Adoption of D.V.H., Matter of

• Decision Date: 09 December 1992
• Docket Number: No. 49A04-9201-CV-25,49A04-9201-CV-25
• Citation: 604 N.E.2d 634
• Parties: In the Matter of the ADOPTION OF D.V.H. S.L., Appellant-Respondent Below, v. MARION COUNTY DEPARTMENT OF PUBLIC WELFARE, Appellee-Petitioner Below. 1 .
• Court: Indiana Appellate Court

Page 634

604 N.E.2d 634

In the Matter of the ADOPTION OF D.V.H. S.L., Appellant-Respondent Below, v. MARION COUNTY DEPARTMENT OF PUBLIC WELFARE, Appellee-Petitioner Below.

No. 49A04-9201-CV-25 ¹.

Court of Appeals of Indiana Third District.

Dec. 9, 1992.

Transfer Denied Feb. 11, 1993.

I. Marshall Pinkus, Zinkan O'Hara & Pinkus, Indianapolis, for appellant.

Elizabeth G. Filipow, Indianapolis, for appellee.

STATON, Judge.

In this consolidated appeal, S.L. ("Mother") challenges an order of the Marion County Superior Court, Juvenile Division (terminating her parental rights in D.H.) and an order of the Marion County Superior Court, Probate Division (denying Mother Petition to Intervene and to Set Aside Adoption). Mother presents four issues for review:

I. Whether there exists clear and convincing evidence to support the termination of Mother's parental rights.

II. Whether the trial court should have continued foster care placement in lieu of termination of Mother's parental rights.

III. Whether the trial court erroneously admitted hearsay testimony.

IV. Whether the probate court erroneously denied Mother's Petition to Intervene and Set Aside Adoption.

We affirm.

Mother suffers from a borderline personality disorder, which has precipitated Mother's hospitalization on numerous occasions throughout her adolescence and adulthood. On May 15, 1985, Mother gave birth to D.H. Unable to care for D.H. on a daily basis, Mother placed D.H. in the care of her former foster mother, E.W.

On March 23, 1987, the Marion County Department of Public Welfare ("DPW") filed a petition alleging Mother's inability to adequately supervise D.H. and provide for his physical needs. On February 4, 1988, D.H. was found to be a child in need of services; he remained in E.W.'s care. On June 5, 1989, the DPW filed a petition to terminate Mother's parental rights. Hearing was held on March 12 and 13, 1991; the petition was granted on August 29, 1991.

On August 30, 1991, E.W. filed a petition for adoption of D.H. in the Marion County Superior Court, Probate Division. The probate court issued a decree of adoption on September 12, 1991. On September 23, 1991, Mother filed a Motion to Set Aside the Adoption; she subsequently filed a motion for injunctive relief and a petition to intervene. All pending motions were denied by the probate court on October 7, 1991. This appeal ensued.

I. Sufficiency of the Evidence

The time-honored right of parents to establish a home and raise their children is protected by the Fourteenth Amendment to the United States Constitution. In the Matter of Tucker (1991), Ind.App., 578 N.E.2d 774, 778, trans. denied (quoting Pierce v. Society of Sisters (1925), 268 U.S. 510, 534, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070; Meyer v. State of Nebraska (1923), 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042). However, these parental interests are not absolute and must be subordinated to the child's interest in determining an appropriate disposition of a petition to terminate parental rights. In the Matter of Perkins (1976), 170 Ind.App. 171, 181, 352 N.E.2d 502, 509, reh. denied, trans. denied.

To effect the involuntary termination of a parent-child relationship, the DPW must present clear and convincing evidence to establish the elements of IND.CODE 31-6-5-4(c):

(1) the child has been removed from the parent for at least six (6) months under a dispositional decree;

(2) there is a reasonable probability that:

(A) the conditions that resulted in the child's removal will not be remedied; or

(B) the continuation of the parent-child relationship poses a threat to the well-being of the child (3) termination is in the best interests of the child; and

(4) there is a satisfactory plan for the care and treatment of the child.

The trial court should judge a parent's fitness as of the time of the termination hearing, taking into consideration evidence of changed conditions. J.K.C. v. Fountain County DPW (1984), Ind.App., 470 N.E.2d 88, 92. The parent's habitual patterns of conduct must be evaluated to determine whether there is a substantial probability of future neglect or deprivation. Id. When reviewing a termination of parental rights, we will not reweigh the evidence or judge the credibility of the witnesses. We will consider only the evidence that supports the judgment and the reasonable inferences to be drawn from the evidence. Egly v. Blackford County DPW (1992), Ind., 592 N.E.2d 1232, 1235.

During the years that D.H. was under a dispositional decree as a child in need of services, caseworkers from Visiting Nurses Services, Family Works and Family Connections supervised Mother's visits with D.H. and counseled Mother as to appropriate parent-child interaction. However, caseworker Vicki Gleissner testified that these services produced limited progress over the years. Record, p. 452. Moreover, Mother refused joint counseling with D.H.'s foster mother.

Dr. James Brown of Midtown Mental Health Crisis Intervention Unit testified that Mother had been treated at the crisis center since 1988. Mother was diagnosed as suffering from borderline personality disorder, characterized by unstable interpersonal relationships, an unstable self identity and pervasive instability of moods (for example, unprecipitated severe anxiety and severe depression). Mother's secondary diagnoses included bulimia, major depression and obsessive compulsive neurosis. Record, pp. 472-75. Dr. Brown indicated that Mother had made "average" progress in counseling despite above-average severity of symptoms, but continued to engage in self-mutilation. He indicated that the recommended treatment of Mother's disorder "is years in duration" and would "very likely" require brief periods of hospitalization in the future upon the occurrence of "overwhelming depression or suicidal urges." Record, pp. 481, 495-96.

Sue Cardea, Mother's primary therapist, testified that Mother's significant symptomology had remained the same during her years of treatment. Record, p. 538. These symptoms include intense anxiety, self-destructive acts, ² bulimia, depression, panic attacks and cognitive distortions. When asked to characterize Mother's current emotional state, Cardea responded:

"She's unstable. You know, what can I say. She's ... there are moments when she's fine. They are very short-lived. It's hard to describe because, I mean, you're talking degree. She's not always raging and screaming and whatever."

Record, p. 547

Cardea also related the circumstances of Mother's current lifestyle: involvement in an abusive marriage, housing difficulties, and erratic job attendance because of a compulsion to leave her work site and "go home and confess to her husband." Record, p. 544. Cardea opined that Mother was unable to care for D.H. on a full-time basis as of the time of the hearing. Record, p. 574. ³

Dr. Richard Lawler, a clinical child psychologist, testified that long term foster care poses certain risks for the foster child. He emphasized the child's need for stability and permanence to facilitate interpersonal intimacy and bonding. Additionally, he opined that repetitive court proceedings involving a child were disruptive and provoked anxiety (particularly in the case of a child having the perceptive skills of a child of age 7 or older). Record, pp. 810-816.

Dr. Robert TenEyck, who had conducted a psychological evaluation of D.H., opined that D.H.'s primary bond was with E.W. and that removal from E.W.'s care would be a "disaster." ⁴ Record, pp. 853-54. He further opined that attempts to strengthen the bond between D.H. and Mother would not be in D.H.'s best interests. Dr. TenEyck cautioned that it would be "very destabilizing" to D.H. should he observe Mother's self-abusive behaviors. Record, p. 863. Finally, D.H.'s guardian ad litem--relying upon her interview with D.H. and her review of available records--recommended the termination of Mother's parental rights. Record, p. 1008.

The DPW plan for D.H.'s future consisted of adoption by his foster mother, with whom D.H. had lived almost continuously since his birth. D.H.'s caseworkers testified that E.W. was cooperative with case plans and interacted appropriately with D.H. (who had special needs due to hyperactivity and aggressive behaviors).

The DPW established by clear and convincing evidence that: D.H. was removed from Mother for several years pursuant to a dispositional decree, a reasonable probability exists that the conditions leading to the removal will not be remedied, termination of parental rights is in D.H.'s best interests and a satisfactory plan for D.H.'s care was devised, i.e., adoption by his long-term foster mother.

II. Continuation of Foster Care Placement

Mother next contends that the trial court should have elected to continue D.H.'s status as a foster child, without issuing an order terminating parental rights. She points to E.W.'s testimony that she would be willing to continue to act as D.H.'s foster mother if Mother's parental rights were not terminated. Essentially, Mother restates her claim that the termination of her parental rights was not in D.H.'s best interests.

The DPW presented expert testimony that long-term foster care is unadvisable inasmuch as a child needs permanency and stability. Record, p. 808. Moreover, Dr....