In re R.J.

• Decision Date: 28 June 2005
• Docket Number: No. 45A05-0411-JV-614.,45A05-0411-JV-614.
• Parties: In re the Matter of R. J., a Minor Child, Roderick Johnson, Appellant-Respondent, v. Lake County Office of Family and Children, Appellee-Petitioner.
• Court: Indiana Supreme Court

Page 1032

829 N.E.2d 1032

In re the Matter of R. J., a Minor Child,

Roderick Johnson, Appellant-Respondent, v. Lake County Office of Family and Children, Appellee-Petitioner.

No. 45A05-0411-JV-614.

Court of Appeals of Indiana.

June 28, 2005.

James J. Krajewski, Munster, for Appellant.

Yolanda Holden, Robert L. Lewis & Assoc., Gary, for Appellee, Lake County Office of Family and Children.

Elizabeth G. Tegarden, Crown Point, for Appellee, Lake County CASA Program.

OPINION

BARNES, Judge.

Case Summary

Roderick Johnson appeals the termination of his parental rights. We reverse.

Issue

Johnson raises two issues. However, we address only one dispositive issue, which we restate as whether there is clear and convincing evidence to support the termination of his parental rights.

Facts

In June 2000, the Lake County Office of Family and Children ("OFC") filed a petition alleging that three-year-old R.J. was a child in need of services. At that time, R.J. was removed from her mother's custody and placed into foster care. R.J.'s father, Johnson, was located, and he established paternity of R.J.

Case plans were established for both parents. R.J.'s mother did not comply with the plan. Johnson completed the services required of him. He attended parenting classes and psychological evaluations and maintained regular visitation with R.J. Although Johnson's first drug screen was positive for marijuana, he completed substance abuse counseling and all subsequent drugs screens were negative. Johnson also rented an apartment and obtained a full time job at the homeless shelter at which he had resided when these proceedings began.

After placement in two foster homes, R.J. was finally placed in the Gould home in August 2002, where she remains. The Goulds have offered to adopt R.J.

On July 3, 2003, the OFC filed a petition to termination R.J.'s parents' parental rights. Following a hearing, the trial court granted the OFC's petition and issued an order that provides in part:

The allegations of the petition are true:

The child(ren) has been removed from the parent and has been under the supervision of the [OFC] 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 her parents' home will not be remedied in that:

* * * * *

Father was offered services but failed to accept them.

* * * * *

Father has substance abuse issues.

Father has also tested positive for marijuana.

Father has shown some erratic behavior including being homicidal, threatening to burn down the visitation site, and threatening to shoot the drug screener.

Neither parent has successfully completed the case plan program.

Neither parent is providing any financial support for the child.

Neither parent is likely to regain custody of their child.

Child has not lived alone with father.

* * * * *

Child has been in foster care since 6/30/00.

Child has lived in current foster home for two years.

Father has failed to provide safe and adequate housing for himself and his young daughter. Father has failed to have a safe plan of care for his young daughter while he is at work. Father has mental health issues that are ongoing and that he has failed to effectively address.

The child has bonded with foster parents and does not want to be removed from them. Child does not want to live with father, which she has never lived with alone. Child has been in foster care over half her life.

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: For the same reasons stated above.

It is in the best of the interest of the child and her health, welfare and future that the parent-child relationship between the child and her parents be forever fully and absolutely terminated.

The [OFC] has a satisfactory plan for the care and treatment of the child which is Placement in a permanent adoptive home environment and supervision in placement pending granting of adoption.

Appellant's App. pp. 10-11. Johnson now appeals.¹

Analysis

The Fourteenth Amendment to the United States Constitution protects the rights of parents to establish a home and raise their children. In re D.D., 804 N.E.2d 258, 264 (Ind.Ct.App.2004), trans. denied. Parental interests are not absolute, however, and must be subordinated to the child's interests in determining the proper disposition of a petition to terminate parental rights. Id. at 264-65. "Parental rights may be terminated when the parents are unable or unwilling to meet their parental responsibilities." Id. at 265. "The purpose of terminating parental rights is not to punish parents but to protect children." Id.

When reviewing the termination of parental rights, we do not reweigh the evidence or judge the credibility of the witnesses. Id. We consider only the evidence and reasonable inferences that are most favorable to the judgment. Id. Where the trial court enters findings of fact, we determine whether the evidence supports the findings and then whether the findings support the judgment. Id. The trial court's findings and judgment will be set aside only if they are clearly erroneous. Id. A finding is clearly erroneous if there are no facts or inferences drawn therefrom that support it. Id. A judgment is clearly erroneous if the findings do not support the trial court's conclusions or the conclusions do not support the judgment. Id.

Indiana Code Section 31-35-2-4(b)(2) requires that a petition to terminate a parent-child relationship involving a child in need of services 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 supervision of a county office of family and children for at least fifteen (15) months of the most recent twenty-two (22) months;

(B) there is a reasonable probability that:

(i) the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied; or

(ii) the continuation of the parent-child relationship poses a threat to the well-being of the child;

(C) termination is in the best interests of the child; and

(D) there is a satisfactory plan for the care and treatment of the child.

The OFC must establish these allegations by clear and convincing evidence. D.D., 804 N.E.2d at 265.

The parties appear to agree that the only issue is whether the OFC presented clear and convincing evidence that the conditions resulting in R.J.'s placement outside the home will not be remedied or that the continuation of the parent-child relationship poses a threat to R.J.'s well-being. Johnson argues that several of the trial court's findings are not supported by the evidence.

Johnson suggests there is no evidence to support the trial court's findings that he was offered services but failed to accept them and that he "has substance abuse issues." Appellant's App. p. 11. We agree. By all accounts, Johnson completed all of the services offered to him, including substance abuse counseling, and except for the initial drug screen, none of the random drug screens were positive. These findings are not supported by the evidence.

Johnson also asserts that there is no evidence to support the trial court's finding that neither parent is providing support for R.J. As Johnson points out, there was no court order or other requirement that he provide such support. In fact, the evidence indicates that Johnson often gave R.J. gifts of clothing and toys during his visits with her. To the extent that this finding implies that Johnson was in some way legally required to provide support for R.J., it is unsupported by the evidence or, at best, misleading.

Johnson contends that the trial court's finding that he engaged in erratic "homicidal" behavior and threatened to burn down a visitation site and shoot the drug screener is unsupported by the evidence. App. p. 11. We agree. Although this finding contains a very specific account of an incident, there is no evidence that Johnson engaged in any such behavior or that such an incident ever occurred. In fact, CASA concedes, "To the extent that the evidence does not support the specific behaviors enumerated by the court, CASA contends the enumerated behaviors are superfluous to the finding if not the judgment and any error is harmless." Appellee CASA's Br. p. 21. We do not agree that a finding containing such a detailed recitation of threatening behavior is harmless. There is zero evidence in the record that such an event occurred. Thus it is unsupported.

Johnson also argues that there is no evidence to support the trial court's finding that he has ongoing mental health issues and has failed to effectively address the issues. The caseworker initially involved in the case testified that when the proceedings began and Johnson was trying to establish paternity he was asked his address and social security number. In response to these questions, Johnson became, "very argumentative, somewhat confrontational, teetering on paranoid." Tr. p. 15. The caseworker later testified that she did not have training to say that her description of "paranoid" was a medical condition and that it was just her opinion. When asked if Johnson followed through with the ongoing counseling and a psychological evaluation, the caseworker said she was not sure because she was transferred from the case. There is no indication that Johnson failed to complete any of the OFC's required services.

In fact, the confidential psychological evaluation...