Tipton v. Marion County Dept. of Public Welfare

Decision Date02 March 1994
Docket NumberNo. 49A02-9302-JV-89,49A02-9302-JV-89
Citation629 N.E.2d 1262
PartiesHugh TIPTON and Billy Boster, Appellants-Respondents, v. MARION COUNTY DEPARTMENT OF PUBLIC WELFARE, Appellee-Petitioner. 1
CourtIndiana Appellate Court

Mark E. Bell, Bell & Bell, Indianapolis, for appellants-respondents.

Elizabeth G. Filipow, Marion County Office of Family and Children, Indianapolis, for appellee-petitioner.

ROBERTSON, Judge.

Hugh Tipton and Billy Boster appeal the termination of their parental rights with respect to their children, W.T., and E.B., respectively, who were born of the same mother. W.T. was born on March 8, 1988. E.B. was born on April 1, 1989. The children became wards of the State on September 14, 1989. Termination occurred on November 4, 1992.

We reverse as to Tipton but affirm as to Boster.

To obtain a termination of the parent-child relationship, the petitioner must allege and prove 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); I.C. 31-6-5-4.3.

The federal constitution dictates that the petitioner prove these elements by clear and convincing evidence. Santosky v. Kramer (1982), 455 U.S. 745, 763, 102 S.Ct. 1388, 1400, 71 L.Ed.2d 599; Egly v. Blackford County Department of Public Welfare (1992), Ind., 592 N.E.2d 1232, 1234; Waltz v. Daviess County Department of Public Welfare (1991), Ind.App., 579 N.E.2d 138, 140, trans. denied; Matter of VMS (1983), Ind.App., 446 N.E.2d 632, 636. The stricter standard of proof is applied in part because of the State's power to shape the historical events that form the basis for termination; the State's unusual ability to structure the evidence in a termination proceeding increases the risk of an erroneous factfinding. Santosky, 455 U.S. at 763, 764, 102 S.Ct. at 1400. Hence, the standard of proof, by its very terms, demands consideration by the trial court of the quality of evidence as well as quantity. Id.

When we review a termination of parental rights by a trial court, we will not reweigh evidence nor judge the credibility of witnesses. Waltz, 579 N.E.2d at 141; Page v. Greene County Dept. of Public Welfare (1991), Ind.App., 564 N.E.2d 956, 959. Rather, we consider only the evidence and inferences reasonably drawn from the evidence, which are most favorable to the judgment. Id. When reviewing findings of fact and conclusions law entered in a case involving a termination of parental rights, we apply a two-tiered standard of review: we determine whether the evidence supports the findings; then we determine whether the findings support the judgment. Id. We will set aside the trial court's findings and judgment only if they are clearly erroneous. Ind.Trial Rule 52(A); Egly, 592 N.E.2d at 1235. Clear error is that which leaves us with a definite and firm conviction that a mistake has been made. Id.; Waltz, 579 N.E.2d at 142.

The fathers challenge the sufficiency of the court's findings and the evidence as to all but the fourth element of proof. Accordingly, we direct our attention to the other three.

I.

The fathers argue that the DPW failed to prove that their children had been "removed from the parent" for at least six (6) months under a dispositional decree. Indiana Code 31-6-1-23 defines the term "parent" as used in Article 6 to include both parents regardless of their marital status.

Although the legislature has not expressly provided a definition of the term "removed," the terms "removed" or "removal" are used repeatedly throughout the article in conjunction with the notions of "detention," "out-of-court placement," and the child being "taken into custody" to protect the child and ensure his safety. See, e.g. I.C. 31-6-4-4(d) (Permitting caseworker to take the child into custody if, among other things, "consideration for the safety of the child precludes the immediate use of family services to prevent removal of the child"); I.C. 31-6-4-6(f) ("If a child has been removed from his parent ... under section 4(d) ... the court shall make written findings ... that state: (1) whether removal ... was necessary to protect the child; (2) a description of the family services available before removal of the child; ... (4) why the efforts made to provide family services did not prevent removal of the child"); I.C. 31-6-4-10(c) ("The [CHINS] petition ... must contain the following information: ... (7) A statement indicating whether the child has been removed from the child's parent ..."); I.C. 31-6-4-15.3(i) (The court shall accompany its dispositional decree with written findings and conclusions upon the record concerning, among other things, the efforts made to prevent the child's removal from the parent). Since it is readily apparent that a child can be removed from a parent before CHINS proceedings have even been initiated, removal under a dispositional decree must refer to a dispositional decree which authorizes an out-of-home placement. See I.C. 31-6-4-15.3(e), (f).

The record reflects that, pursuant to a dispositional decree, the court ordered supervision of the children by the DPW with placement in the mother on September 27, 1989. On July 26, 1990, the court held a hearing to review its jurisdiction and the placement of the children. The entry shows that the court ordered "the children continued under supervision of the MCDPW with placement in foster care." The record thus establishes that on July 26, 1990, the court modified the original dispositional decree to "[r]emove the child[ren] from [their] home and place [them] in another home ..." I.C. 31-6-4-15.4(a)(3); I.C. 31-6-4-19(h). The testimony establishes that the children were removed from their home on the following day, July 27, 1990. The fathers did not have physical custody of the children when they were removed. Nonetheless, the children were effectively removed from both of their parents when they were removed from the physical custody of the mother and placed in another home pursuant to the modified dispositional decree of July 26, 1990. Accordingly, we conclude that the trial court did not err in finding that the children had been removed from their fathers for a period of at least six (6) months under a dispositional decree.

II.

The fathers argue that the evidence offered at the termination hearings is insufficient to sustain the trial court's findings and that the findings do not permit the conclusion that there is a reasonable probability that the conditions that resulted in the children's removal will not be remedied or that continuation of the parent-child relationships poses a threat to the well-being of the children.

To determine whether a reasonable probability exists that the conditions justifying the child's removal from the home will not be remedied, the trial court should determine the parent's ability to meet the needs of the child as of the time of the termination hearing, taking into account any evidence of changed conditions. R.M. v. Tippecanoe County Department of Public Welfare (1991), Ind.App., 582 N.E.2d 417, 419. Due to the permanency of termination, the trial court must also consider the parent's habitual patterns of conduct as a means of determining the probability of future detrimental behavior. Id.

The DPW did not introduce into evidence the CHINS petition, the predispositional report, the parental participation order, the modification report or any other document or order containing written findings, which was required to be created during the proceedings. See I.C. 31-6-4-15.3(i) (requiring written findings at dispositional stage containing the court's reasons for disposition). Neither did the DPW ask the court to take judicial notice of the underlying CHINS proceedings. Hence, none of the record of the CHINS proceedings is before us.

The DPW made no showing of the conditions which brought about the filing of the CHINS petition in the first instance, or necessitated removal of the children from the mother in late July, 1990. If certain circumstances, conditions or behaviors of the fathers necessitated the wardship or were so harmful that they prevented the DPW from recommending placement of the children with their fathers once they had been physically removed from the mother, the DPW made no effort to demonstrate what those circumstances were at the termination proceedings. This dearth of evidence explains the absence of any finding concerning the neglectful or abusive nature of the father-child relationships historically, before removal. 2

The DPW's caseworker, who had been assigned to the case in April, 1992, after termination proceedings had already been initiated, testified that the DPW was recommending termination because of the fathers' lack of involvement since the DPW acquired wardship, the results of the Minnesota Multiphasic Personality Inventory (MMPI) given the fathers, the failed appointments, and the need of the children for a permanent home. 3 However, this court has routinely looked beyond the factors identified by the DPW to the totality of the evidence in ascertaining whether the statutory criteria have been met. See e.g., Matter of Fries (1981), Ind.App., 416 N.E.2d 908. The caseworker testified that, for the DPW to recommend reunification, the fathers needed to complete a parenting assessment and attend parenting classes, provide a stable environment and maintain a proper home, demonstrate financial stability and start regular visitation.

The trial court made findings relating to each of the DPW's conditions for reunification. The court found that neither father completed a parenting...

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