isit on a consistent, regular basis as recommended by counselor or caseworker." Id. at 17.

On May 18, 2007, the State filed a "Petition for Termination of the Parent-Child Relationship" between Mother and G.Y. (Appellant's App. 16-17.) The court held fact-finding hearings in January and February, 2008, at which time Mother's date of release from prison was May 30, 2010. (Tr. 6.) On March 26, 2008, the court entered Findings of Fact and Conclusions of Law, ordering Mother's parental rights involuntarily terminated. Mother appealed, contending that there was insufficient evidence to terminate her parental rights and that the State violated her due process rights when it failed to comply with statutory requirements during the termination process. In an unpublished memorandum decision, the Court of Appeals affirmed. R.Y. v. Marion County Dep't of Child Servs., No. 49A02-0804-JV-394, slip op., 895 N.E.2d 741 (Ind.Ct.App. Oct.31, 2008). Mother seeks, and we grant, transfer.

Discussion

I

The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children. Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 147 (Ind.2005) (citing Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (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." Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)). Indeed the parent-child relationship is "one of the most valued relationships in our culture." Id. (quoting Neal v. DeKalb County Div. of Family and Children, 796 N.E.2d 280, 285 (Ind.2003)). We recognize, however, that parental interests are not absolute and must be subordinated to the child's interests in determining the proper disposition of a petition to terminate parental rights. Bester, 839 N.E.2d at 147 (citation omitted). Thus, "[p]arental rights may be terminated when the parents are unable or unwilling to meet their parental responsibilities." Id. (quoting In re D.D., 804 N.E.2d 258, 265 (Ind.Ct.App.2004)).

When reviewing the termination of parental rights, we do not reweigh the evidence or judge witness credibility. Bester, 839 N.E.2d at 147 (citation omitted). We consider only the evidence and reasonable inferences that are most favorable to the judgment. Id. (citation omitted). Here, the trial court entered findings of fact and conclusions thereon in granting the State's petition to terminate Mother's parental rights. When reviewing findings of fact and conclusions of law entered in a case involving a termination of parental rights, we apply a two-tiered standard of review. First, we determine whether the evidence supports the findings, and second we determine whether the findings support the judgment. Id. (citation omitted). We will set aside the trial court's judgment only if it is clearly erroneous. Id. (citing In re Wardship of B.C., 441 N.E.2d 208, 211 (Ind.1982)). A judgment is "clearly erroneous if the findings do not support the trial court's conclusions or the conclusions do not support the judgment." Id. (quoting In re Matter of R.J., 829 N.E.2d 1032, 1035 (Ind.Ct.App.2005)).

Indiana Code § 31-35-2-4(b)(2) requires that a petition to terminate a parent-child relationship involving a CHINS must allege that:

(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 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

(iii) after July 1, 1999, 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 homes 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.

The State's burden of proof in termination of parental rights cases is one of "clear and convincing evidence."¹ I.C § 31-37-14-2; Bester, 839 N.E.2d at 148 (citation omitted). "Clear and convincing evidence need not reveal that `the continued custody of the parents is wholly inadequate for the child's very survival.'" Bester, 839 N.E.2d at 148 (quoting Egly v. Blackford County Dep't of Pub. Welfare, 592 N.E.2d 1232, 1233 (Ind.1992)). "Rather, it is sufficient to show by clear and convincing evidence that `the child's emotional and physical development are threatened' by the respondent parent's custody." Id. (quoting Egly, 592 N.E.2d at 1234).

And the State must prove, by clear and convincing evidence, each and every element set forth in I.C. § 31-35-2-4(b)(2), (A)-(D). In other words, if the State fails to prove any one of these four statutory elements, then it is not entitled to a judgment terminating parental rights. See I.C. § 31-35-2-4(b)(2); Angela B. v. Lake County Dep't of Child Servs., 888 N.E.2d 231, 239 (Ind.Ct.App.2008), trans. denied ("Without clear and convincing evidence to support each of the factors set forth in Indiana Code § 31-35-2-4(b)(2), we cannot affirm the termination of a parent-child relationship."); In re D.Q., 745 N.E.2d 904, 911 n. 2 (Ind.Ct.App.2001) (same).

II

Mother contends that the State did not present clear and convincing evidence that termination of her parent-child relationship with G.Y. is in the child's best interests.

With reference to the child's best interests, the trial court made the following findings:

[G.Y.] has resided in the same foster care placement since January of 2006, at which time he less [sic] than two years old. He is doing exceptionally well and is very attached to his foster parents and foster brothers. This home is pre-adoptive.

Mother has consistent visitation at her prison facility. Visitation is monthly for a one to two hour period. There have been no concerns raised by the monitoring case manager, Wendy Budwig.

Termination of the parent-child relationship is in [G.Y.]'s best interests. Termination and subsequent adoption will provide [G.Y.] the opportunity to be adopted within the safe, stable home he sees as his. He has resided in the home for the last two years of his short life.

The [State's] plan for [G.Y.] is adoption by his foster parents. This plan is satisfactory for his care and treatment.

[G.Y.]'s Guardian ad Litem, Renee...