In The Matter Of The Termination Of Parental-child Relationship Of A.K v. Ind. Dep't Of Child Serv.
| Decision Date | 21 June 2010 |
| Docket Number | No. 71A05-0905-JV-261.,71A05-0905-JV-261. |
| Citation | 924 N.E.2d 212 |
| Parties | In the Matter of the Termination of Parental-Child Relationship of A.K., Minor Child,andA.S., Mother, and O.K., Father, Appellants,v.Indiana Department of Child Services, St. Joseph County, Appellee. |
| Court | Indiana Appellate Court |
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Brian J. May, Mark S. Lenyo, South Bend, IN, Attorneys for Appellants.
O.K. (“Father”) and A.S. (“Mother”) appeal the involuntary termination of their parental rights to their child A.K. Both Mother and Father argue that the St. Joseph Probate Court's judgment terminating their parental rights is not supported by clear and convincing evidence. We affirm.
Mother and Father are the biological parents of A.K., born August 30, 2004. Father's paternity to A.K. was established shortly after her birth. Mother and Father were married on December 15, 2004, but the marriage was dissolved December 12, 2006. Father was awarded custody of A.K., and the court ordered that Mother “shall not have parenting time with the minor child until such time as recommended by a licensed mental health professional, and further order of this Court.” Ex. Vol., DCS Ex. 3.
On March 22, 2007, Mother, Father, and A.K. were allegedly camping at Koontz Lake. The Walkerton Police Department was called to a convenience store due to the report of a domestic disturbance. Mother told a police officer that Father tried to attack her with a hatchet. Mother also stated that she, Father, and A.K. had been living in their van. The contents of the van supported Mother's assertion. Mother also alleged that Father was homeless and had been molesting A.K. A.K. was very dirty and had poor hygiene overall.
Father and Mother were both intoxicated when the police arrived to investigate the report. The police discovered that Father had an outstanding arrest warrant from Texas and he was taken into police custody. Father had a 1996 driving while intoxicated charge that was allegedly dismissed, but he was charged with “bail jumping” because he failed to appear for a bond hearing. Tr. p. 181.
A.K. was taken to the hospital, and medical personnel determined that, although A.K. was extremely dirty, there was no evidence of sexual abuse. Because of her condition, and her parents' homelessness, A.K. was detained by the St. Joseph County Department of Child Services (“the DCS”). On April 4, 2007, the DCS filed a petition alleging that A.K. was a child in need of services (“CHINS”) because Father had been arrested and extradited to Texas, and Mother, who was homeless, did not have custody of A.K. On the date of her removal, A.K. exhibited developmental delays, and she suffered from a urinary tract infection due to her poor hygiene. She also acted aggressively towards other children and bit her fingernails until they bled.
The probate court adjudicated A.K. a CHINS on April 18, 2007. Both Mother and Father were ordered to participate in the following services: complete a parenting assessment, a substance abuse program, and a domestic violence course, attend A.A. or N.A. meetings as recommended by a therapist, comply with drug screens, and participate in family therapy. Both parents were also ordered to maintain housing and employment and/or a stable source of income.
Mother did not remain in contact with the DCS consistently, which she claimed was due to illness. Mother attended narcotics anonymous meetings, and completed a parenting class. However, she never visited with A.K. and tested positive for cocaine in August 2008. Mother is under the care of a mental health professional. She suffers from bipolar disorder and schizophrenia.
While in jail in Texas, Father completed parenting classes, but upon his return to Indiana in July, 2008, the DCS recommended that he continue to participate in those classes. Father was not able to complete the court-ordered substance abuse evaluation because mental health issues prevented him from doing so. He was referred for a psychiatric evaluation at the Madison Center, but the results had not been received on the date of the termination hearing. In addition, Father did not complete a domestic violence class or attend A.A. or N.A. meetings as previously ordered. Father complied with some, but not all, of the random drug screens. Father also visited with A.K. and attended family therapy. Since his return to Indiana, Father has resided with his step-father. For support, he receives Social Security disability income and does “odd jobs.” The DCS caseworker never visited Father's home. Father maintained that A.K. lived in the home prior to her detention by the DCS.
The petition to terminate Mother's and Father's parental rights was filed on June 26, 2008. At the termination hearing held on April 9, 2009, the court-appointed special advocate (“the CASA”) testified that in her opinion, Mother is unable to properly care for A.K. She stated that Mother “is in and out of the picture a lot.” The CASA's opinion was also based on the fact that Mother has two children who are in the custody of their father and her parental rights to two other children were terminated. Tr. pp. 13-14.
With regard to Father, the CASA testified that she did not believe that there is a bond between A.K. and Father, and that Father does not have “a basic knowledge of caring for a child.” Tr. pp. 16-17. The CASA stated that A.K. has indicated that she is afraid of her Father, but that she does climb up onto Father's lap and tells him that she loves him. Tr. p. 19. The CASA believed that termination of Father's and Mother's parental rights is in A.K.'s best interests.
The DCS caseworker also stated that termination of parental rights is in A.K.'s best interests. She testified that during visitations, Father did not interact with A.K. and did not try to “engage with her.” Tr. p. 61. She stated that A.K.'s behavior worsens after visits with Father. The caseworker also testified that Father completed some of the services ordered, kept in contact with her, attended visitation and family therapy, and maintained stable housing. The DCS caseworker admitted that she had been suspended from her employment with the DCS because she has been charged with domestic violence in Michigan. She assumed that someone had taken over A.K.'s case, but was unaware of whether the case had actually been reassigned. Tr. pp. 68-69.
A.K.'s therapist also testified that A.K. acts out after visits with Father. Tr. p. 95. She stated that A.K. is cognitively and emotionally behind, but that A.K. is improving. The therapist noted that A.K.'s interaction with her foster mother “is excellent.” Tr. p. 100.
The family consultant, who facilitated visitation between A.K. and Father, testified that with a few exceptions, Father generally did not interact with A.K. Tr. p. 116. She also stated that A.K. and Father appeared to have a bond, but “it is a bond [A.K.] would have with anybody that came to visit with her because the person is paying attention to her.” Tr. p. 118. The family consultant believes that A.K. is frightened of Father.
On April 16, 2009, the probate court issued an order terminating Mother's and Father's parental rights. The court made no findings of fact, and the order stated in pertinent part:
Appellant Father's App. p. 10; Appellant Mother's App. p. 6.
Mother and Father filed an appeal of the termination of their parental rights to A.K.1 The appeal was fully briefed on October 7, 2009. On October 30, 2009, our court issued an order to Judge Peter Nemeth directing him “to enter a revised final order that contains complete findings of fact and conclusion of law that are fully supported by the evidence and that provide an explanation as to how its factual findings support its order.” Judge Nemeth was ordered to enter the revised final order no later than November 30, 2009.
On November 25, 2009, Judge Nemeth filed a petition for extension of time, and our court granted his petition ordering him to file his revised final order “on or before January 15, 2010.” On January 15, 2010, Judge Nemeth filed a motion to vacate our court's October 30, 2009 order. Specifically, he claimed that our court's order directing him to enter complete findings of fact and conclusions of law “is not authorized by the Indiana Rules of Procedure and usurps the power of the Supreme Court of Indiana to control practice and procedure in all the Courts of Indiana.”
On January 22, 2010, our court issued an order denying Judge Nemeth's motion to vacate. Judge Nemeth was also ordered to comply with our October 30, 2009 order no later than 4:30 p.m. on Thursday, February 11, 2010. Our January 22, 2010 order also stated: “Should the Honorable Judge Peter J. Nemeth fail to timely comply ..., he is ORDERED to appear before this court on Friday, February 12, 2010 at 9:00 a.m. for a hearing to SHOW CAUSE why he should not be held in contempt for said failure to comply.” In response, on January 29, 2010, Judge Nemeth filed a motion to transfer the proceedings to our supreme court.
On February 9, 2010, our supreme court dismissed Judge Nemeth's motion to transfer. On February 11, 2010, Judge Nemeth faxed...
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