Baker v. MARION CTY. OFFICE OF FAMILY AND CHILDREN
| Decision Date | 30 May 2002 |
| Docket Number | No. 49A02-0105-JV-299.,49A02-0105-JV-299. |
| Citation | 768 N.E.2d 1008 |
| Parties | Sharon BAKER and Darryl Cole, Appellants-Respondents, v. MARION COUNTY OFFICE OF FAMILY AND CHILDREN, Appellee-Petitioner, and Child Advocates, Inc., Co-Appellee-Guardian Ad Litem. |
| Court | Indiana Appellate Court |
Katherine A. Cornelius, Indianapolis, IN, Attorney for Appellants.
DeDe Connor, Marion County Office of Family & Children, Loretta Oleksy, Child Advocates, Inc., Indianapolis, IN, Attorneys for Appellees.
Sharon Baker ("Mother") and Darryl Cole ("Father") appeal the Marion Superior Court's order terminating their parental rights to their child, D.C.1 Mother and Father argue that a prohibited conflict of interest arose based upon their joint representation by appointed counsel and that neither Mother nor Father validly consented to a waiver of the conflict.2 Because we find the issue of whether there was a prohibited conflict of interest dispositive, we do not reach the waiver issue.
We affirm.
The facts most favorable to the trial court's judgment reveal that on August 8, 1998, Mother prematurely delivered D.C., a baby girl. Mother admitted that during the pregnancy and just days before delivery, she had used cocaine. Due to medical concerns, D.C. remained in the hospital for approximately three weeks. D.C. was in an emergency shelter care home from the end of August 1998 until the end of October 1998. D.C. was then placed in foster care in a potential pre-adoptive home. Tr. p. 144. D.C. has never lived with Mother or Father.
On August 18, 1998, the Marion County Office of Family and Children ("the MCOFC") filed a Petition Alleging Child in Need of Services on behalf of D.C. Ex. Vol. I, p. 6. Mother and Father each admitted that D.C. was a child in need of services in writing and in open court. Ex. Vol. I, p. 10; Tr. pp. 53-54, 119-20. On September 17, 1998, the trial court held a disposition hearing, at which Father appeared, but Mother did not. The court found that it was in the best interests of D.C. to be placed outside of the home at that time because services that were offered to Mother and Father, in an attempt to have D.C. returned to the home, were either not completed or not effective. Ex. Vol. I, p. 14. At that time, the court ordered Mother and Father into a social services program entitled Parental Participation.
Under Parental Participation, Mother and Father were required to maintain current information with their caseworker, meet with their caseworker weekly, maintain a legal and stable income, obtain and maintain suitable housing with adequate bedding, participate in and successfully complete home-based counseling, complete a parenting assessment and successfully complete any programs recommended pursuant to the parenting assessment results, complete a psychological evaluation, participate in and successfully complete a drug and alcohol assessment and any programs recommended pursuant to the assessment, and lastly, visit D.C. regularly and cooperate with the supervision of D.C. Ex. Vol. I, pp. 15-17.
Dianne Reach ("Reach"), the family's case manager from the MCOFC, began working on D.C.'s case in August 1998. After the initial CHINS hearing in August 1998 and the disposition hearing in September 1998, which outlined the requirements Mother and Father would have to meet in order to obtain custody of D.C., Reach spoke with both parents about the services and sent letters to Mother and Father, detailing what they needed to do and who they needed to contact to make appointments. Tr. p. 143. Reach clearly wrote in the letters that any programs recommended by any of the agencies providing assessments and services should be completed by the next hearing date, which was set for December 15,1998. Ex. Vol. I, pp. 19-23.
Reach testified that Father completed his drug and alcohol evaluation but failed to follow through with recommendations for treatment. Mother failed to keep her appointments for her drug and alcohol evaluation. Both parents participated in the first portion of parenting assessment, but both failed to complete the bonding portion of the assessment because they both failed to keep their visitation appointment. Tr. p. 144. Additionally, both parents were given a list of six different agencies in their area to choose among for parenting classes, and as of the fall 1998, neither parent reported that they had completed parenting classes.
Throughout the fall of 1998, both parents failed to maintain consistent visitation with D.C. When D.C. was in the emergency shelter care home, the foster parents were able to supervise visitations. When Mother and Father complained of transportation problems, Reach sent bus tickets to them, and the foster parents even offered to meet Mother and Father half-way. Mother and Father still failed to visit regularly. After D.C. was moved at the end of October 1998, visitation was established through at least two different visiting centers, wherein the foster parents did not supervise the visits. However, visitation by Mother and Father continued to be inconsistent. At one of the visiting centers, Father and Mother both had thirteen scheduled visits, but only appeared at four. Tr. pp. 60-61,134-35.
A court date was set for January 1999, but neither parent appeared. Mother had been arrested in Tippecanoe County, and was incarcerated there. She was then transported to the Women's State Prison. Throughout Mother's incarceration she regularly mailed letters to Reach, and mailed letters and cards to Reach for D.C. Tr. p. 146. Until April 1999, the MCOFC's plan for D.C. was reunification with Mother and Father; however, in April, the plan for D.C. changed from reunification to adoption. The Petition to Terminate Parental Rights was then filed against Mother and Father on April 19, 1999. Then in May 1999, D.C. was removed from her foster home and placed with her paternal grandmother.
From January 1999 through October 1999, Mother was in the Women's Prison. D.C. was taken to the prison for visits with Mother, and Mother completed parenting classes while incarcerated. Nevertheless, Mother's visitation with D.C. subsided upon her release from prison. Reach again made new referrals for Mother and Father in October 1999. Tr. p. 149. Mother received referrals for drug and alcohol evaluations and for supervised visitations with D.C. at a visiting agency. Mother failed to follow through with any of these referrals, and her lack of consistent visits with D.C. resulted in cancellation of the services. Father also failed to follow through on his new referrals.
Reach testified that neither Mother nor Father completed all of the services required by their Participation Decree established by the juvenile court. Further, Reach testified that neither parent maintained constant contact with her; both had periods when they would lose touch with Reach, but that both always eventually recontacted her. Tr. p. 150. Reach had contact with Father the day before the January 18, 2001 termination hearing, but had not had any contact with Mother for several months.
Lance Brown ("Brown"), an addictions counselor at Community Addiction Services of Indiana (CASI), conducted a drug and alcohol assessment on Mother in August of 2000, upon referral of Mother to CASI by MCOFC. Tr. pp. 14, 16. Mother told Brown that she had used cocaine about two to four times per week for the last four years, and that she also used marijuana and alcohol, but not to the extent of her cocaine use. Tr. p. 14. Mother informed Brown that she suffered from and received medication for depression and epileptic seizures, and that she suffered from a partial paralysis in her left hand as a result of a drive-by shooting. Tr. p. 16. Brown's recommendation for Mother was dual diagnosis treatment for depression and cocaine dependency at a mental health center. Brown testified that Mother's depression should be treated as the primary diagnosis, and the cocaine abuse should be treated as a secondary diagnosis. Tr. p. 17. Brown also testified that he would "have serious concerns with any child being in the custody of a not treated chemically dependent person." Tr. p. 19.
With regard to Father, Brown testified that Father failed to appear for at least two scheduled assessments: one in July 1999, the other in November 2000. Father himself arranged the July 1999 appointment, but the November 2000 assessment was on reference from MCOFC. Tr. p. 20.
The MCOFC recommended that Mother's and Father's parental rights with regard to D.C. be terminated because they failed to complete services that would prepare them to be parents to D.C. Reach testified that both Mother and Father had expressed the desire to care for D.C., but neither demonstrated their cooperation with treatment or their ability to care for D.C. Mother and Father were first given referrals for evaluations and treatment services in August 1998, but two and onehalf years later, in January 2001, Reach testified that she believed it would be harmful to D.C. to be returned to her parents based upon Mother and Father's instability, inconsistent visitations, and continued chemical addictions. Tr. p. 152. At the termination hearing, the MCOFC's plan for D.C. was adoption, and Reach testified that pre-adoptive homes had already been identified.
Mother and Father both testified at the termination hearing. Father testified that he stayed with different people throughout the week and that he did not have a residence of his own, nor had he ever rented an apartment for a year or longer or owned a home. Father explained that the reason he had difficulty completing the required services was due to transportation problems and periodic incarceration. Tr. p. 69. And, even though he testified that he was doing landscape work and work through a temporary service, he also testified that he would be entering an inpatient treatment program for his alcoholism the week...
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Baker v. Marion County Office of Family & Children
...basis as in criminal proceedings and that the joint representation did not pose a conflict of interest. Baker v. Office of Family and Children, 768 N.E.2d 1008 (Ind.Ct.App.2002). We granted transfer. Ind. Appellate Rule 58. Assistance of Counsel in Termination Proceeding. As the Supreme Cou......