IN RE TERMINATION OF BDJ

• Decision Date: 03 May 2000
• Docket Number: No. 26A01-0001-JV-22.,26A01-0001-JV-22.
• Parties: In re the Matter of the Termination of the Parent-Child Relationship of B.D.J., B.O.J., K.M.G., Minor Children. Bryan Jones, Appellant-Respondent, v. Gibson County Division of Family and Children, Appellee-Petitioner.
• Court: Indiana Appellate Court

728 N.E.2d 195

In re the Matter of the Termination of the Parent-Child Relationship of B.D.J., B.O.J., K.M.G., Minor Children.

Bryan Jones, Appellant-Respondent, v. Gibson County Division of Family and Children, Appellee-Petitioner.

No. 26A01-0001-JV-22.

Court of Appeals of Indiana.

May 3, 2000.

James G. McDonald, III, Princeton, Indiana, Attorney for Appellant.

Jerry D. Stilwell, Princeton, Indiana, Attorney for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Respondent, Bryan Jones (Jones), appeals the trial court's order terminating the parent-child relationships between Jones and his daughter, B.D.J., son, B.O.J., and daughter, K.M.G. (collectively "Children").

We affirm.

ISSUE

Jones raises two issues on appeal, which we consolidate and restate as: whether there was sufficient evidence to support the involuntary termination of Jones' parental rights under Ind.Code § 31-35-2-4.

FACTS AND PROCEDURAL HISTORY

On July 18, 1997, the Gibson County Division of Family and Children (DFC) was called to the home of Betty Greer (Greer), the Children's mother. Jones is the adjudicated father of B.D.D., B.O.J. and K.M.G. At that time, B.D.D. was 35 months old, B.O.J. was 23 months old and K.M.G. was 8 months old. The DFC found the Children home alone and asleep on a couch that was soaked with urine. The apartment was cluttered and dirty and the only food that was found was eggs and old cottage cheese. As a result, the trial court granted emergency wardship of the Children to the DFC on July 18, 1997.

On July 21, 1997, a detention hearing was held and the trial court ordered B.D.D. and B.O.J. to be placed with Debra Fields (Fields), their paternal grandmother, and K.M.G. to be placed with Kenny Greer, her maternal grandfather. On September 9, 1997, the trial court found that the Children were children in need of services (CHINS).

On September 14, 1997, K.M.G. was removed from the home of Kenny Greer, at his request, and placed in the Conklin Foster Home. Later, in January 1998, Fields requested that B.O.J. be removed from her home. On March 5, 1998, the trial court, in response to the requests of the grandparents, ordered that all of the Children be placed in a licensed foster home. On March 6, 1998, the Children were all placed in the care of Mark and Joann Ferguson.

Throughout the time the DFC was caring for the Children, Jones failed to appear for hearings on the placement and care of his Children. On September 25, 1997, Jones failed to appear for a dispositional hearing wherein the trial court continued the wardship and out-of-home placement of the Children. In the trial court's March 5, 1998, entry, it noted that it could not locate the parents of the Children. Finally, on January 9, 1998, Jones failed to appear for a six-month review hearing in which the trial court continued the wardship.

On October 15, 1999, the trial court issued its order terminating the parent-child relationships between Jones and the Children. In the trial court's Findings of Fact and Conclusions of Law, it found: "The father Bryan Jones, having been given notice, has failed to appear for nearly all of the court review hearings scheduled." (R. 68). Jones appeals the trial court's order terminating the parent-child relationship.

DISCUSSION AND DECISION

Jones alleges that there is insufficient evidence to support the involuntary termination of his parental rights under Ind. Code § 31-35-2-4(b)(2). Specifically, Jones alleges that the DFC failed to provide reasonable services to him. We find that sufficient evidence exists to support the trial court's decision to terminate the parent-child relationships.

In ordering the termination of the parental relationships between Jones and his Children, the trial court made specific findings. We will not set aside the specific findings unless they are shown to be clearly erroneous and we will affirm a general judgment on any legal theory supported by the evidence. Matter of D.G., 702 N.E.2d 777, 780 (Ind.Ct.App.1998). "A finding is clearly erroneous when there are no facts or inferences drawn therefrom which support it." Id. In reviewing the termination proceedings, we will neither reweigh the evidence nor judge the credibility of the witnesses. Matter of A.N.J., 690 N.E.2d 716, 720 (Ind.Ct.App.1997). Therefore, we consider only the evidence that supports the trial court's decision and the reasonable inferences drawn therefrom. Id.

The involuntary termination of parental rights is an extreme measure that terminates all the rights of the parent to his or her child and is designed to be used only as a last resort when all other reasonable efforts have failed. Id. The Fourteenth Amendment to the United States Constitution provides parents with the right to establish a home and raise their children. Matter of A.N.J., 690 N.E.2d at 720. However, the law allows for the termination of those rights when the parties are unable or unwilling to meet their responsibility as parents. Id. This policy balances the constitutional rights of the parents to the custody of their children with the State's limited authority to interfere with this right. Id. at 718. Because the ultimate purpose of the law is to protect the child, the parent-child relationship will give way when it is no longer in the child's interest to maintain this relationship. Id. at 720.

In order to terminate the parent-child relationship, the State must prove:

(b)(2)(A). . . (i) the child has been removed from the parent for at least six (6) months under a dispositional decree;. . .

(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. Further, the State must establish the elements of Ind.Code § 31-35-2-4 by clear and convincing evidence. Ind.Code § 31-34-12-2.

Removal from Parent

Jones does not dispute that the State satisfied Ind.Code § 31-35-2-4(b)(2)(A). This section requires that, "The child has been removed from the parent for at least six (6) months under a dispositional decree." Ind.Code § 31-35-2-4(b)(2)(A). Removal under a dispositional decree refers to a dispositional decree that authorizes an out-of-home placement. Tipton v. Marion County Dept. of Public Welfare, 629 N.E.2d 1262, 1266 (Ind.Ct.App.1994). When a child is removed from one parent and placed in foster care, the child is effectively removed from the custody of both parents. Matter of K.H. 688 N.E.2d 1303, 1305 (Ind.Ct.App. 1997).

In the present case, the DFC removed the Children from Greer's home on July 18, 1997. The DFC was granted emergency wardship of the Children and authorized to place the Children in foster care or other appropriate facilities in the trial court's July 18, 1997 order entry. Further, the Children remained placed outside of the home of the parents since the initial removal. The DFC filed its Petition for Termination of Parental Rights on January 26, 1999. Thus, the termination proceedings were not initiated until more than six months after the date the Children had been removed from the parent pursuant to Ind.Code § 31-35-2-4(b)(2)(A).

Sufficient evidence that the conditions that resulted in removal would not be remedied.

Jones alleges that the DFC failed to provide information on services provided by the DFC and thus failed to give him the opportunity to remedy the conditions that resulted in the Children's removal. Jones argues that insufficient evidence exists to support the trial court's conclusion that the conditions that resulted in the Children being placed outside the home of the parent would not be remedied, because the DFC did not provide services to Jones that would assist him in correcting those conditions. We disagree.

In order to terminate the parent child relationship, the state must show by clear and convincing evidence that there is a reasonable probability that "the conditions that resulted in the child's removal or the reason for placement outside the home of the parents will not be remedied." Ind. Code § 31-35-2-4(b)(2)(B). The Children were in Greer's home at the time they were removed, therefore, the State in its case against Jones, is required only to show that the reason the Children were not placed with Jones would not be remedied. To hold Jones liable for the conditions that resulted in the Children's removal would be to hold Jones liable for the actions of Greer.

In order to determine whether the conditions which led to the placement of the Children outside of the home of Jones are likely to be remedied, the trial court should first determine what conditions led to the DFC placing the Children with foster care rather than placing them with the father. See In re A.A.C., 682 N.E.2d 542, 544 (Ind.Ct.App.1997)

. Second, the trial court should determine whether there is a reasonable probability that those conditions will be remedied. Id. (holding that when the child is not in the custody of the parent, the focus of the termination inquiry is what conditions led to the DFC retention of the custody of the child.)

When assessing the parent's fitness to care for children, the trial court should view the parent as of the time of the termination hearing and take into account any evidence of changed conditions. Matter of A.N.J., 690 N.E.2d at 721. The trial court can reasonably consider the services offered by the DFC to the parent and the parent's response to those services. Id. However, the law concerning termination of parental rights does not require the DFC to offer services to the parent to correct the deficiencies in childcare, as Jones asserts. Wardship of J.C. v. Allen County Office of Family and...