Egly v. Blackford County Department of Public Welfare

575 N.E.2d 312, 1991 Ind. App. LEXIS 1231, 1991 WL 137594

• Court: Indiana Court of Appeals
• Decided: July 23, 1991
• Docket: 05A02-9003-CV-174
• Status: Published

Opinions

BUCHANAN, Judge.

CASE SUMMARY

Petitioners-appellants Walter Egly (Walter) and Diana Egly (Diana) (also collectively referred to as "the Eglys") appeal the termination of their parental rights over their two children, Walter Lee Egly, Jr. (Walter Jr.) and Matthew Egly (Matthew), claiming that the evidence was insufficient to support the judgment and that the Blackford County Department of Public Welfare (Department) should be estopped from bringing an action to terminate parental rights before the expiration of Eglys' contract for services with the Department.

We reverse.

FACTS

The facts which support the court's judgment show that in November of 1987, complaints regarding the living conditions at the Eglys' home were made to the Department. Linda Miller (Miller) a case worker with the Department, visited the Eglys' trailer home and discovered holes in the floor of the trailer, no water, that the furnace did not work properly, and a kerosene heater spewing fumes throughout the house.

As a result of this investigation, Walter Jr. and Matthew were temporarily removed from the home and made wards of the State.¹ Deborah Slater (Slater), a Department caseworker, began to work with Walter and Diana to help them establish a better home environment for the children. Slater counseled the Eglys regarding budgeting, homemaking, supervised visitation and provided transportation for the Eglys to and from the Grant County Developmental Center so they could attend parenting classes. The Eglys entered into a contract for services on December 15, 1987, and before Christmas of 1987, Walter Jr. and Matthew, were returned to the Egly home.

During their removal from the home and in subsequent follow-up visits, Department workers observed problems with the Egly children. Walter Jr., who was nearly four years old in December of 1987, had not been toilet-trained. Matthew, who was about nine months old at the time, was usually confined to a crib during Department visits and had not sufficiently developed his motor skills. Counselors also concluded that both children were socially deprived. Walter Jr., who was mildly retarded, had difficulty learning and had a speech problem in which he repeated everything he heard.

The two children were again temporarily removed from the home and placed in foster care. While in foster care, Walter, Jr. became toilet-trained in two weeks. Wal ter Jr.'s communication problems improved and both became, according to Department workers, more socially active.

Although the Department continued to work with the Eglys to improve their parenting skills, caseworkers eventually concluded that Diana, who had an IQ of fifty-seven, and Walter, who had an IQ of seventy-three, did not have the mental capability to comprehend and retain the information given them. Kenneth Joy, a psychologist who examined Walter and Diana, determined that Walter lacked the desire to be a more successful parent and was more motivated by economic concerns. Joy diagnosed Walter as having a personality disorder which made him resistant to change, which problem could only be overcome through long-term in-patient treatment.

The Eglys entered into a second contract for services with the Department on June 29, 1988, and another one on February 18, 1989. Two months into the third and final contract, the Department petitioned the Blackford Circuit Court to terminate the Eglys' parental rights over Walter Jr., Matthew, and Joseph Egly.² Following a trial held on October 26 and 27, 1989, the court granted the Department's petition.

ISSUE

The Eglys now appeal and raise four issues, which we consolidate into one:

Whether there was clear and convincing evidence to support the termination of the Eglys' parental rights over their children?

DECISION

PARTIES' CONTENTIONS-The Eglys argue that there is not clear and convincing evidence to support the termination of their parental rights and claim that the court's order constitutes an unwarranted interference into the family. The Department responds that there was sufficient evidence introduced showing the Eglys were unfit parents incapable of learning parental skills and failed to provide a proper social and educational environment for their children. As a result, the Department claims, the Egly children were socially deprived and would be better off living in a foster or adoptive home.

CONCLUSION-The evidence is not sufficiently clear and convincing to support termination of parental rights.

The time-honored right of parents to establish a home and raise their children is protected by the Fourteenth Amendment to the United States Constitution. Pierce v. Society of Sisters (1925), 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070; Meyer v. Nebraska (1923), 262 U.S. 390, 48 S.Ct. 625, 67 L.Ed. 1042. The right to raise one's children has been recognized to be one of "the basic civil rights of man." Skinner v. Oklahoma (1942), 816 U.S. 535, 541, 62 S.Ct. 1110, 1118, 86 L.Ed. 1655.

However, there are circumstances in which the constitutional right to raise one's children must be subordinated to the need to protect the health, welfare and safety of the children. In establishing such circumstances, the legislature has provided that four separate requirements must be proven by clear and convincing evidence:

"(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 (1990).

In Matter of Miedl (1981), Ind., 425 N.E.2d 137 our supreme court clarified how the "best interest" requirement is to be interpreted and applied in a parental termination proceeding:

"Children are not taken from the custody of their parents because there is a better or the 'best' place for them. They are taken because the present place in the custody of their parents is wholly inadequate for their very survival. Before a court can do anything with regard to the future of the children, it must first be found that the parental tie must be severed and a different direction found that gives some chance to the child or children."

Id. at 141. (emphasis supplied); See also Matter of J.K.C. (1984), Ind.App., 470 N.E.2d 88; Matter of J.H (1984), Ind.App., 468 N.E.2d 542, trons denied.

The parents in this case, Walter and Diana, are mentally retarded. Record at 209-10. While mental retardation cannot, in and of itself, be a ground for terminating parental rights, it may be considered as a factor if there are other reasons which would support the termination decision. Dull v. Delaware County Dep't of Public Welfare (1988), Ind.App., 521 N.E.2d 972.

The "other reasons" testified to by the Department's witnesses included a number of observations about the effect that the Eglys' retardation had on the social development of their children. Slater testified that the "processing skills" of Walter, Jr. were inadequate and that he couldn't function as a "normal" kindergartener. Record at 154. Rhonda Bright (Bright), a pre-school instructor, testified that Walter, Jr. didn't "play appropriately" and had to be taught how to "commune with toys." Record at 158. She also observed that Walter, Jr. "couldn't process information appropriately" and "didn't relate well ... when he was placed in a new situation ... [because] he was really awkward and very shy ..." Record at 159. Bright also offered the opinion that Walter Jr. was "socially deprived." Record at 157-58. Lois Bartley, an instructor for the parenting classes the Eglys attended, concluded that there was not a "bonding relationship" between the Eglys and Walter, Jr. Record at 182. Joy, who met the children during a brief visit to the home, concluded that they had "developmental deficits." Record at 214.

While the specific facts relied upon for these conclusions are not necessarily apparent from the record, nonetheless, the conclusions are, even if accurate, not of a serious enough nature to warrant termination of the Eglys' parental rights over their children, rights which are fundamental in nature and cloaked with constitutional protection. See Pierce, supra; Meyer, supra; Skinner, supra.

The Department offers additional evidence such as the fact that the Eglys had difficulty toilet-training Walter, Jr., record at 65-66, 116, 155, who was nearly four years at the time and himself slightly mentally retarded. The Department also points to testimony that Walter, Jr. had a speech problem, record at 131, that Matthew was not removed from the erib often enough by the Eglys, record at 120-21, 218, and that the Eglys' trailer home was in bad shape and in need of repairs. Record at 47, 116.

Although these allegations are more substantive in nature, we observe that the Eglys were able to resolve these problems with the assistance of Department workers, family and friends. Record at 58, 123, 131. We cannot conclude that the problems were so serious in nature as to justify the extraordinary remedy of removing the Egly children based on speculation that these difficulties portend future child care problems that could threaten the very survival of the Egly children. See Miedl, supra; See also J.K.C., supra; J.H., supra.

Department caseworkers and counselors were united in their belief that adoption or a foster home would be a better social and educational environment for the children than that provided by Walter and Diana, who because of their "mental and social deficiencies," could not provide an enriching family life for their children. Record at 87; See also record at 79, 127-28. While this may be true, parental rights may not be terminated on the grounds that a better family environment exists for the children. Miedl, supra; J.H., supra. Parental rights are only to be severed when there is clear and convincing proof that "the custody of their parents is wholly inadequate for [the children's] very survival." Miedl, supra at 141; See also J.H., supra.

In Dull, a case that involved a similar factual situation to this case, ie. retarded parents, children who were determined to have "developmental delays" because of their family environment, etc., we concluded that this clear and convincing standard had been met. In Dull, one of the children, an eight year old boy, was determined to be emotionally disturbed. He masturbated excessively, chewed holes in linens, tore up furniture, and ate profusely. Dull, supra. Department caseworkers concluded that the child was mentally disturbed, needed constant attention, supervision, and a very structured environment which the parents could not provide. Id. at 975. These facts show that the parent's continued custody would threaten the survival of the child and therefore met the Mied! standard.

In this case, the Department introduced no evidence that the survival of the Egly children was threatened by the continuance of the parental relationship.³ Rather the evidence only shows that that the Eiglys were mentally retarded and had difficulty with certain parental skills and that the Department thought the children would be better off in an adoptive or foster home. That is not a sufficient reason to terminate parental rights. See Miedl, supra.

We must conclude that the court erred in terminating the Eglys' parental rights over their children, Walter, Jr. and Matthew. See Miedl, supra; J.H., supra.

Judgment reversed.

SULLIVAN, J., concurs with opinion. BAKER, J., dissents with opinion.

1 . The Eglys seem to complain that this temporary removal was done without due process. However, as the issue at trial and on appeal concerns the permanent termination of the Eg-lys' parental rights, we will confine our discussion to that issue.

2 . The Eglys have not appealed the termination of parental rights to Joseph who was a product of a previous marriage between Walter and his first wife, and who was living in a foster home at the time of the trial.

3 . We do observe that Joy testified that the Egly children would be "at risk" if placed back in the home. Record at 219. Joy's testimony, however, doesn't reveal how the Eglys' continued custody of their children threatened their survival.