Perkins, Matter of

• Decision Date: 29 July 1976
• Docket Number: No. 3--474A60,3--474A60
• Parties: In the Matter of Dean M. PERKINS et al. Marvin PERKINS, Sr., and Mary Perkins, Respondents-Appellants, v. ALLEN COUNTY DEPARTMENT OF PUBLIC WELFARE, Petitioner-Appellee.
• Court: Indiana Appellate Court

Page 502

352 N.E.2d 502

170 Ind.App. 171

In the Matter of Dean M. PERKINS et al.

Marvin PERKINS, Sr., and Mary Perkins, Respondents-Appellants, v. ALLEN COUNTY DEPARTMENT OF PUBLIC WELFARE, Petitioner-Appellee.

No. 3--474A60.

Court of Appeals of Indiana, Third District.

July 29, 1976.

Rehearing Denied Sept. 20, 1976.

Hugo E. Martz, Fort Wayne, for respondents-appellants.

Philip H. Larmore, Adair, Perry, Beers, McAlister & Mallers, Fort Wayne, for petitioner-appellee.

HOFFMAN, Judge.

Appellants Marvin Perkins, Sr. and Mary Perkins appeal from that part of an order of the Allen Superior Court, Juvenile Division, which made two of their six children, Marvin, Jr. and Joseph, 'wards of the Department of Public Welfare for all purposes including adoption.' This proceeding was commenced on July 27, 1973, by the Allen County Department of Public Welfare (Welfare Department) which filed an amended petition requesting that Marvin, Jr. and Joseph Perkins and the remaining Perkins children be made wards of the Welfare Department for 'all purposes including adoption.'

Such petition resulted from a long history of involvement of the Welfare Department with the Perkins' family. The record reveals that such history began on April 13, 1966, when the Welfare Department filed a petition to have all the children except Joseph, who was not yet born, declared to be dependent and neglected children. The juvenile court entered such a finding on April 15, 1966, and the children were ordered placed in the Allen County Children's Home (Children's Home) until further order of the court. These children were released to the custody of their parents of June 8, 1966. On June 15, 1967, the juvenile court found that the parents were unable to provide adequate care for the six children, and ordered Marvin, Jr. and two of his siblings placed in the Children's Home. The court further ordered appellant Marvin Perkins, Sr. to pay $35 per week for support of these children. On December 21, 1967, the Welfare Department filed a supplemental petition seeking to have Joseph made a ward. On the following day Joseph and two of his brothers were ordered detained at the Children's Home. On October 4, 1968, Marvin Perkins, Sr. was found to be in contempt of the trial court by reason of his nonpayment of the aforementioned support at a time when he was fully able to do so. However, his commitment to jail was stayed to provide him an opportunity to purge himself of such contempt. On March 14, 1969, the court found all six children to be dependent children as defined by statute and made them temporary wards of the Welfare Department. On August 15, 1969, a bench warrant was issued for Marvin Perkins, Sr. for failure to purge himself of his contempt of court by paying the support ordered by the trial court. Marvin, Sr. was incarcerated and was subsequently released from custody on November 12, 1969. On December 4, 1970, two children other than Joseph and Marvin, Jr. were returned to the Perkins' home, and Marvin, Sr. was ordered to pay $35 per week for support of the remaining four children. On January 29, 1971, the father had paid only $15 in support and on April 2, 1971, it was found by the trial court that the father was unemployed and not paying support.

During this period of time Mrs. Perkins was hospitalized for psychiatric care, and 'a good deal of turmoil' existed in the Perkins' home. Further, their small home was maintained in an unclean and disarrayed condition, with 'very dilapidated' furniture and 'holes in the walls.'

In the months immediately preceding the filing of the petition which initiated this action, the conditions in the Perkins' home improved to some degree, and the Perkins became able to adequately care for the two children who remained in the home. However, Mrs. Perkins suffered recurrence of her mental disorder, and Mr. Perkins was unable to work due to an injury. It was the opinion of the Welfare Department caseworker that due to these circumstances the Perkins 'can care for two children, but we just don't feel that they will ever be able to care for six children at a time.'

As a result of this situation, the Welfare Department filed the petition here at issue and, as stated hereinabove, the trial court granted such petition as to Marvin, Jr. and Joseph, making them 'wards of the Department of Public Welfare for all purposes including adoption.'

On appeal, the Perkins raise several issues regarding the propriety of this disposition by the trial court. The first such issue which they raise is whether the trial court as a juvenile court had jurisdiction to order the termination of their parental rights. The exact position taken by the appellants in this regard is that because the statute delineating the dispositional alternatives of the juvenile courts contains no express grant of an authority to terminate parental rights, no such authority existed in the trial court.

An Indiana juvenile court clearly has jurisdiction to determine whether a child subject to its jurisdiction is dependent or neglected when a petition is before it alleging such conditions. See, IC 1971, 31--5--7--7 (Burns Code Ed.). However, it has no jurisdiction over a petition seeking solely to terminate parental rights. IC 1971, 31--5--7--7, supra; IC 1971, 31--3--1--7 (Burns Supp.1975). The issue thus presented by the case at bar is whether a petition alleging dependency or neglect and seeking wardship for all purposes including adoption authorizes a juvenile court to terminate parental rights as a dispositional alternative.

IC 1971, 31--5--7--15 (Burns Supp.1975), provides, in pertinent part, as follows:

'If the court shall find that the child comes within the provisions of this act (31--5--7--1--31--5--7--25), it may by order duly entered, proceed as follows:

'(1) Place the child on probation or under supervision in his own home or in the custody of a relative or other fit person, upon such terms as the court may determine;

'(2) Commit the child to any suitable public institution or agency, which shall include, but is not limited to, the state institutions for the feeble-minded, epileptic, insane, or any other hospital or institution for the mentally ill, or commit the child to a suitable private institution or agency incorporated or organized under the laws of the state, and authorized to care for children or to place them in suitable approved homes;

'(3) The court may make such child a ward of the court, a ward of the department of public welfare of the county, or a ward of any licensed child placing agency in the state willing to receive such wardship;

'(4) May take cause under advisement or postpone findings and judgment for a period not to exceed two (2) years unless sooner requested by the party proceeded against in which event not to exceed ninety (90) days.

'(5) Make such further disposition as may be deemed to be to the best interests of the child, except as herein otherwise provided.'

IC 1971, 31--5--7--15, supra, was recently considered by this court in In Re Collar et al. v. Dept. of Welfare (1973), 155 Ind.App. 668, 294 N.E.2d 179 (transfer denied), a case similar to the case at bar. In In Re Collar the County Welfare Department had filed a petition to have a child made a parmanent ward for adoption purposes and, after a hearing on such petition, the trial court so ordered. The appellant asserted in this court that insufficient evidence was introduced in the trial court to support such a disposition of the child. In passing upon such contention, this court examined the provisions of IC 1971, 31--5--7--15(5), supra, and stated:

'In the instant case the jurisdiction of the child was obtained by the trial court by the petition of the Welfare Department seeking to have the child declared dependent and neglected. Section 9--3207, supra. (IC 1971, 31--5--7--7 (Burns Code Ed.)). The trial court found the child to be a dependent child. At that time the parental rights of the natural mother to control and have custody of the child were terminated by the order of temporary wardship. Having once found the child to be a 'dependent child' the trial court was guided by the best interests of the child. Section 9--3215, supra. (IC 1971, 31--5--7--15 (Burns Supp. 1975)).'

Ibid. at 671 of 155 Ind.App., at 182 of 294 N.E.2d.

The appellants have not attempted to distinguish In Re Collar on this point. The foregoing rationale from such case and its implicit approval of the procedure utilized by the trial court in the case at bar is reaffirmed. Such holdings are dispositive of this issue.

Appellants next contend that the proceeding in the trial court was constitutionally defective in that the petition here at issue failed to adequately impart notice that the proceeding in the trial court concerned the termination of their parental rights. However, it must be remembered that the petition here at issue alleged that the children were dependent and neglected and sought an order making them 'wards of the County Department of Public Welfare for all purposes including adoption.' Such petition further alleged that the best interests of the children would be served if they 'were removed from the care, custody and control of their said parents so that said children could be placed in suitable homes for adoption.'

The issue, then, is whether such statements constituted notice that the petition sought the termination of the Perkins' parental rights. The Supreme Court of Indiana has said that '(n)otice, giving a defendant (an) opportunity to be informed regarding the nature of the action and reasonable opportunity to make a defense, is an essential element of due process.' ¹ State ex rel. Red Dragon Diner v. Superior Ct. (1959), 239 Ind. 384, at 385, 158 N.E.2d 164, at 165. See also: Mullane v. Central Hanover B. & T. Co. (1950), 339 U.S. 306, at 314, 70 S.Ct. 652, 94 L.Ed. 865, at 873, wherein the Supreme Court of the United States held that 'notice must be...