In re Termination of the Parent-Child Relation.

• Citation: 883 N.E.2d 830
• Decision Date: 02 April 2008
• Docket Number: No. 02A03-0707-JV-306.,02A03-0707-JV-306.
• Parties: In re The Matter of the TERMINATION OF the PARENT-CHILD RELATIONSHIP OF S.F. and J.F. Michael Farley, Appellant, v. Allen County Child Services, Appellee.
• Court: Court of Appeals of Indiana

883 N.E.2d 830

In re The Matter of the TERMINATION OF the PARENT-CHILD RELATIONSHIP OF S.F. and J.F Michael Farley, Appellant, v. Allen County Child Services, Appellee.

No. 02A03-0707-JV-306.

Court of Appeals of Indiana.

April 2, 2008.

Thomas C. Allen, Fort Wayne, IN, Attorney for Appellant.

Robert J. Henke, Indiana Department of Child Services, Fort Wayne, IN, Attorney for Appellee.

OPINION

BARNES, Judge.

Case Summary

Michael Farley appeals the termination of his parental rights to his children, J.F. and S.F. We reverse and remand.

Issue

Farley raises three issues. We address the dispositive issue, which we restate as whether Farley was denied due process when the trial court conducted an independent investigation and did not allow Farley an opportunity to respond.

Facts

In 2005, J.F. and S.F. were found to be children in need of services ("CHINS") based on J.F. having scabies and lice and concerns regarding the children's living conditions. On July 18, 2006, the Allen County Department of Child Services ("DCS") filed a petition to terminate Farley's parental rights because Farley had allegedly failed to maintain suitable living conditions.

On December 11, 2006, and December 19, 2006,¹ a trial was held on the petition to terminate Farley's parental rights. On February 8, 2007, the trial court issued the following order:

The Court, upon review of the record and evidence presented at trial, finds that additional investigation is required. The Court now orders that the Department of Child Services request an investigation of the parents' home by the Health Department and that the Health Department file a report of its findings with the Court by no later than February 23, 2007.

App. p. 188. Apparently, the Allen County Health Department ("Health Department") performed such an inspection and submitted a report to the trial court.

On April 9, 2007, the trial court terminated Farley's parental rights to J.F. and S.F. The termination order read in part:²

9. From the date of removal, September 28, 2005, until the date of the Termination of Parental Rights Trial the conditions remained to be:

i. The home was dirty to such an extent that it was unsanitary.

ii. There were areas in the home with missing drywall exposing insulation.

iii. There was a strong odor (later to be determined to be a combination of dog urine, dog feces and sewage from a broken sewer pipe in the wall[) ].

iv. The kitchen was filthy.

v. The bathroom was filthy.

* * * * * *

12. The father has a prior history of involvement with the Department of Child Services in Adams County and in Allen County.

13. The father's ability to recognize and correct potential danger to the child is exhibited by response to the existence of broken fence boards in the rear yard that had nails exposed.

14. The potential dangerous hazard was not removed when called to the attention of the parent but merely turned over.

15. There existed a hole in the ground adjacent to the front porch steps sufficiently large enough to pose a danger to a child playing in the yard.

16. The father failed to fill the hole but covered it with a sheet of glass, not correcting the danger but increasing it.

17. Services were offered to the father by the [DCS]. The father has failed to benefit from the services provided. The Court finds that the causes of removal will not be remedied.

18. Termination of parental rights is in the best interests of the child, [J.F.], in that the mother and the father have shown over the course of the related CHINS cause, and in the fact of a treatment plan or plans, and numerous specific services made available and/or provided, that said parents continue to be unable, refuse, or neglect to provide of the basic necessities of a suitable home for the raising of said child.

19. The [DCS] has a satisfactory plan for the care and treatment of the child, which is placement of the child for adoption.

ADDENDUM:

Because of the time delay between the trial and the Court's opportunity to review the record, the Court ordered an inspection of the home by the Allen County Department of Health. The report of the Department of Health reaffirmed the Court's finding that the home is in unsanitary conditions. The inspection report contains the following statements:

"The enclosed porch of this house contained a mattress, box springs, rolled carpeting, lamp, reclining chairs and several other articles pile on the porch floor or in disarray . . . An overall inspection of the home revealed excessive clutter and general poor housekeeping. I saw a recently deposited dog stool on the living room carpet. This carpet was heavily stained but showed little wear . . . The Kitchen sink was over filled with dirty dishes and the kitchen appliances and furnishings were in need of cleaning. The hallway landing displayed a cracked window pane and the hall ceiling had a large area of exposed lath board . . . The bathroom sink was filthy and bedding was in the tub. The electrical receptacle above the tub had no cover plate nor did the receptacle have a ground fault interrupter for which to prevent shock or electrocution . . . The downstairs smoke detector had no working battery nor was it mounted . . . A bottom basement stair was broken and there were two golf ball sized holes in the foundation walls. A light fixture was hanging from the mounting base and the wiring was exposed . . . This family has three dogs. In summary, the home was dirty from ceiling to floor and so cluttered as to impede normal movement. In the present condition, the home is a danger to the occupants as well as visitors or emergency personnel."

CONCLUSIONS OF[ ]LAW

The Court concludes that there is a reasonable probability that the conditions that resulted in the child's removal and the reasons for the placement of the child outside the home will not be remedied.

App. pp. 22-24 (ellipses in original). Farley appeals the termination of his parental rights.

Analysis

Farley argues that his due process rights were violated by the trial court's consideration of the Health Department report after the trial. "When reviewing the termination of parental rights, we do not reweigh the evidence or judge witness credibility." Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 147 (Ind.2005). "We consider only the evidence and reasonable inferences that are most favorable to the judgment." Id. Where a trial court enters findings and conclusions granting a petition to terminate parental rights, we apply a two-tiered standard of review. Id. First, we determine whether the evidence supports the findings. Id. Then we determine whether the findings support the judgment. Id. We will set aside a judgment that is clearly erroneous. Id. A judgment is clearly erroneous when the findings do not support the trial court's conclusions or the conclusions do not support the judgment. Id.

A petition to terminate the parent-child relationship must allege:

(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 under IC 31-34-21-5.6 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.

Ind.Code § 31-35-2-4(b)(2).

The DCS had the burden of proving these allegations by clear and convincing evidence. See Bester, 839 N.E.2d at 148. Clear and convincing evidence need not show that the continued custody of the parent is wholly inadequate for the child's very survival. Id. Instead, it is sufficient to show by clear and convincing evidence that the child's emotional and physical development is threatened by the parent's custody. Id.

Farley asserts that the trial court's independent investigation approximately forty-five days after the conclusion of the trial violated his due process rights. He points out that after the trial court received the report no further proceedings were held and that he was not given an opportunity to cross-examine the Health Department inspector or to offer his own evidence contradicting the report.

In addition to statutory protections, the Due Process Clause of the United States Constitution prohibits state action that deprives a person of life, liberty, or property without a fair proceeding. See Lawson v. Marion County Office of Family & Children, 835 N.E.2d 577, 579 (Ind. Ct.App.2005). When the DCS seeks to terminate the parent-child relationship, it must do so in a manner that meets the requirements of due process. Id. at 580. Due process is described as the opportunity to be heard at a meaningful time and in a meaningful manner. Id. Due process turns on the balancing of three factors: (1) the private interests affected by the proceeding; (2) the risk of error created by the State's chosen procedure; and (3) the countervailing governmental interest supporting use of the challenged procedure. Id. "The balancing of these factors recognizes that although due process is not dependent on the underlying facts of the particular case, it is nevertheless `flexible and calls for such procedural protections as the particular situation demands.'" Id. (citations omitted).

As we have...