Bender's Wardship, In re

• Decision Date: 17 August 1976
• Docket Number: No. 3--1274A212,3--1274A212
• Parties: In re the WARDSHIP OF Milton Louis BENDER et al. Nelma GARD, Appellant (Respondent below), v. ALLEN COUNTY DEPARTMENT OF PUBLIC WELFARE, Appellee (Petitioner below).
• Court: Indiana Appellate Court

Page 797

352 N.E.2d 797

170 Ind.App. 274

In re the WARDSHIP OF Milton Louis BENDER et al.

Nelma GARD, Appellant (Respondent below), v. ALLEN COUNTY DEPARTMENT OF PUBLIC WELFARE, Appellee

(Petitioner below).

No. 3--1274A212.

Court of Appeals of Indiana, Third District.

Aug. 17, 1976.

Hugo E. Martz, Valparaiso, William L. Briggs, Legal Services Program, Fort Wayne, for appellant.

Philip H. Larmore, Fort Wayne, for appellee.

STATON, Presiding Judge.

The Allen County Department of Public Welfare petitioned to have the Gard children 'found to be dependent and neglected children and be made wards of the County Department of Public Welfare for all purposes including adoption.' The Allen Superior Court, Juvenile Division found the Gard children to be dependent and neglected and terminated Gard's parental rights to her four children. Gard appeals this termination of her parental rights which raises these issues:

Issue One: Did the trial court err in admitting evidence obtained in violation of Gard's Fourth Amendment rights?

Issue Two: Was Gard denied due process for lack of notice that the proceeding was one to terminate parental rights?

Issue Three: Is there sufficient evidence to support the trial court's judgment terminating Gard's parental rights? ¹

We affirm.

I. Illegal Search

Agents of the Welfare Department visited Gard's residence on four separate occasions and at the termination proceeding, these agents testified as to existing conditions in the Gard residence. On two of these visits, Welfare Department agents took pictures which were admitted into evidence. On appeal, Gard contends that these visits constituted illegal searches in violation of the Fourth Amendment and that any evidence obtained during these visits should have been excluded by the trial court.

One of the visits occurred on January 4, 1974. After Gard's marriage to Arnold Gard, she resided in a mobile home near Roanoke, Indiana. She had been working with Marilyn Killen, a caseworker for the Huntington County Department of Public Welfare. On January 4, 1974, Killen visited the mobile home, and at the termination proceedings she testified regarding the condition of the interior of the trailer. There was no objection to her testimony. Failure to object to Killen's testimony at trial waives any allegation of erroneous admission of evidence on appeal, Harrison v. State (1972), 258 Ind. 359, 281 N.E.2d 98; Thomas v. State (1975), Ind.App., 330 N.E.2d 325, and we will not consider this issue under the fundamental error doctrine. See Winston v. State (1975), Ind.App., 332 N.E.2d 229.

Gard has properly preserved her allegations of error concerning the remaining three visits by welfare department agents. Assuming arguendo that the other three visits by welfare department agents violated Gard's Fourth Amendment rights and that evidence obtained in violation of those rights should have been excluded at the termination proceedings, we find any error in the admission of this evidence to be harmless.

Because the trial court may have considered this evidence, we must consider whether this possible Federal constitutional error would be harmless beyond a reasonble doubt. Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; Greer v. State (1969), 252 Ind. 20, 245 N.E.2d 158; Moreno v. State (1975), Ind.App., 336 N.E.2d 675; Larimer v. State (1975), Ind.App., 326 N.E.2d 277. As explained in Moreno v. State,supra, 336 N.E.2d at 681, in determining whether the federal constitutional error was harmless beyond a reasonable doubt, we must consider both the probative impact of the illegally obtained evidence upon the trial court and the amount and probative value of the other evidence in the record supporting the trial court's decision.

The first of these allegedly illegal searches occurred on May 11, 1972, when Lieutenant Mitchael Holly of the Allen County Board of Public Health visited Gard's apartment and took numerous pictures of the interior of the apartment. Before the admission of these photographs, Holly testified without an objection on illegal search grounds to the conditions depicted by the photographs. Even if the photographs taken by Lieutenant Holly were erroneously admitted into evidence, they were merely cumulative of other evidence admitted without proper objection. See Jenkins v. State (1975), Ind., 335 N.E.2d 215; Boles v. State (1973), 259 Ind. 661, 291 N.E.2d 357.

The second visit occurred on June 22, 1972, when Frances Milan, Gard's caseworker from June 1972, to October 1972, visited Gard's apartment at Westfield Village. This visit took place after the Gard children had been made temporary wards of the Allen County Department of Public Welfare and had been removed from the home. Milan testified at the termination proceedings regarding the condition of the Gard apartment at the time of the visit.

The third visit occurred on January 17, 1974, when four welfare department agents visited the Gard trailer. Two of the Gard children were living in the home at this time. Two of the welfare agents testified over timely objection regarding the condition of the trailer. Pictures taken during the visit were admitted over timely objection.

The testimony and pictures alleged by Gard to have been obtained in violation of her Fourth Amendment rights were merely cumulative evidence of Gard's liability to keep her home in a condition suitable for maintaining the health and welfare of her children. Under Issue Three concerning the sufficiency of the evidence to support the trial court's judgment, we have set out in detail the other evidence presented at the termination hearing concerning the conditions existing in the Gard home. Considering all the other evidence concerning the conditions in the Gard home from February 11, 1972, to January 17, 1974, we conclude that the impact of the illegally obtained evidence was probably minimal, and the other evidence presented at the termination proceeding was clearly sufficient to sustain the trial court's judgment terminating Gard's parental rights. The admission of this allegedly illegally obtained evidence would have been harmless error beyond a reasonable doubt.

II. Notice

On January 25, 1974, the Allen County Department of Public Welfare petitioned the trial court to have the Gard children 'found to be dependent and neglected children and be made wards of the County Department of Public Welfare for all purposes including adoption.' Gard was served with summons informing her that the hearing on the above petition was a hearing concerning the removal of her children from her care, custody, and control 'for all purposes including adoption.' Gard's contention that this was constitutionally insufficient notice of a termination proceeding in violation of due process is without merit. In Perkins v. Allen County Dept. of Public Welfare (1976), Ind.App., 352 N.E.2d 502, the Allen County Department of Public Welfare also sought to make certain children 'wards of the County Department of Public Welfare for all purposes including adoption.' In Perkins, supra, this Court specifically rejected the Perkins' argument that such notice was constitutionally inadequate and held that the language here at issue was sufficiently explicit to notify a parent that the proceeding was one to terminate parental rights. The holding in Perkins, supra, is dispositive of the notice issue presented by this appeal.

III. Sufficiency of the Evidence

In considering the sufficiency of the evidence to support the trial court's judgment terminating Gard's parental rights, we may not weigh the evidence nor judge the credibility of the witnesses. Also, as pointed out under Issue One, we will not consider the evidence allegedly illegally obtained by welfare department agents.

The evidence most favorable to the Allen County Department of Public Welfare establishes the following:

On February 11, 1972, Officer Holly of the Allen County Board of Public Health visited Gard's home and described the conditions that he observed as follows:

'I was there on February 11th, 1972, . . . The place was full of roaches. All the rooms were full of old clothing, old rags, human waste, soiled clothing, garbage, trash, debris lying all around. There was a huge pile of garbage in the kitchen. At the time, I asked Mrs. McAfee (Mrs. Gard) where the children slept, and she stated that they slept on the floor in the house. What prompted me to ask her where they slept was that one of the bunk beds was completely packed full of clothing from the bunk bed clear to the ceiling, you know, just completely packed full of old clothing. There was a terrible stench in the apartment at the time, and it was extremely hot. There was a stench of garbage, waste, human waste, this sort of thing. . . .'

Officer Holly also visited the Gard home on May 11, 1972, and observed similar conditions.

In May 1972, Gard asked her current caseworker, Mr. Ainsley, if her children could be placed in foster homes and the children were removed from her home and made temporary wards of the Allen County Department of Public Welfare. From June 1972, to October 1972, Frances Milan of the Allen County Department of Public Welfare was Gard's caseworker. Milan had several conferences with Gard during June 1972, and Gard indicated that she had some problems with drinking alcoholic beverages. During June 1972, Milan arranged a visitation between Gard and her children at Gard's request, but no further visitations were requested by Gard between June and October 1972.

From October 1972, to October 1973, Rebecca Thompson of the Allen County Department of Public Welfare worked with Gard. Thompson obtained permission from Gard to make weekly home visits between January 1973, and September 1973. During these home visits, Thompson and Gard discussed Gard's drinking problem and Thompson worked with Gard on housekeeping and basic nutrition. Thompson testified that when she began the...