B.R.F. v. Allen County Dept. of Public Welfare

• Decision Date: 16 May 1991
• Docket Number: No. 02A03-9101-CV-15,02A03-9101-CV-15
• Citation: 570 N.E.2d 1350
• Parties: In the Matter of the Termination of the Parent-Child Relationship of B.R.F., Appellant (Respondent Below), v. ALLEN COUNTY DEPARTMENT OF PUBLIC WELFARE, Appellee (Petitioner Below).
• Court: Indiana Appellate Court

Page 1350

570 N.E.2d 1350

In the Matter of the Termination of the Parent-Child

Relationship of B.R.F., Appellant (Respondent Below), v. ALLEN COUNTY DEPARTMENT OF PUBLIC WELFARE, Appellee

(Petitioner Below).

No. 02A03-9101-CV-15.

Court of Appeals of Indiana,

Third District.

May 16, 1991.

Earl Raskosky, Fort Wayne, for appellant.

Kenneth R. Scheibenberger, Fort Wayne, for appellee.

STATON, Judge.

B.R.F. (Father) appeals from the trial court judgment terminating his parental rights to B.F. (Son). Father presents three issues for our review, which we consolidate and rephrase as: Whether there was sufficient evidence to satisfy the statutory elements for the termination of Father's parental rights.

We affirm.

On November 16, 1987 the Allen County Department of Public Welfare (DPW) filed a petition for Children In Need Of Services (CHINS petition) alleging that Father was unable to provide appropriate housing for his son, and that the son had resided in six (6) different locations in the course of one year. After determining that Son was a child in need of services, the trial court ordered Father to comply with the terms of a Parent Participation Plan (Plan). On December 15, 1989, the DPW filed a petition for termination of the parental relationship. On September 21, 1990, after a hearing on the matter, the court ordered that the parent-child relationship be terminated. It is from this order that Father now appeals.

A petition to terminate a parent-child relationship 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:

(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.

IND.CODE 31-6-5-4(c) (Supp.1990). ¹ Our courts have interpreted this provision as establishing the elements that must be proved in order to effect an involuntary termination of a parent-child relationship. See Matter of Robinson (1989), Ind., 538 N.E.2d 1385; Matter of D.B. (1990), Ind.App., 561 N.E.2d 844. Because of the magnitude of the harm resulting from an erroneous termination, these elements must be proven by clear and convincing evidence. D.B., supra, at 847. In considering whether the evidence is sufficient to support the judgment, this court will neither reweigh the evidence nor judge witness credibility. Only the evidence favorable to the judgment will be considered. Alexander v. LaPorte County Welfare Dep't (1984), Ind.App., 465 N.E.2d 223.

Father does not contend that the first element has not been satisfied; there is no dispute that Son was removed from Father for at least six months under a dispositional decree. Father does take issue, however, with the determination that there is a reasonable probability that the conditions which resulted in the child's removal will not be remedied. Father cites Matter of Lozier (1983), Ind.App., 453 N.E.2d 345, trans. denied, where our court of appeals reversed the involuntary termination of parental rights, finding the local welfare department had not proved that the conditions which resulted in the child's removal would not be rectified. In Lozier, the parent showed a greater willingness to properly care for her child after her return from an eight month absence (to get her "life together"). Id. The evidence supporting the order focused only on conditions and events in the two months following the child's birth. This evidence was found wanting under the clear and convincing standard. Id.

The evidence in this case indicates that Father and Son had lived at six (6) different addresses in the course of one year. When he requested help from DPW, Father and Son were literally living on the streets. After Son had been adjudicated a child in need of services, Father did not fully complete any portion of the Parent Participation Plan except the requirement that he attend parenting classes. In 1988, Father served two months in jail for possessing stolen license plates. In 1989, Father was convicted of possessing a controlled substance and is currently incarcerated. He is scheduled to be released no sooner than October of 1991.

Based on this evidence the trial court found that, over an extended period, Father had displayed an inability to supply his child with the basic necessities of life. Such a pattern of unwillingness to confront parenting responsibilities and to cooperate with counselors--in conjunction with unchanged and unacceptable home conditions--has been held to support a finding that there exists no reasonable probability the unacceptable conditions will be remedied. D.B., supra, at 848; Matter of M.J.G. (1989), Ind.App., 542 N.E.2d 1385. Although Father underscores the evidence from the record favorable to him on this issue, it is not our function to reweigh the evidence. Alexander, supra, at 224. The evidence is sufficient to support the trial court determination.

Moreover, the evidence is adequate to support the finding that continuation of the parent-child relationship poses a threat to the well-being...