Tucker, Matter of

• Decision Date: 30 September 1991
• Docket Number: No. 73A04-9101-CV-23,73A04-9101-CV-23
• Citation: 578 N.E.2d 774
• Parties: In the Matter of the Involuntary Termination of the Parent-Child Relationship of Christopher TUCKER and his Mother Sherri E. Tucker. Sherri E. TUCKER, Appellant-Respondent, v. SHELBY COUNTY DEPARTMENT OF PUBLIC WELFARE, Appellee-Petitioner.
• Court: Indiana Appellate Court

Page 774

578 N.E.2d 774

In the Matter of the Involuntary Termination of the

Parent-Child Relationship of Christopher TUCKER

and his Mother Sherri E. Tucker.

Sherri E. TUCKER, Appellant-Respondent, v. SHELBY COUNTY DEPARTMENT OF PUBLIC WELFARE, Appellee-Petitioner.

No. 73A04-9101-CV-23.

Court of Appeals of Indiana,

Fourth District.

Sept. 30, 1991.

Robert D. Jones, Shelbyville, for appellant-respondent.

Jeffrey M. Linder, Shelbyville, Amy Good, Shelbyville, for appellee-petitioner.

CONOVER, Judge.

Respondent-Appellant Sherri E. Tucker appeals the trial court's judgment terminating her parental rights in her minor child, Christopher Tucker. The petition for termination was filed by the Shelby County Department of Public Welfare (DPW).

We affirm.

Tucker raises the following restated and consolidated issues for our review:

1. whether there was clear and convincing evidence to support termination of Sherri's parental rights;

2. whether the trial court's judgment violated Indiana statutes and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution; and

3. whether termination of parental rights was in Christopher's best interest.

Sherri is the mother of two children, Christopher, born September 7, 1983, and Allen, a younger son. On August 22, 1989, the DPW filed a petition to terminate Sherri's parental rights in Christopher. The trial court granted the petition on October 8, 1990. In granting the petition, the trial court made specific findings of fact and conclusions of law. The pertinent factual findings are:

1. The child has been removed from his parent for a continuous period of at least six months under a dispositional decree of the Shelby Superior Court No. 1, dated January 11, 1989, Cause Number 73D01-8812-JC-26.

2. There is a reasonable probability that the conditions resulting in the removal of the child from the parent's home will not be remedied in that:

a. Mother cannot control the child's behavior.

b. Counseling services for mother are not helpful to change her behavior.

c. The mother is now separated and divorced from her husband thus reducing her financial and mental stability.

d. The mother is suffering from Mixed Personality Disorder and Borderline Personality Disorder which is chronic with a poor prognosis if in treatment. Medication is not appropriate.

e. This limits her ability to parent a child successfully.

f. The child was removed at the mother's request with the child displaying signs of self-abuse due to emotional upset.

g. The child improved in counseling and his developmental delays were improving.

h. Mother blamed the emotional upset in her life and marriage breakup on Christopher.

i. Child expressed no sense of loss over removal from mother indicating the lack of bonding between mother and child.

j. Counseling cannot resolve this mother-child relationship with the physical and emotional detachment being a long-standing problem.

k. The mother has a long history of counseling, medication and other contacts with mental health professionals. Her condition has worsened over time with little real improvement.

l. The mother exaggerates the child's misbehavior which was not observed in foster care.

m. The mother's visits with the child tended to focus on the mother's problems and not the child's concerns.

3. Termination is in the best interest of the child in that the mother's condition will not likely improve and she will continue to be unable to parent the child.

4. The county department of welfare has a satisfactory plan for the care and treatment of the child which is foster care and adoption. (R. 87-88). ¹

Sherri first contends the termination of her parental rights was not supported by clear and convincing evidence. She contends the evidence does not support the court's findings. She strongly contends the findings, even if accepted as true, do not support the judgment as a matter of law.

In order to effect the termination of the parent-child relationship, the DPW must present clear and convincing evidence to support the elements of IND.CODE 31-6-5-4. See, Matter of D.B. (1990), Ind.App. 561 N.E.2d 844, 847. IC 31-6-5-4 requires proof that:

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

(2) there is a reasonable probability that the conditions that resulted in the child's removal will not be remedied;

(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. ²

On appeal of a termination of parental rights, this Court will not reweigh the evidence, nor judge the credibility of the witnesses. Rather, we will consider only the evidence most favorable to the judgment and the reasonable inferences drawn therefrom. Griffin v. Bartholomew County Dept. of Public Welfare (1989), Ind.App., 542 N.E.2d 1385, 1388. Further, where the trial court enters findings of fact and conclusions of law, we apply a two-tier standard of review

... first, we will determine whether the evidence supports the findings; second, we will determine whether the findings support the judgment. The trial court's findings and conclusions will be set aside only if they are clearly erroneous, that is, that the record contains no fact or inferences supporting them. Keystone Square v. Marsh Supermarkets, Inc. (1984), Ind.App., 459 N.E.2d 420, 422.

Id.

The evidence presented at the termination hearing established that because of her tragic childhood, which included repeated beatings by her mother and sexual molestations by her father, Sherri developed severe mental disorders. Therapist Alfred Barrow of Campion and Associates, who conducted approximately fifty-five counseling sessions with Sherri, testified she has schizophrenic symptoms with strong paranoia, and she is unable to develop a close relationship with Christopher and unable to develop parental bonds. At times during the counseling period, Sherri showed signs of improvement, only to regress back to a crying, uncontrollable state in which she would become dirty and disheveled. When Christopher would be removed from her home, she would restabilize. Barrow also testified that it was just a matter of time before Christopher would begin to model Sherri's behavior by developing further emotional difficulties, depression, and neurotic characteristics.

Michael Parker, an employee of Gallahue Mental Health Center, testified that Sherri suffered from a Mixed Personality Disorder. He opined it was possible, but not probable, that Sherri would in the future be able to parent Christopher.

Susan Watson, a therapist who administered tests to Sherri, also testified Sherri's prognosis for mental health was very poor given the long-standing nature of the problem despite extensive counseling. Watson stated the only hope of recovery for Sherri would be years of inpatient treatment called "characterological transformation", a treatment plan with a very poor success rate.

David Esary, a pediatrician who examined Christopher and his medical records, testified the records indicated Sherri could have Munchausen's Syndrome by Proxy, a condition in which a mother operates under the delusion that seeking medical attention for a child is a positive indication of her parental abilities. This condition can be harmful to a child because it results in the parent giving the child too much medication.

Three times Sherri requested the DPW to place Christopher in foster care because she was unable to control his behavior. The first placement occurred from July, 1985, to February, 1986. Placement stemmed from an episode where a kitchen stove fell upon Christopher and injured him. After emergency technicians informed the DPW of the injury, a DPW county homemaker visited the home to investigate. She found Christopher, who was not yet two, running rampant through the house. Sherri claimed that Christopher was trying to kill her and the rest of the family, and she could not control him. Sherri also requested county wardship. After both Christopher and Allen were placed in foster care, the DPW set up counseling services, developed visitation schedules, and provided transportation for visits.

When the two children were returned to Sherri's care in February of 1986, DPW monitored Sherri's progress. Home visits revealed the kids were frequently medicated and in bed sleeping at odd times of the day. Even though DPW employees could detect no signs of illnesses, Sherri insisted on giving the children medicines such as Dimetapp and Co-Tylenol.

In March of 1986, about five weeks after the children were returned to her custody, a DPW employee visited the home and found Sherri shaking and crying and proclaiming that Christopher was uncontrollable. Sherri also claimed that Christopher had begun setting fires. She asked DPW to take custody of Christopher. During the time Christopher was in foster care, Sherri was allowed visitation with him in her home. During a number of the visits, Sherri gave medication to Christopher even though there were no indications of illness. Upon his return from visits with his mother, Christopher would exhibit self-abuse, such as biting himself and picking the skin off his nose until it became bloody.

Christopher was returned to Sherri's custody in March of 1987. In July of 1988, Christopher was accidentally given an overdose of Dilantin by Sherri. ³ The overdose required a visit to the hospital.

In November of 1988, Sherri took Christopher into the DPW's offices and insisted they again take wardship of Christopher. She again claimed he was uncontrollable. As she spoke, Christopher began biting himself, beating his head against the floor, and beating his face with his knees. Sherri insisted this behavior was a regular occurrence.

The DPW referred both Sherri and Christopher to counseling. Sherri told the therapist that Christopher set fires, was prone to tantrums and self-abuse, and that he...