Alexander v. La Porte County Welfare Dept.

• Decision Date: 28 June 1984
• Docket Number: No. 3-883A278,3-883A278
• Citation: 465 N.E.2d 223
• Parties: Judith ALEXANDER, Appellant (Respondent below), v. LA PORTE COUNTY WELFARE DEPARTMENT, Appellee (Petitioner below).
• Court: Indiana Appellate Court

Page 223

465 N.E.2d 223

Judith ALEXANDER, Appellant (Respondent below), v. LA PORTE COUNTY WELFARE DEPARTMENT, Appellee (Petitioner below).

No. 3-883A278.

Court of Appeals of Indiana,

Third District.

June 28, 1984.

R. Steven Bom, Barbara S. Friedman, LaPorte, for appellant.

Phyliss A. Benn, LaPorte, for appellee.

STATON, Presiding Judge.

In March 1981, Alexander's daughter, Jovetta, was declared a "Child in Need of Services". ¹ In March 1983, Alexander's parental rights to Jovetta were involuntarily terminated pursuant to IC 31-6-5-4. ² On appeal, Alexander raises the following issues:

I. Whether the evidence was sufficient to support the finding that there was a reasonable probability that the condition which resulted in Jovetta's removal from the home would not be remedied; and,

II. Whether parental rights may be terminated because of abusive acts committed by one other than a parent.

We affirm.

I.

Probability of Remedy

IC 31-6-5-4 provides:

"31-6-5-4. Termination of parent-child relationship involving delinquent child or child in need of services.--A petition to terminate the parent-child relationship involving a delinquent child or a child in need of services may be signed and filed with the juvenile or probate court only by the attorney for the county department or the prosecutor; that person shall represent the interests of the state in all subsequent proceedings on the petition. The probate court has concurrent original jurisdiction with the juvenile court in proceedings on the petition. The petition shall be entitled 'In the Matter of the Termination of the Parent-Child Relationship of ______, a child, and ______, the child's parent (or parents)' and must allege that:

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

(3) Termination is in the best interests of the child; and

(4) The county department has a satisfactory plan for the care and treatment of the child...."

Alexander alleges the evidence did not support the court's finding that there was a reasonable probability that the condition which led to Jovetta's removal from Alexander's home would not be remedied. In considering whether the evidence was sufficient to support the finding, we will neither reweigh the evidence nor judge the credibility of witnesses. Wardship of Bender (1976), 170 Ind.App. 274, 352 N.E.2d 797. Only the evidence most favorable to the judgment will be considered. Id.

The evidence most favorable to the LaPorte County Department of Public Welfare (DPW) is as follows. When Jovetta was nine months old, Alexander began living with her boyfriend, David Martinez, and has lived with him continuously since. Soon after, Alexander contacted the DPW and requested that Jovetta be placed for adoption. She was referred to another agency. One year later, the DPW was notified of a police report alleging neglect of Jovetta. The record reveals that at that time Jovetta had lost her ability to walk and was losing her hair.

The DPW had temporary wardship of Jovetta between March 1977 and June 1978, although Jovetta remained in Alexander's home. A pediatrician who examined Jovetta in March 1977 testified that at that time Jovetta's condition constituted "severe failure to thrive." Jovetta was hospitalized. The day after her release, she was seen again by the pediatrician whose examination revealed extensive, fresh bruises on Jovetta's face and back.

Medical records dated August 1980 indicate "possible child abuse". Jovetta's left cheek was reddened; at the time, Alexander stated that Jovetta had fallen.

In January 1981, the DPW removed Jovetta from Alexander's home after a report from Jovetta's school principal of suspected child abuse. A DPW caseworker reported that on that day Jovetta had a large red mark on her cheek and that the bridge of her nose was swollen. Her forehead was bruised and scraped, she had a black eye, and there was a large lump on the back of her head. Alexander told the caseworker that the injuries were a result of Jovetta's fall while getting out of the car that morning. Jovetta told the pediatrician that she had been struck and pushed down by Martinez.

The pediatrician examined Jovetta further and discovered hypertrophic burn scars on her legs and buttocks which were "secondary to deep third degree burns that had long since healed". Jovetta told the pediatrician that she had been forced by Martinez to sit on a hot radiator. The pediatrician found Alexander's explanation, that Jovetta had backed into the heater, to be "totally implausible". Alexander admitted that the burns had occurred at a time when Martinez was babysitting with Jovetta.

Jovetta's foster mother testified that Jovetta reported to her that Martinez had, in the past, put shampoo into Jovetta's eyes and mouth, had put her head in the toilet, and had burned her finger by holding it over a lighter. At trial, Alexander admitted that perhaps Martinez had "over-punished" Jovetta. She testified that Martinez had "over-whipped" Jovetta and that Alexander realized that Martinez "just went a little too far sometimes".

There was considerable testimony at trial that Jovetta had become a severely disturbed child as a result of the abuse. A foster parent testified that Jovetta was afraid of Martinez and never wanted to see him again. She testified that just prior to the termination hearing Jovetta had stated, "I'm scared because I have to go back to my mother and Dave (Martinez)".

After Jovetta was taken from Alexander's custody, Alexander signed a six-month agreement with the DPW agreeing to participate in weekly counseling and Parents Anonymous. She agreed to cooperate in protecting Jovetta from her abuser, Martinez, to visit with Jovetta at least once every two weeks, and to contact her caseworker every two weeks regarding her progress toward the goal of regaining custody of Jovetta. She agreed that if she continued to live with Martinez she would actively help him "work toward a non-abusive way of dealing with Jovetta".

Alexander attended counseling sessions, but when asked by a DPW worker whether she had made progress with Martinez regarding his abusive treatment, Alexander reported that she had not. A caseworker testified that it was intended that Martinez would participate in the counseling with Alexander. He missed scheduled sessions during June of 1981, and attended only two of the scheduled sessions in August....