In Matter of T.J.F., No. 02A05-0212-CV-616 (Ind. App. 11/13/2003)
| Decision Date | 13 November 2003 |
| Docket Number | No. 02A05-0212-CV-616.,02A05-0212-CV-616. |
| Parties | IN THE MATTER OF THE ADOPTION OF T.J.F. MICHAEL D. HINRICHS and JULIE C. HINRICHS, Appellants-Petitioners, v. THE OFFICE OF FAMILY AND CHILDREN OF ALLEN COUNTY, A DIVISION OF THE ALLEN COUNTY DEPARTMENT OF PUBLIC WELFARE, Appellee-Respondent. |
| Court | Indiana Appellate Court |
THOMAS C. ALLEN,
Fort Wayne, Indiana, ATTORNEY FOR APPELLANTS.
SUZAN M. RUTZ,
Burt, Blee, Dixon, and Sutton Fort Wayne, Indiana, ATTORNEY FOR APPELLANTS.
DUSTIN M. ROACH,
Fort Wayne, Indiana, ATTORNEY FOR APPELLEE.
OPINION - FOR PUBLICATION
Appellants-Petitioners, Michael D. Hinrichs and Julie C. Hinrichs (collectively, "the Hinrichs"), appeal the trial court's order approving the Guardian Ad Litem (GAL) and the Office of Family and Children of Allen County, a Division of the Allen County Department of Public Welfare's (OFC) Motion to Permit Biological Sibling Visitation.
We reverse and remand.
The Hinrichs raise two issues on appeal, which we restate as follows:
(1) Whether the trial court erred in denying the Hinrichs' Motion to Dismiss the GAL and OFC's Motion to Permit Biological Sibling Visitation; and
(2) Whether the trial court erred in not terminating the post-adoption visitation order between T. H. and her biological sister, L.W.
On April 1, 1997, the Hinrichs filed a Petition for Adoption of T.F.1 On June 27, 1997, the trial court ordered visitation to be established between T.F. and her biological sister, L.W. However, the visitations did not take place. T.F. was two years old at the time of the trial court's order and L.W. was "struggling." (Brief p. 6). Catholic Charities, had wardship over L.W., and they did not follow through with the trial court's order for visitation between T.F. and her sister L.W.
On September 2, 1997, a Post-Adoption Visitation Agreement was filed in the same cause prior to the entry of the Decree of Adoption. The Post-Adoption Visitation Agreement allowed for visitation between T.F. and her biological sister, L.W. Additionally, the Post-Adoption Visitation Agreement placed the responsibility on the Hinrichs to schedule the visitations.
On December 19, 1997, the trial court entered a Decree of Adoption between the Hinrichs and T.F., now T.H. The Decree of Adoption does not mention the relationship between T.H. and L.W., who was not adopted by the Hinrichs. Additionally, the Decree of Adoption does not include an Order approving the post-adoption visitation agreement.
On August 12, 1998, an Amended Post-Adoption Visitation Agreement was filed in the same captioned cause. The Chronological Case Summary (CCS) does not reflect that the trial court entered an order approving the Amended Post-Adoption Visitation Agreement. In 2001, Catholic Charities contacted the Hinrichs to begin visitation between T.H. and L.W.; however, the Hinrichs declined their request. On April 18, 2002, the OFC, and the Guardian Ad Litem filed a Motion to Permit Biological Sibling Visitation. On May 2, 2002, the Hinrichs filed a Motion to Dismiss the Guardian ad Litem and Office of Family & Children's Motion to permit Biological Sibling Visitation. On June 18, 2002, the trial court denied the Hinrichs' motion.
Thereafter, on July 3, 2002, the Hinrichs filed a Motion to Modify and/or Terminate Sibling Visitation. On July 23, 2002, a hearing was held on the GAL and OFC's Motion to Permit Biological Sibling Visitation and the Hinrichs' Motion to Modify and/or Terminate Sibling Visitation. At the hearing, the Hinrichs made an oral motion to Dismiss the GAL and OFC's Motion to Permit Biological Visitation. After receiving and hearing evidence, the trial court denied the Hinrichs' oral motion to Dismiss the GAL and OFC's Motion to Permit Biological Sibling Visitation.
On November 25, 2002, the trial court issued the following Findings of Fact and Conclusions of Law, which state, in pertinent part:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Trial was held in the above cause on July 23, 2002. The parents were present and represented by attorney Thomas Allen. The [GAL], Susan Rutz, was present. The Office of Family and Children was present by attorney Dustin Roach, who represented the interest of the child, [L.W.]. Catholic Charities was also present.
All parties rested. Proposed Findings of Fact was filed by August 30, 2002. The Court then took the matter under advisement and now enters its Findings, Conclusions, and Order of Modification.
1. [L.W.] and [T.H.], are biological sisters.
2. [T.H.] was adopted by [the Hinrichs] on December 19, 1997.
3. [T.H.] is now seven (7) years old; [L.W.] is now thirteen (13) years old.
4. Filed in the same cause prior to the granting of the Decree of Adoption was a Post[-][A]doption Visitation Agreement which allowed for visitation between [T.H.] and her biological sister, [L.W.].
5. Julie C. Hinrichs, adopted mother of [T.H.], admitted that she signed the Post[-][A]doption Visitation Agreement.
6. An Agreed Entry amending post[-]adoption visitation was filed in the same-captioned cause on or about August 11, 1998.
7. No visits pursuant to the Post[-][A]doption Visitation Agreement have taken place since 1997.
8. Julie Hinrichs admitted that paragraph 10B of the Post[-][A]doption Visitation Agreement placed the responsibility on her to arrange the visits.
9. That the original post[-]adoption visitation was not initiated at the suggestion of Catholic Charities due to behavior problems [L.W.] was having.
10. The Allen Superior Court retained jurisdiction over [L.W.] with the Allen County Office of Family and Children having wardship over said child.
11. In [L.W.'s] Child in Need of Services case, the [GAL] for [L.W.], Susan Rutz, continued to act in her capacity as [GAL].
12. That Susan Rutz, as the [GAL], was unaware that visitation had not been implemented between [L.W.] and [T.H.] since the time of the adoption on December 19, 1997.
13. That the Hinrichs did not refuse or interfere with the post[-]adoption agreement visitation until a request was made in September, 2001.
14. On or about April 18, 2002, the Office of Family and Children filed a Motion to Permit Biological Sibling [Visitation] and on July 3, 2002, the Hinrichs, adoptive parents of [T.H.], filed a Motion to Modify and/or Terminate Siblings Visitation.
15. That Patricia L. Bader [Dr. Bader] is an expert in pediatrics and cytogenics and licensed to practice medicine in the State of Indiana.
16. That Dr. Bader is the doctor supervising the ongoing case of [T.H.] and that [T.H] has been diagnosed [as] suffering from Fetal Alcohol Syndrome.
17. That the Fetal Alcohol Syndrome (hereinafter FAS) has caused her to have delays in psychological development and maturation which includes developmental delays in social interaction and academic developments.
18. That FAS children generally have difficulty sorting out realistic perceptions and social/relational situations and often misinterpret their environment. They require routine and consistency which are crucial to healthy developmental process.
19. Barbara Gelder, PHD, [Dr. Gelder] and [Dr. Bader], testified that FAS children require stability and predictability in their lives.
20. Dr. Bader's particular phraseology regarding [T.H.'s] needs was that she must avoid "disturbances[.]"
21. Dr. Gelder's particular phraseology was that a FAS child is in need of "ongoing and predictable procedures."
22. Dr. Gelder testified that FAS children do not transition well but acknowledged that it was the fact of transition, not the stimulus, that creates the possibility of detrimental consequences to an FAS child.
23. Dr. Gelder testified that FAS children respond better to "prepared transitions" as opposed to "immediate transitions[.]"
24. Dr. Gelder testified that FAS children are capable of creating new relationships.
25. Dr. Gelder and Dr. Bader acknowledged that a lack of stability could arise out of any relationship in which [T.H.] is involved.
26. Dr. Bader testified that there is no predictability as to how an FAS child will respond to a new situation and that it must be dealt with on a basis.
27. Dr. Bader recommended that it is not in [T.H.'s] best interest to have visits with her sister, [L.W.], in that the visitations would create a serious potential for psychological damage to [T.H.].
28. Dr. Bader also testified that visits with [L.W.] would be harmful to the trusting bonds that she has formed with her current family.
29. Neither Dr. Bader nor Dr. Gelder have seen [L.W.] for diagnostic or therapeutic consultation.
30. Neither Dr. Bader nor Dr. Gelder advised [T.H.] that she had a biological sister.
31. [T.H.] is aware that she has a biological sister that exists but has not shown any interest in meeting [L.W.].
32. That the mother, Julie Hinrichs, testified that it is not in the best interest of [T.H.] to have visits with her sister due to the uncertainty that the developing relationship would have on [T.H.].
33. Julie Hinrichs testified that five (5) other children live in her household, several of whom are adopted and have biological siblings with whom they do not visit.
34. Julie Hinrichs testified that [T.H.] has good relationships with her current adoptive sisters.
35. Julie Hinrichs testified that [T.H.] had a normal childhood and has been involved in school, church, and other extracurricular activities.
36. During these activities [T.H.] has met new children and formed relationships with new children.
37. [The Hinrichs] had training in the behavioral needs of FAS children and Julie Hinrichs testified that five other children live in her household and several of them suffer from FAS.
38. The mother, Julie Hinrichs, testified that if the visits failed to take place in an appropriate...
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