Waltz v. Daviess County Dept. of Public Welfare
| Decision Date | 09 October 1991 |
| Docket Number | No. 14A05-9101-JV-17,14A05-9101-JV-17 |
| Citation | 579 N.E.2d 138 |
| Parties | In the Matter of the Termination of the Parent-Child Relationship of Ashley Peters and Tonya Renee (Peters) WALTZ, Appellant-Respondent, v. DAVIESS COUNTY DEPARTMENT OF PUBLIC WELFARE, Appellee-Petitioner. |
| Court | Indiana Appellate Court |
Mary B. Goss, Washington, for appellee-petitioner.
E. Brayton Smoot, Washington, for appellant-respondent.
Tonya Renee (Peters) Waltz appeals the termination of her parental rights in her daughter Ashley Peters, arguing the evidence did not clearly and convincingly prove that the conditions resulting in the child's removal would not be remedied. We reverse on that ground, and therefore do not address Peters' second argument of trial court error in admitting the testimony of a psychologist over an objection based on statutory privilege.
Ashley Peters ("Ashley") was born on October 3, 1987, the daughter of Tonya Renee Peters ("Peters") and David O'Brien. On December 28, 1987 a bruised Ashley was examined by a physician who believed her injuries consistent with her parents' explanation that she had fallen from a chair. A much more dire injury befell four-month-old Ashley in early February, 1988. She was admitted to the hospital on February 7, suffering "seizures." A brain scan revealed bilateral subdural hematoma. Three doctors diagnosed "shaken baby syndrome," that is, cerebral hemorrhage and possibly permanent atrophy of brain tissue, resulting from the violent shaking of a child younger than eighteen months. Testimony at the subsequent termination hearings revealed that the degree of force necessary to inflict such an injury indicated intentional causation, that shaking was the most likely cause, that a sudden blunt impact to the skull was a possible cause, and that a fall from a chair was only a remotely possible cause. While Ashley was hospitalized for the seizures, a general examination including X-rays uncovered no additional injuries. Regarding Ashley's head injury, criminal charges were not filed, due to lack of admission or proof.
Daviess County authorities swung into action upon learning of Ashley's trauma. On February 9 the court below entered an emergency detention order in favor of the county Department of Public Welfare ("DPW"). On February 12 the court found probable cause to believe that Ashley was a child in need of services ("CHINS") 1 and accordingly continued the emergency detention. On August 29, after the parties agreed that Ashley was a CHINS, the court ordered DPW to prepare a predispositional report. That report--recommending continued wardship--was adopted by the court as its dispositional order on September 27, 1988. The order continued in force after hearings on January 4, 1989, June 20, 1989 and March 21, 1990. Next, on April 3, 1990 DPW filed for termination of Peters' parental rights. The case was tried to the bench on August 15 and 17, 1990. On September 28, 1990 the court entered a judgment terminating Peters' parental rights.
DPW also sought to terminate O'Brien's parental rights. He and Peters had separated, and he consented to termination, so the case proceeded against Peters only. We further note that in April, 1989 Peters married Darrell Waltz. A son, Curtis, was born to them in August, 1989. DPW has not initiated any CHINS proceedings in regard to Curtis.
"It is the policy of this state ... to strengthen family life by assisting parents to fulfill their parental obligations ... [and] to remove children from their families only when it is in the child's best interest or in the best interest of public safety." Ind.Code 31-6-1-1. Our supreme court has explained that termination is the exception rather than the rule, in that "[c]hildren are not taken from ... their parents because there is a better ... place for them [but rather] because ... the custody of their parents is wholly inadequate for their very survival." Matter of Miedl (1981), Ind., 425 N.E.2d 137, 141. The discretion of trial courts in termination proceedings is cabined by I.C. 31-6-5-4(c), the version of which in effect at the time of the trial below required a petition for involuntary termination of parental rights to allege four elements:
(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.
Termination is proper only if all four elements are shown by clear and convincing evidence. B.R.F. v. Allen County Dep't of Pub. Welfare (1991), Ind.App., 570 N.E.2d 1350; I.C. 31-6-7-13(a). This standard of proof follows from the fact that termination severs all of a parent's rights to the child, thereby extinguishing the constitutionally-protected right of the parent to make a home and raise the child, which has been recognized as one of "the basic civil rights of man." Commentary to I.C. 31-6-5-4 (West 1979) at 216-17 (quoting Skinner v. Oklahoma (1942), 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655).
There is no dispute here that Ashley had been removed from Peters for at least six months under a dispositional order, I.C. 31-6-5-4(c)(1), and that there was a satisfactory plan for Ashley's care and treatment, I.C. 31-6-5-4(c)(4). Resolution of this case therefore turns on the two remaining elements of the termination statute, I.C. 31-6-5-4(c)(2) and (3).
Peters contests the trial court's ruling as to I.C. 31-6-5-4(c)(2). On (c)(2), the trial court entered the following conclusion of law:
4. The evidence is clear and convincing that the conditions that resulted in the child's removal will not be remedied. The mother continues to have violent outbursts of temper, while she is on medication for impulse control; the mother fails to explain satisfactorily the circumstances of the harm to Ashley or the seriousness of the harm. The mother understood the services offered [by DPW] and willfully failed to take advantage of the services including homemakers and counseling and visitation.
5. The mother has failed to come to terms with the seriousness of Ashley's injuries and any participation in those injuries. The mother offers no explanation for the child's harm except that the child fell from a chair in December, 1987....
....
9. ... [T]he Court finds a pattern of conduct by the mother that has not changed since September, 1988. Violent outbursts of temper on more than one (1) occasion were observed by a police officer, and at the Welfare Department, and at foster mom's.
The mother offers no acceptable explanation of the child's injuries or mother's role in those injuries. The injury to the child resulted from being severely shaken, not falling from a chair.
The court below, in conclusion 4, focused on the first alternative of I.C. 31-6-5-4(c)(2), that is, the existence of a reasonable probability of no remedy of the conditions that resulted in Ashley's removal. The court did not reach any conclusion as to the second alternative of I.C. 31-6-5-4(c)(2), that is, continuation of the parent-child relationship would pose a threat to the child's well-being. Therefore, we disregard Peters' argument that the court erred in concluding the existence of the second alternative. Instead, we limit our review to Peters' contention the court erred in holding termination was supported by clear and convincing evidence of non-remedy of the conditions resulting in termination. Similarly, DPW's brief is somewhat non-responsive to Peters' argument addressing I.C. 31-6-5-4(c)(2). DPW cast its answer in terms of I.C. 31-6-5-4(c)(3). Nevertheless, we decline to find waiver, because the text of DPW's brief adequately addresses the issue of non-remedy, even if incorrectly captioned.
At the outset, we perceive that this case necessarily incorporates an assumption, or at least, a suspicion, that Peters was the one who shook Ashley. Uncontradicted medical testimony explained that shaken baby syndrome occurs in an instant and is not immediately apparent. Thus, the act could be silently committed by one parent, even in the presence, but not the sight, of the other. Ashley, when shaken, was in the care and custody of her genetic parents, Peters and O'Brien. Since then, Peters and O'Brien have separated, with O'Brien retaining no contact with Ashley, due to voluntary termination of his parental rights. Thus, if O'Brien shook Ashley, then the condition that led to her removal has been remedied, and termination would be improper due to failure of proof of I.C. 31-6-5-4(c)(2)(A). Therefore, Peters is, at a minimum, suspected by DPW of having caused Ashley's injury. Because there is no direct evidence inculpating Peters in the shaking, the suspicion arises by inference from Peters' custody of Ashley at that time and Peters' subsequent refusal to blame O'Brien.
Peters presents a bifurcated argument regarding non-remedy: first, because of the passage of time, it is unlikely that Ashley could again suffer shaken baby syndrome, and therefore the condition that led to her removal has been remedied; and second, DPW failed to clearly and convincingly show "that returning Ashley to [Peters'] custody would return the child to a set of conditions where she would be again physically abused or ... permanently damaged through [Peters'] failure to properly provide for Ashley's needs." Appellant's Brief at 26. To consider that dichotomy, we note this case stems from a discrete instance of misconduct, rather than from any pattern thereof. DPW's wardship began after someone shook Ashley. Yet, a comprehensive examination including X-rays indicated no other abuse, and Ashley's earlier injuries were...
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