Stone v. Daviess County Div. of Children and Family Services

• Decision Date: 17 October 1995
• Docket Number: No. 14A01-9410-JV-324,14A01-9410-JV-324
• Citation: 656 N.E.2d 824
• Parties: , 7 NDLR P 164 Paul Ed STONE and Sally Stone, Appellants-Respondents, v. The DAVIESS COUNTY DIVISION OF CHILDREN AND FAMILY SERVICES, Appellee-Petitioner.
• Court: Indiana Appellate Court

Page 824

656 N.E.2d 824

13 A.D.D. 325, 7 NDLR P 164

Paul Ed STONE and Sally Stone, Appellants-Respondents, v. The DAVIESS COUNTY DIVISION OF CHILDREN AND FAMILY SERVICES Appellee-Petitioner.

No. 14A01-9410-JV-324.

Court of Appeals of Indiana.

Oct. 17, 1995.

Transfer Denied Feb. 5, 1996.

Joe D. Black, Ramsey & Black, Vincennes, Dean Sobecki, Washington, for appellants.

Tim J. Dant, Hayes, Dant and Steiner, Washington, for appellee.

Robert Leonard, Washington, Guardian ad litem.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Paul Ed Stone ("Father") and Sally Stone ("Mother") appeal from the trial court's order terminating their parental rights with respect to their five children. ¹ The Daviess County Division of Children and Family Services (DCFS) filed a petition to terminate the parental rights of both parents due to inadequacies in the care being provided to the children. Both Father and Mother are persons of limited intelligence and have other mental or cognitive deficiencies. Following trial, the court held that termination of parental rights was in the best interests of the children.

We affirm.

ISSUES

Both Father and Mother present issues for our review, which we restate as follows:

1. Whether there was sufficient evidence to support the termination of Father's parental rights.

2. Whether the Americans with Disabilities Act requires that prior to termination of parental rights the DCFS must establish it has made reasonable accommodation in providing services for the special needs of disabled parents.

3. Whether the trial court erred when it admitted into evidence the testimony of a clinical social worker.

4. Whether the trial court erred when it declined to consider the wishes of one of the children concerning the termination of parental rights.

FACTS

Father and Mother were married on July 28, 1980. There were five children born of the marriage: Teresa, born in 1979, Paul, Jr., born in 1981, Daniel, born in 1983, and twins Terry and Jerry, born in 1984. The DCFS first became involved with the Stone family around 1984. On December 18, 1989, the DCFS filed a petition alleging that the Stone children were children in need of services ("CHINS"), and they were removed from the home. Mother and Father were separated when the children were removed and they eventually divorced.

The children were removed from the home pursuant to a CHINS petition for a variety of reasons. The daughter, Teresa, had reported an incident of sexual abuse by her paternal grandfather. The home was in poor condition and posed a health and safety risk to the children. The children were not receiving proper hygiene, medical care, supervision, or nutrition. None of the school-age children had been attending school regularly. When the children did attend school, the parents had not been picking them up after school, and often would not be home to let the children in when they came home from school. The DCFS also believed that Father and Mother had been using excessive discipline with the children. Following the children's removal, the parents participated in DCFS provided services including parenting classes, homemaker services, visitation provisions, family counseling, and individual counseling.

Mother is mentally deficient with an I.Q. of 67, which places her in the lowest 3% of the population. She has other cognitive and personality deficiencies as well. She has a dependent personality, having no identity apart from other people. Although Mother was cooperative with the DCFS, the advice and counseling regarding parenting and psychological issues were beyond her level of understanding. Mother continues to deny that the children have been abused or neglected or that she has any parenting deficits.

Father has fewer limitations than Mother and has an I.Q. of 71, which places him in the lowest 10% of the population. Father admits that he has a temper and has disciplined the children with a belt. At the time of removal, Father believed that the children were developmentally normal and that it was appropriate to teach children to be mean because it is a mean world. Father is a hard worker and has cooperated with the DCFS by attending parenting classes and counseling. However, he has consistently denied that there had been any problems with raising the children, in maintaining a home suitable for children, or that he had any parenting deficits. Over the years during which the DCFS provided services, Father made little progress toward overcoming his deficiencies.

All five children were badly harmed, emotionally and psychologically, while in the custody of Father and Mother. The children currently live in four separate foster homes, with the twins residing together. Teresa resists visitations with her parents and is in favor of the termination of parental rights. Paul, Jr., age thirteen, was academically and socially delayed in the custody of his parents and is extremely angry and abusive. He has bonded with his foster parents and wants to live with them. The second oldest boy, Daniel, is very aggressive and regresses easily. He is unresponsive to discipline during visitation with Father. The twins, almost ten years old, were the most damaged in the custody of their parents. When placed in foster care they displayed wild, untrained behavior consisting of kicking, biting and screaming. The boys would urinate in the corner of the house as if not potty trained. They each have respiratory disorders, attention deficit disorders, and are on medication.

During the four years following removal of the children, the juvenile court conducted several review hearings. Also during that period, on February 18, 1992, the DCFS filed a petition to terminate the parental rights of both Father and Mother. Trial was held on three separate days, and on June 19, 1994, the trial court entered its findings and termination order. The DCFS plans to put the children up for adoption or, if adoption is not possible, to continue the children in foster care.

DISCUSSION AND DECISION

Issue One: Sufficiency of the Evidence

Father contends the evidence was insufficient to support the trial court's termination of his parental rights. Specifically, Father contends the trial court's order terminating his parental rights must be reversed because the DCFS failed to establish, by clear and convincing evidence, the statutory elements required for termination of the parent-child relationship. We cannot agree.

When reviewing an order terminating parental rights, we will neither reweigh the evidence nor judge the credibility of witnesses. Page v. Greene County Dept. of Welfare (1991), Ind.App., 564 N.E.2d 956, 959. Rather, we only consider the evidence most favorable to the court's decision and the reasonable inferences to be drawn therefrom. Id. We will not set aside the findings and judgment of the trial court unless clearly erroneous. Matter of Y.D.R. (1991), Ind.App., 567 N.E.2d 872, 876.

A parent's right to establish a home and raise his children is protected by the Fourteenth Amendment to the United States Constitution. Matter of Adoption of D.V.H. (1992), Ind.App., 604 N.E.2d 634, 636, trans. denied. "However, these parental interests are not absolute and must be subordinated to the child's interest in determining the appropriate disposition of a petition to terminate parental rights." Shaw v. Shelby County Dept. of Public Welfare (1992), Ind.App., 584 N.E.2d 595, 601. The involuntary termination of parental rights is the most severe action a juvenile court can take. In re Matter of Robinson (1989), Ind., 538 N.E.2d 1385, 1388 (dissenting opinion of J. Dickson and J. DeBruler). Therefore, termination is designated to be a last resort, available only when all other reasonable efforts have failed. Id.

Indiana Code § 31-6-5-4(c) provides the exclusive means to effect the involuntary termination of a parent-child relationship. That statute requires the DCFS to prove by "clear and convincing evidence" that:

(1) the child has been removed from the parent for at least six (6) months under a dispositional decree;

(2) there is a reasonable probability that:

(A) the conditions that resulted in the child's removal will not be remedied; or

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

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

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

IND.CODE § 31-6-5-4(c); Matter of Tucker (1991), Ind.App., 578 N.E.2d 774, 776, trans. denied. The trial court should judge a parent's fitness as of the time of the termination hearing and take into consideration evidence of changed conditions. Matter of Adoption of D.V.H., 604 N.E.2d at 637. Further, "the parent's habitual patterns of conduct must be evaluated to determine whether there is a substantial probability of future neglect or deprivation." Id. The trial court need not wait until the children are irreversibly influenced by their deficient lifestyle such that their physical, mental and social growth is permanently impaired before terminating the parent-child relationship. J.K.C. v. Fountain County Department of Public Welfare (1984), Ind.App., 470 N.E.2d 88, 93.

The trial court entered specific findings with respect to all of the elements of Indiana Code § 31-6-5-4. Father contends the DCFS failed to prove, by clear and convincing evidence, that (1) the conditions resulting in the children's removal from the home will not be remedied, (2) the continuation of the parent-child relationship poses a threat to the well-being of each child, (3) the termination is in the best interest of each child, and (4) the DCFS has a satisfactory plan for the care and treatment of each child.

The DCFS presented testimony from several experts who were of the opinion that Father was incapable of adequately parenting his children and that he had made little progress in correcting his problems. Clinical social...