AF v. MCOFC

• Decision Date: 12 February 2002
• Docket Number: No. 49A02-0106-JV-418.,49A02-0106-JV-418.
• Citation: 762 N.E.2d 1244
• Parties: In re the Matter of the Involuntary Termination of the Parent-Child Relationship of A.F. and M.F., Minor Children, and their Father, Michael Faver, Sr., Appellant-Respondent, v. MARION COUNTY OFFICE OF FAMILY AND CHILDREN, Appellee-Petitioner, and Child Advocates, Inc., Appellee-Guardian Ad Litem.
• Court: Indiana Appellate Court

762 N.E.2d 1244

In re the Matter of the Involuntary Termination of the Parent-Child Relationship of A.F. and M.F., Minor Children, and their Father, Michael Faver, Sr., Appellant-Respondent, v. MARION COUNTY OFFICE OF FAMILY AND CHILDREN, Appellee-Petitioner, and Child Advocates, Inc., Appellee-Guardian Ad Litem.

No. 49A02-0106-JV-418.

Court of Appeals of Indiana.

February 12, 2002.

Jan B. Berg, Indianapolis, IN, Attorney for Appellant.

Loretta A. Olesky, Child Advocates, Inc., Tammi Forster, Marion County Office of Family and Children, Indianapolis, IN, Attorneys for Appellees.

OPINION

MATHIAS, Judge.

Michael Faver ("Father") appeals the trial court's order terminating his parental rights to his now fifteen-year old daughter A.F. and eleven-year old son M.F. Father argues that the findings of fact utilized by the trial court were deficient and cannot support the trial court's termination of Father's parental rights, thereby mandating another trial.

We affirm.

Facts and Procedural History

The facts most favorable to the judgment reveal that in 1986, Father and Kathy Helmerson ("Mother") were living in Broward County, Florida, with Mother's daughter from a previous relationship, C.J. On July 14, 1986, Mother gave birth to their daughter, A.F. While living in Florida, C.J. and A.F. were removed from Mother and Father's custody and placed in foster care. In February 1989, Father and Mother had another daughter, L.F., and upon L.F. testing positive for cocaine at birth, she was also removed from Father and Mother's custody. At the age of six months, L.F. was adopted. Sometime after L.F.'s birth, Father and Mother moved to Evansville, Indiana, abandoning A.F. and C.J. in Broward County.

Although neither Father nor Mother notified Broward County authorities of their new residence, after conducting a diligent search in anticipation of future reunification with the children, Broward County authorities located Father and Mother in late 1989. Also in anticipation of reunification with the children, Broward County enlisted the services of the Vanderburgh County Office of Family and Children ("VCOFC") to assist it in monitoring Father's and Mother's compliance with court-ordered services, including counseling, parenting classes, and a substance abuse evaluation. On May 16, 1990, M.F. was born to Mother. Father and Mother separated shortly after M.F.'s birth, and M.F. lived with Mother. Because Father failed to participate in the court ordered services, Broward County officials awarded custody of C.J. and A.F. to Mother, and in January 1991, C.J. and A.F. were flown to Evansville where the three were reunited. VCOFC continued to monitor Mother until Broward County released wardship in December 1991. Sometime after December 1991, C.J., A.F., and M.F. began living with Father. In February 1993, VCOFC received an anonymous tip that C.J. and M.F. had been molested. VCOFC conducted an investigation, which revealed that Mother could not be located and had abandoned the children. Because Father was not C.J.'s natural father, VCOFC removed C.J. from Father's custody, and she was eventually adopted.

In March 1993, VCOFC again investigated Father after learning that A.F. had been observed initiating sexual contact with M.F. Father entered into an informal adjustment, under which he was ordered to cooperate with services and was monitored by VCOFC in lieu of removal of the children. During this time, Father participated in family counseling with A.F., but was not amenable to change, blaming problems the children were having "on other people, never accepting responsibility himself." R. at 269. Father often missed therapy sessions and often failed to follow through with the Child Protective Services ("CPS") case manager. Id.

In July 1993, during the informal adjustment period, VCOFC received a report that Father had physically abused A.F. and M.F. The children had sustained injuries after being spanked by Father, and Father admitted to spanking them with a wooden cutting board. As a result, VCOFC filed a Child in Need of Services ("CHINS") petition, and the children were removed from Father's care and custody. Father was subsequently charged with and convicted of Battery, as a Class D felony because of the spanking.¹

In November 1993, Father was ordered to participate in services prior to reunification with the children.² Father did not comply with the court ordered services and was ordered again to participate in January 1994. Father did not comply with the court ordered services, and was again ordered to participate in July 1994. In October 1995, following the Vanderburgh county court's July 1994 order, the court found Father to be in contempt for his lack of participation, and as a result, VCOFC subsequently filed a Petition to Involuntarily Terminate the Parent Child Relationship. In response to the Petition, Father relocated to Indianapolis, Indiana, and began to submit reports from service-providers, none of whom had contact with VCOFC. Contrary to the advice of A.F.'s therapist, the Vanderburgh court placed the children back in Father's Marion County home in August 1996, and released wardship in November 1996.

In March 1999, after A.F. and M.F. had repeatedly run away and Father had refused to retrieve them and bring them home on several different occasions, Marion County Office of Family and Children ("MCOFC") began to investigate Father, and entered into a service referral agreement³ with Father whereby MCOFC agreed to monitor the family in lieu of removing the children from Father's custody. MCOFC began to conduct home-based counseling and observed father to be controlling, often placing blame on his children for family problems. The counseling was unsuccessful and the family remained in turmoil.

On August 17, 1999, MCOFC filed a CHINS Petition because the children again had run away, and Father had again refused to retrieve them. A.F. and M.F. were removed from Father's care and custody and were adjudicated children in need of services on September 24, 1999. On that date, Father was advised of his rights as a parent involved in a CHINS proceeding, which included a warning that the CHINS determination could lead to involuntary termination proceedings. On October 5, 1999, after conducting a dispositional hearing, and after Father had admitted the specific allegations in the CHINS petition, Father was ordered to participate in services, including completion of a drug and alcohol assessment, a parenting assessment, home-based counseling, and parenting classes. Following the dispositional hearing, both A.F. and M.F. were removed from Father's care and custody under a dispositional decree, and Father was ordered to visit with both of them.

In October 1999, Father's visits with A.F. were stopped upon the recommendation of A.F.'s therapist, and at A.F.'s request, although he did have an opportunity to see her at court proceedings. In June 2000, a visit was arranged between Father, A.F., and M.F. Both A.F. and M.F. refused to attend the visit. When the case manager phoned Father to discuss the children's refusal, he indicated that he had forgotten about the visit. R. at 137. Father stopped visiting the children completely in June 2000.

Father participated in the family therapy sessions with M.F. from November 1999 through April 2000. According to the testimony of Tina Flack ("Ms. Flack"), the family therapist from the Children's Bureau, these sessions failed to improve the relationship between M.F. and Father. Ms. Flack testified that M.F. "would get uncomfortable and shut down and refuse to talk." R. at 218. In response to M.F.'s detached behavior, Father would become frustrated, telling M.F. during one session, "[I]f you're not going to talk to me, then I'm going to leave. We have to make this work, if you're not willing to work or talk to me, then I'll just sign the papers and you won't be my son anymore." Id. Ms. Flack opined that this behavior was harmful to M.F.'s emotional well-being. Father chose to stop participating in the sessions, altogether, in April 2000.

Both children suffer from multiple physical and emotional problems. A.F. was diagnosed with oppositional-defiant disorder, post-traumatic stress disorder, and a thought disorder. She has disrupted placements due to verbal and physical aggression. M.F. has displayed verbal and physical aggression, and he displays a guarded personality and has difficulty expressing his feelings. M.F. also has a problem with encopresis, or difficulty releasing his bowels. Both A.F. and M.F. have stated repeatedly that they experienced abuse in the home of their father and do not wish to return. Since being removed from Father's care and being placed in foster care, A.F. has not attempted to run away, and M.F. has shown improvement in his behavior at home and at school.

The trial court conducted a bench trial, which commenced on January 22, 2001, and continued on February 23, 2001, and March 23, 2001. Following the trial, the court took the matter under advisement and scheduled an in camera interview with the children. After in camera interviews with the children, the trial court received proposed findings of fact and conclusions of law from all interested parties. The trial court adopted MCOFC's proposed findings verbatim and ordered Father's parental rights terminated on June 8, 2001. Father now appeals.

Discussion and Decision

Father first argues that because the trial court adopted MCOFC's findings of fact in their entirety and without revision, they were not the product of a disinterested mind, and therefore were improperly utilized to support the trial court's decision to terminate Father's parental rights. We disagree.

In Tri-City Plaza Bowl v. Estate of Glueck, this court made the following observation as to a trial court's verbatim adoption of proposed findings of fact:

When the trial judge signs the findings of fact and conclusions of law, they be

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