Bester v. Lake County Office of Family
| Decision Date | 20 December 2005 |
| Docket Number | No. 45S03-0509-JV-435.,45S03-0509-JV-435. |
| Citation | 839 N.E.2d 143 |
| Parties | Robert BESTER, Appellant (Petitioner below), v. LAKE COUNTY OFFICE OF FAMILY AND CHILDREN, Appellee (Respondent below). |
| Court | Indiana Supreme Court |
James J. Krajewski, Munster, for Appellant.
Eugene M. Velazco, Jr., Merrillville, for Appellee.
The trial court terminated Robert Bester's parental rights on the ground that the parent-child relationship posed a threat to the well being of the child. The Court of Appeals affirmed. Concluding that the evidence does not clearly and convincingly demonstrate that Bester's parental rights should be terminated, we reverse the judgment of the trial court.
On June 16, 2001, a son (referred to as "Child") was born out of wedlock to Lavita Israel (Mother) and Robert Bester (Father). Father was present at St. Catherine's Hospital at the time of Child's birth. Because Child tested positive for cocaine, Hospital authorities notified the Lake County Office of Family and Children Services ("OFC"), which assumed jurisdiction over Child. See Ind.Code § 31-34-2-3. Five days later OFC gave Hospital the authority to release Child to the temporary custody of foster parents. See Ind.Code § 31-34-4-4. Thereafter OFC filed a petition seeking that Child be declared a Child in Need of Services ("CHINS"). See Ind.Code § 31-34-9-1. On October 12, 2001, after a hearing at which Father appeared and Mother did not, the trial court entered an order granting the CHINS petition. The order included a case plan for reunification that provided in relevant part:
Mother and alleged father to submit to psychological evaluations and follow through with recommended treatment. Mother and alleged father to submit to random drug screens. Mother and alleged father to successfully complete parenting classes. Mother and alleged father to visit with the child regularly. Mother to submit to a substance abuse evaluation and follow through with recommended treatment. Alleged father to become adjudicated.1
Appellant's App. at 89. Child remained in the custody of foster parents.
The record shows that even before the entry of the case plan Father was regularly visiting with Child. Pursuant to the plan the initial visits were supervised. However those visits were so successful that sometime in 2002 OFC permitted Father to exercise unsupervised weekend visits. Father was living with his own parents in East Hazel Crest, Illinois. Consequently, Child spent every weekend with his father, grandparents, and other relatives. A later home study described the living arrangements in part as follows:
The house is situated in a private wooded area that consists of other single-family homes in good upkeep. Mr. Bester's parents have resided in the home for the past eight years.
...
The Bester home was observed to be clean, spacious and adequately furnished. The home is equipped with working smoke and carbon monoxide detectors. There were no hazards observed that would prevent the placement of [Child] into the home. The home is located in a private neighborhood and is near parks, schools and shopping.
Appellant's App. at 26-27. In addition to visiting with Child regularly, Father also complied with other requirements of the case plan, including submitting to psychological evaluations, random drug screens, and successfully completing parenting classes.
In October 2002, the OFC initiated a referral through the Interstate Compact on the Placement of Children requesting the State of Illinois to "study the home of Robert Bester [] for the possible placement of 1-year-old [Child]." Appellant's App. at 24.2 The Illinois investigator assigned to the case completed a home study that "d[id] not approve the placement of [Child] with his father." Appellant's App. at 35. The study cited Father's history of arrests and convictions between 1994 and 2000, some of which involved controlled substances. The home study concluded that Father needed to distance himself further from his past behavior before the State of Illinois could allow Child to live with him there.
For reasons not apparent from this record, before the home study was complete the OFC filed a petition to terminate the parental rights of both Mother and Father.3 After a hearing conducted on August 18, 2004, at which Father appeared and Mother did not, the trial court entered an order granting the petition. The order provided in pertinent part:
The child(ren) has been removed from his parent(s) for least [sic] six (6) months under a dispositional decree(s) of this Court dated October 12, 2001 to both parents retroactive to June 21, 2001 ....
The child(ren) has been removed from the parent and has been under the supervision of the LCOFC for at least fifteen (15) of the most recent twenty-two (22) months.
There is a reasonable probability that the conditions resulting in the removal of the child from his parents' home will not be remedied in that: Lavita Israel, [sic] is mother of herein named child. Child was born testing positive for cocaine. Mother has two other children none of whom are living with her. Mother admits using cocaine to relieve stress from her pregnancy and her relationship with the child's father. Child was placed in foster care. Child has failed to bond with mother. Mother has since gotten pregnant again.
Robert Bester [ ] is the father of [Child] as determined by DNA testing. Mr. Bester has made efforts to comply with the case plan for reunification. Ms. Israel has made little to no effort to comply with the child's case plan.
Neither parent is providing financial or emotional support for the child. Mother has had little contact with the child. Father has had regular contact with the child. Child has been in placement for over one year.
There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child in that: Child needs a stable loving, caring, nu[r]turing, and drug free and safe adoptive home. Child has been in placement since birth. Mother has made little to no effort in cooperating with the agency and case plan. Father has made some effort but has yet to establish himself as independent or to obtain his own residence. Father is employed and trying to obtain his GED. Father has extensive criminal convictions for drugs and cannot obtain approval from the State of Illinois to allow child to be placed with him.
It is in the best interest of the child and his health, welfare and future that the parent-child relationship between the child and his parents be forever fully and absolutely terminated.
Appellant's App. at 12-13. Father appealed, and in a memorandum decision the Court of Appeals affirmed. See Robert Bester v. Lake County Office of Family and Children, No. 45A03-0410-JV-454, 826 N.E.2d 165 (Ind.Ct.App. April 13, 2005). Having previously granted transfer, we now reverse the judgment of the trial court.4
The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children. Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). A parent's interest in the care, custody, and control of his or her children is "perhaps the oldest of the fundamental liberty interests." Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Indeed the parent-child relationship is "one of the most valued relationships in our culture." Neal v. DeKalb County Div. of Family & Children, 796 N.E.2d 280, 285 (Ind.2003) (quoting Tillotson v. Clay County Dep't of Family & Children, 777 N.E.2d 741, 745 (Ind.Ct.App.2002)). We recognize of course that parental interests are not absolute and must be subordinated to the child's interests in determining the proper disposition of a petition to terminate parental rights. In re D.D., 804 N.E.2d 258, 265 (Ind.Ct.App.2004). Thus, "[p]arental rights may be terminated when the parents are unable or unwilling to meet their parental responsibilities." Id.
When reviewing the termination of parental rights, we do not reweigh the evidence or judge witness credibility. Doe v. Daviess County Div. of Children & Family Servs., 669 N.E.2d 192, 194 (Ind.Ct.App.1996). We consider only the evidence and reasonable inferences that are most favorable to the judgment. Id. Here, the trial court entered findings of fact and conclusions thereon in granting the OFC's petition to terminate Father's parental rights. When reviewing findings of fact and conclusions of law entered in a case involving a termination of parental rights, we apply a two-tiered standard of review. First, we determine whether the evidence supports the findings, and second we determine whether the findings support the judgment. Page v. Greene County Dep't of Pub. Welfare, 564 N.E.2d 956, 959 (Ind.Ct.App.1991). We will set aside the trial court's judgment only if it is clearly erroneous. In re Wardship of B.C., 441 N.E.2d 208, 211 (Ind.1982). A judgment is "clearly erroneous if the findings do not support the trial court's conclusions or the conclusions do not support the judgment." In re the Matter of R.J., 829 N.E.2d 1032, 1035 (Ind.Ct.App.2005).
Indiana Code § 31-35-2-4(b)(2) requires that a petition to terminate a parent-child relationship involving a child in need of services must allege that:
(A) one (1) of the following exists:
(i) The child has been removed from the parent for at least six (6) months under a dispositional decree (ii) A court has entered a finding ... that reasonable efforts for family preservation or reunification are not required, including a description of the court's finding, the date of the finding, and the manner in which the finding was made; or
(iii) after July 1, 1999, the child has been removed from the parent and has been under the...
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