Ferbert v. Marion County Office of Family & Children

743 N.E.2d 766, 2001 Ind. App. LEXIS 193
CourtIndiana Court of Appeals
DecidedFebruary 5, 2001
DocketNo. 49A02-0008-JV-487
StatusPublished
Cited by14 cases

This text of 743 N.E.2d 766 (Ferbert v. Marion County Office of Family & Children) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ferbert v. Marion County Office of Family & Children, 743 N.E.2d 766, 2001 Ind. App. LEXIS 193 (Ind. Ct. App. 2001).

Opinions

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellants-Respondents, Monty Fer-bert (Monty) and Katherine Ferbert (Katherine) (hereinafter referred to collectively as "Ferberts"), appeal the trial court's involuntary termination of their parental relationship with their natural children, T.F. and E.F.

We affirm.

ISSUES1

The Ferberts raise three issues for our review, which we consolidate and restate as follows:

[769]*7691. Whether the Ferberts' due process rights were violated because they were not provided with a case plan concerning their children during the CHINS proceedings, resulting in a deprivation of procedural due process rights in the termination proceedings.

2. Whether there was sufficient evidence to support the involuntary termination of the Ferberts' parental rights under Ind.Code § 81-85-2-4(b)(2).

FACTS AND PROCEDURAL HISTORY

Katherine and Monty Ferbert are the biological parents of E.F., born March 19, 1997, and T.F., born January 31, 1994. On March 19, 1997, the Ferberts came to the attention of the Marion County Office of Family and Children (MCOFC) when Monty broke a sleep apnea monitor and called the police because E.F. was having trouble breathing. Neglect was substantiated at this time, however, the children were allowed to remain with the Ferberts, and they entered into a Services Referral Agreement with the MCOFC.

On October 4, 1997, the children were removed from the Ferberts' home because Monty struck E.F. in the mouth with a closed fist, threw the baby down, and struck him again. The Indianapolis Police Department was called, and the police arrived at the home to find the house in total disarray and unclean. Based upon the statement of several witnesses on the scene, Monty was arrested and charged with two counts of battery, three counts of neglect of a dependent,2 and eriminal"reck-lessness. Monty pleaded guilty to battery, and was placed on probation. A eriminal no contact order with his children was a condition of his probation.

As a result of Monty beating E.F., the criminal neglect of the children, the Fer-berts' inability to properly care for the children, the uncleanliness of their home, their failure to meet the requirements of the Services Referral Agreement, and their denial of the beating of EF., a CHINS petition was filed on October 9, 1997. Following a trial on January 20, 1998, T.F. and E.F. were found to be CHINS and the trial court proceeded to disposition on February 24, 1998, placing T.F. and EF. in foster care pursuant to the dispositional decree.

As a result of the CHINS proceedings, the Ferberts were provided a Participation Decree, outlining several services they were required to complete in order to attain reunification with their children. However, several Case Managers assigned to the case testified that Katherine refused to separate from Monty in light of the no contact order, their home remained filthy 'and unsafe for the children, and the Fer-berts failed to complete the services required of them. Therefore, on September 8, 1998, the MCOFC filed a petition to involuntarily terminate the Ferberts' parental rights to their children. Evidence was heard on January 10, 2000, January 27, 2000, and April 7, 2000. On April 24, 2000, the trial court issued its Order Terminating the Parent-Child Relationship. Additional facts will be supplied when nee-essary.

The Ferberts now appeal.

DISCUSSION & DECISION

I. Procedural Due Process

First, the Ferberts argue that the MCOFC failed to provide them with a case plan for their children following the CHINS determination. Specifically, the Ferberts contend that procedural irregularities in the CHINS proceedings deprived them of their procedural due process rights in the termination proceedings.

Indiana Code Chapter 31-34-15 governs case plans in CHINS proceedings. Specifically, Ind.Code § 81-834-15-1 provides [770]*770that "a case plan is required for each child in need of services who is under the supervision of the county ...", while section 31-34-15-2 states that "[tlhe county office of family and children, after negotiating with the child's parent, guardian, or custodian, shall complete a child's case plan not later than sixty (60) days after the date of the child's first placement, or the date of a dispositional decree, whichever comes first." Further, Ind.Code § 31-84-15-3 states that "[a] copy of the completed case plan shall be sent to the child's parent, guardian, or custodian not later than ten (10) days after the plan's completion." Finally, Ind.Code § 31-34-15-4 provides in relevant part that "[the case plan must include a description and discussion of ... [a] permanent plan for the child and an estimated date for achieving the goal of the plan, [and][t]he appropriate placement for the child based on the child's special needs and best interests."

Specifically, the Ferberts claim that the MCOFC's failure to provide them with a case plan following the CHINS determination, to delineate a permanent plan for their children and an estimated date for achieving the goal of the plan, was a procedural irregularity of the CHINS proceedings, nullifying the CHINS determination, and thereby rendering the termination determination void. We disagree.

The involuntary termination of parental rights is an extreme measure that is designed to be used only as a last resort when all other reasonable efforts have failed. In re B.D.J., 728 N.E.2d 195, 199 (Ind.Ct.App.2000). Choices about marriage, family life, and the upbringing of children are among associational rights the United States Supreme Court has ranked as of basic importance in our society and are rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect. M.L.B. v. S.L.J., 519 U.S. 102, 116-17, 117 S.Ct. 555, 564, 136 L.Ed.2d 473 (1996). A case involving the State's authority to permanently sever a parent-child bond demands the close consideration the Supreme Court has long required when a family association so undeniably important is at stake. Id.

The nature of the process due in parental rights termination proceedings turns on a balancing of the "three distinct factors" specified in Mathews v. Eldridge, 424 U.S. 819, 335, 96 S.Ct. 898, 908, 47 LEd.2d 18 (1976); the private interests affected by the proceeding; the risk of error created by the State's chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure. Samtosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 1895, 71 L.Ed.2d 599 (1982). Finally, we must keep in mind the general proposition that if the State imparts a due process right, then it must give that right. City of Mitchell v.

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