Perkins v. Allen County Department of Public Welfare

352 N.E.2d 502, 170 Ind. App. 171, 1976 Ind. App. LEXIS 986

• Court: Indiana Court of Appeals
• Decided: July 29, 1976
• Docket: 3-474A60
• Status: Published

Opinions

Hoffman, J.

— Appellants Marvin Perkins, Sr. and Mary Perkins appeal from that part of an order of the Allen Superior Court, Juvenile Division, which made two of their six children, Marvin, Jr. and Joseph, “wards of the Department of Public Welfare for all purposes including adoption.” This proceeding was commenced on July 27, 1973, by the Allen County Department of Public Welfare (Welfare Department) which filed an amended petition requesting that Marvin, Jr. and Joseph Perkins and the remaining Perkins children be made wards of the Welfare Department for “all purposes including adoption.”

Such petition resulted from a long history of involvement of the Welfare Department with the Perkins’ family. The record reveals that such history began on April 13, 1966, when the Welfare Department filed a petition to have all the children except Joseph, who was not yet born, declared to be dependent and neglected children. The juvenile court entered such a finding on April 15,1966, and the children were ordered placed in the Allen County Children’s Home (Children’s Home) until further order of the court. These children were released to the custody of their parents on June 8, 1966. On June 15, 1967, the juvenile court found that the parents were unable to provide adequate care for the six children, and ordered Marvin, Jr. and two of his siblings placed in the Children’s Home. The court further ordered appellant Marvin Perkins, Sr. to pay $35 per week for support of these children. On December 21, 1967, the Welfare Department filed a supplemental petition seeking to have Joseph made a ward. On the following day Joseph and two of his brothers were ordered detained at the Children’s Home. On October 4, 1968, Marvin Perkins, Sr. was found to be in contempt of the trial court by reason of his nonpayment of the aforementioned support at a time when he was fully able to do so. However, his commitment to jail was stayed to provide him an opportunity to purge himself of such contempt. On March 14, 1969, the court found all six children to be dependent children as defined by statute and made them temporary wards of the Welfare Department. On August 15, 1969, a bench warrant was issued for Marvin Perkins, Sr. for failure to purge himself of his contempt of court by paying the support ordered by the trial court. Marvin, Sr. was incarcerated and was subsequently released from custody on November 12, 1969. On December 4, 1970, two children other than Joseph and Marvin, Jr. were returned to the Perkins’ home, and Marvin, Sr. was ordered to pay $35 per week for support of the remaining four children. On January 29, 1971, the father had paid only $15 in support and on April 2, 1971, it was found by the trial court that the father was unemployed and not paying support.

During this period of time Mrs. Perkins was hospitalized for psychiatric care, and “a good deal of turmoil” existed in the Perkins’ home. Further, their small home was maintained in an unclean and disarrayed condition, with “very dilapidated” furniture and “holes in the walls.”

. In the months immediately preceding the filing of the petition which initiated this action, the conditions in the Perkins’ home improved to some degree, and the Perkins became able to adequately care for the two children who remained in the home. However, Mrs. Perkins suffered recurrences of her mental disorder, and Mr. Perkins was unable to work due to an injury. It was the opinion of the Welfare Department caseworker that due to these circumstances the Perkins “can care for two children, but we just don’t feel that they will ever be able to care for six children at a time.”

As a result of this situation, the Welfare Department filed the petition here at issue and, as stated hereinabove, the trial court granted such petition as to Marvin, Jr. and Joseph, making them “wards of the Department of Public Welfare for all purposes including adoption.”

On appeal, the Perkins raise several issues regarding the propriety of this disposition by the trial court. The first such issue which they raise is whether the trial court as a juvenile court had jurisdiction to order the termination of their par-rental rights. The exact position taken by the appellants in this regard is that because the statute delineating the disposi-tional alternatives of the juvenile courts contains no express grant of an authority to terminate parental rights, no such authority existed in the trial court.

An Indiana juvenile court clearly has jurisdiction to determine whether a child subject to its jurisdiction is dependent or neglected when a petition is before it alleging such conditions. See, IC 1971, 31-5-7-7 (Burns Code Ed.). However, it has no jurisdiction over a petition seeking solely to terminate parental rights. IC 1971, 31-5-7-7, supra; IC 1971, 31-3-1-7 (Burns Supp. 1975). The issue thus presented by the case at bar is whether a petition alleging dependency or neglect and seeking wardship for all purposes including adoption authorizes a juvenile court to terminate parental rights as a dispositional alternative.

IC 1971, 31-5-7-15 (Burns Supp. 1975), provides, in pertinent part, as follows:

“If the court shall find that the child comes within the provisions of this act [31-5-7-1 — 31-5-7-25], it may by order duly entered, proceed as follows:

“(1) Place the child on probation or under supervision in his own home or in the custody of a relative or other fit person, upon such terms as the court may determine;

“ (2) Commit the child to any suitable public institution or agency, which shall include, but is not limited to, the state institutions for the feeble-minded, epileptic, insane, or any other hospital or institution for the mentally ill, or commit the child to a suitable private institution or agency incorporated or organized under the laws of the state, and authorized to care for children or to place them in suitable approved homes;

“ (3) The court may make such child a ward of the court, a ward of the department of public welfare of the county, or a ward of any licensed child placing agency in the state willing to receive such wardship;

“ (4) May take cause under advisement or postpone findings and judgment for a period not to exceed two [2] years unless sooner requested by the party proceeded against in which event not to exceed ninety [90] days.

“(5) Make such further disposition as may be deemed to be to the best interests of the child, except as herein otherwise provided.”

IC 1971, 31-5-7-15, supra, was recently considered by this court in In Re Collar et al. v. Dept. of Welfare (1973), 155 , 294 N.E.2d 179 (transfer denied), a case similar to the case at bar. In In Re Collar the County Welfare Department had filed a petition to have a child made a permanent ward for adoption purposes and, after a hearing on such petition, the trial court so ordered. The appellant asserted in this court that insufficient evidence was introduced in the trial court to support such a disposition of the child. In passing upon such contention, this court examined the provisions of IC 1971, 31-5-7-15 (5), supra, and stated:

“In the instant case the jurisdiction of the child was obtained by the trial court by the petition of the Welfare Department seeking to have the child declared dependent and neglected. Section 9-3207, supra. [IC 1971, 31-5-7-7 (Burns Code Ed.)]. The trial court found the child to be a dependent child. At that time the parental rights of the natural mother to control and have custody of the child were terminated by the order of temporary wardship. Having once found the child to be a ‘dependent child’ the trial court was guided by the best interests of the child. Section 9-3215, supra. [IC 1971, 31-5-7-15 (Burns Supp. 1975)].” Ibid, at 671 of 155 Ind. App., at 182 of 294 N.E.2d.

The appellants have not attempted to distinguish In Re Collar on this point. The foregoing rationale from such case and its implicit approval of the procedure utilized by the trial court in the case at bar is reaffirmed. Such holdings are dis-positive of this issue.

Appellants next contend that the proceeding in the trial court was constitutionally defective in that the petition here at issue failed to adequately impart notice that the proceeding in the trial court concerned the termination of their parental rights. However, it must be remembered that the petition here at issue alleged that the children were dependent and neglected and sought an order making them “wards of the County Department of Public Welfare for all purposes including adoption.” Such petition further alleged that the best interests of the children would be served if they “were removed from the care, custody and control of their said parents so that said children could be placed in suitable homes for adoption.”

The issue, then, is whether such statements constituted notice that the petition sought the termination of the Perkins’ parental rights. The Supreme Court of Indiana has said that “[n]otice, giving a defendant [an] opportunity to be informed regarding the nature of the action and reasonable opportunity to make a defense, is an essential element of due process.”¹ State ex rel. Red Dragon Diner v. Superior Ct. (1959), 239 Ind. 384, at 385, 158 N.E.2d at 164, at 165. See also: Mullane v. Central Hanover B. & T. Co. (1950), 339 U.S. 306, at 314, 70 S.Ct. 652, 94 L.Ed. 865, at 873, wherein the Supreme Court of the United States held that “notice must be of such nature as reasonably to convey the required information . . . and it must afford a reasonable time for those interested to make their appearance.”

In the case at bar, the petition informed appellants that the County Welfare Department was seeking wardship for “all purposes including adoption.” Such language clearly and succinctly reveals that the Welfare Department was seeking authority to place the children up for adoption. Furthermore, it was clearly revealed during the examination of the second witness at trial that such a disposition was sought, and the appellants made no objection and failed to move for a continuance. It must be concluded that appellants have not shown any constitutional infirmity in the notice which they received of the nature of this proceeding.

Appellants next contend that they had inadequate notice of the nature of the proceeding in the trial court because the petition sought a wardship “for all purposes including adoption” or “permanent wardship” rather than a termination of parental rights as found by the trial court. It is readily apparent that appellants’ argument on this point is meritorious only if the effects of the termination of their parental rights are different from the effects of a wardship for all purposes including adoption or permanent wardship as requested by the petition. In this regard appellants contend that termination is immediate and irrevocable while a wardship would still allow an opportunity to resist an adoption.

However, as stated hereinabove, the language of the petition clearly indicates, an intent to permanently deprive the parents of custody and control of these children. Moreover, a petition seeking the wardship of a child for adoption purposes is, in effect, a petition to eliminate any consent to an adoption by the parents which may ordinarily be required, and to place the Welfare Department in an in loco parentis status as to the child. Therefore, since the petition in the case at bar sought to permanently deprive the parents of the custody of these children and requested that the Welfare Department be made guardian of the children for adoption purposes, it must be concluded that appellants had notice that the petition sought the termination of their parental rights and that if such petition were granted their consent would not be needed in an adoption proceeding.

Appellants next contend that the trial court erred in holding that sufficient evidence was introduced to warrant a termination of their parental rights. Specifically, the appellants contend that the trial court erred by applying incorrect standards for the termination of their parental rights, and that there is no evidence supportive of the trial court’s holding that Joseph and Marvin, Jr. were dependent children as defined in IC 1971, 31-5-7-5 (Burns Code Ed.).

IC 1971, 31-3-1-7, supra, which prescribes the procedures and conditions for both the voluntary and involuntary termination of parental rights in Indiana provides,² in pertinent part:

“(c) All rights of a parent with reference to a child, including right to control or consent to an adoption, may be terminated by order of a court having jurisdiction to terminate parental rights on any ground for termination specified in that law. * * * When the court terminates parental rights under this chapter [81-3-1-1 — 31-3-1-12] its paramount concern shall be for the health, welfare and future of the child whose adoption is immediately contemplated or who in the future will hopefully be adopted. The purpose of this chapter in regard to the termination of parental rights is to give to unfortunate children who have been bereft of love and. parental care the benefits of a home, and of such parental care, and the law should receive a liberal construction to effect this purpose.

“ (f) *

“(1) If the court finds grounds for the termination of the parent-child relationship it shall terminate such relationship. * * *” (Emphasis added.)

In the case at bar, the jurisdiction of the trial court to terminate the parental rights of the appellants arose from a provision of our juvenile laws. Because IC 1971, 31-3-1-7 (c)., supra, requires a trial court to involuntarily terminate parental rights only upon the grounds specified in the statute conferring jurisdiction upon such court to terminate such fights, it is necessary to consider the grounds required for such disposition under IC 1971, 31-5-7-15, supra, the juvenile dispositional statute relied upon by the trial court.

Such statute permits a juvenile court to make any “disposition as may be deemed to be the best interests of the child,” except as otherwise provided therein. We have heretofore held that such language permits a juvenile court to terminate parental rights.

However, such a disposition should not be made lightly. The possibility of the termination of parental rights injects an additional consideration into a juvenile court proceeding. The juvenile court’s primary concern in ordering a disposition of a dependent or neglected child is in securing for the child “such care, guidance and control, * * * as will serve the child’s welfare and best interests of the state.” IC 1971, 31-5-7-1 (Burns Code Ed.). However, when the court also contemplates the termination of parental rights, it must also consider the parents’ interest in the custody of the child. The nature of this interest was described by this court in In Re Adoption of Bryant v. Kurtz, et al. (1963), 134 Ind. App. 480, at 486-87,189 N.E.2d 593, at 597, as follows:

“However, since the relationship between parent and child is a bundle of human rights of such fundamental importance, it has generally been held that adoption statutes being in derogation of the common law should be strictly construed in favor of a worthy parent and the preservation of such relationship. Therefore the rules in the above paragraph need be tempered by the rule that neither should the statute be so liberally construed that it would destroy safeguards erected for preservation of family relationships.

“On the question of parent and child relationship we quote with appropriate pertinency from Duckworth v. Duckworth (1932), 203 Ind. 276, [at 281-82], 179 N.E. 773, [at 774-75] :

‘ “Of the many ties that bind humanity, that which unites the parent and the child is the earliest and the most hallowed . . . and in all civilized countries it is regarded as sacred.” [Orr v. State (1919), 70 Ind. App. 242, at 254, 123 N.E. 470.] Therefore, “parents have the natural right to the custody of their children,” and “where one parent is dead, the surviving parent, if fit, has the right to the custody.” ’ [46 C. J., Parent and Child, § 9, at 1223, 1224.] ” (Footnotes, omitted.)

The United States Supreme Court has similarly considered the importance of this relationship, and in Stanley v. Illinois (1972), 405 U.S. 645, at 651, 92 S.Ct. 1208, at 1212-13, 31 L.E.2d 551, stated:

“The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed ‘essential,’ Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923), ‘basic civil rights of man,’ Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942), and ‘[r]ights far more precious . . . than property rights,’ May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1953). ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment. Meyer v. Nebraska, supra, 262 U.S. at 399, 43 S.Ct. at 626, the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, 316 U.S. at 541, 62 S.Ct., at 1113, and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496, 85 S.Ct. 1678, 14 L.E.2d510 (1965) (Goldberg, J., concurring).”

In addition, proceedings for the termination of parental rights have more serious consequences than those involving a change of custody of a child. If a child is found to be dependent or neglected within the meaning of the appropriate juvenile statutes and custody is awarded to an individual or entity other than the parent (s), such deprivation of parental custody and control may temporarily alter the personal relationships between child and parent, but it does not affect any of the legal rights and responsibilities between the parent and child. A termination of parental rights, however, “divest[s] the parent and the child of all legal rights, privileges, duties and obligations, including rights of inheritance, with respect to each other.” IC 1971, 31-3-1-7 (g), supra.

However, because IC 1971, 31-5-7-15, supra, requires that any disposition thereunder be in the best interests of the child, the foregoing parental interests must be subordinated to the child’s interest in determining an appropriate disposition of any petition to terminate such parental rights. This view is in conformity with the general rules applicable in child custody proceedings. See, Sanders v. Sanders (1974), 160 Ind. App. 174, 310 N.E.2d 905.

It is in this context that this court must determine the standards to be employed by a juvenile court in determining whether the best interests of a child would be served by a termination of his parents’ rights without their consent. It is apparent from the foregoing discussion that such standards should recognize the societal interest in maintaining and protecting the rights and interests of the parent in the child, and those of the child in the parent. Further, such natural rights and interests should not be terminated, absent parental acts or omissions sufficiently harmful to the child that it would be more in the best interests of the child to terminate the rights, of his parent (s) than to allow such relationship to continue. It is our view that these goals are best served by a requirement that a termination of parental rights following a finding of dependency or neglect by a juvenile court be made only where the evidence discloses a protracted history of dependency or neglect by the parent (s) as defined by statute, a substantial probability of such deprivation of the child in the future, and that it is not reasonably probable that it will serve the future welfare of the child to continue such child’s legal relationship with the parent (s).

This procedure provides a number of safeguards for proceedings contemplating the termination of parental rights. First, it requires the court to find not only that the child is a dependent or neglected child, but also requires an examination of the past history of the parent-child relationship to determine whether such dependency or neglect has been habitual or long-standing. Further, in recognition of the permanent effect of termination, it requires the court to' evaluate the parents’ habitual patterns of conduct to determine whether there is a substantial probability of a future deprivation of the child. Finally, it recognizes the effect of termination on the rights of the child by requiring that evidence be presented showing that it is not foreseeable that the child’s welfare would be served by a- continuation of the parent-child relationship. Thus, such a procedure affords adequate consideration of the interests of both the parents and the child, while assuring that the court acts in the best interests of the child as required by statute.

A review of the evidence most favorable to' the appellee as set forth hereinabove establishes that Marvin, Jr. and Joseph were dependent children as defined by statute from March 14, 1969, until the time of trial. During such period Marvin, Sr. failed to provide for their support even though he had the financial ability to do so by reason of his monthly Army retirement pay and his earnings or workmen’s compensation payments, and was under a court order to do so. The record further discloses that the Perkins had failed to adequately provide for and care for their children since 1966. Additionally, the record establishes that the Perkins were unable or unwilling to care for Marvin, Jr. and Joseph as late as approximately one month prior to trial. It also appears that the Perkins visited Marvin, Jr. and Joseph only infrequently in their foster homes, and had not seen them for some time prior to trial.

Such evidence is sufficient to allow the trial court to find that Marvin, Jr. and Joseph were neglected children as defined by statute in that they were without proper parental care within the meaning of IC 1971, 31-5-7-6(1) (Burns Code Ed.). Such evidence is also sufficient to support inferences by the trial court that the Perkins’ children were dependent up to the time of trial through a willful failure of their parents to support them, that such deprivation would likely continue in the future due to its long-standing existence, and that it was not reasonably probable that it would serve the best interests of the children to continue their legal relationship with their parents. A protracted history of such non-support by the Perkins was established by direct evidence; Such evidence and inferences comply with the criteria enunciated hereinabove and establish that the Perkins willfully allowed Marvin, Jr. and Joseph to become and to continue being dependent and neglected children as defined in IC 1971, 31-5-7-5, supra, and IC 1971, 31-5-7-6, supra. It must be concluded that the trial court correctly held that sufficient evidence was presented to support a termination of the Perkins’ parental rights in Marvin, Jr. and Joseph.

The appellants have also made two additional assertions of constitutional error in their brief. Such contentions were not included in the motion to correct errors filed in this case, and must be deemed to be waived on appeal. See, Ind. Rules of Procedure, Trial Rule 59 (G). We note in passing, however, that the appellants are incorrect, insofar as they attempt to predicate a constitutional infirmity in the procedure utilized by the trial court upon the “irrebuttable presumption” doctrine stated in Stanley v. Illinois, supra (1972), 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551. As stated by this court in In Re Collar et al. v. Dept. of Welfare, supra, at 672 of 155 Ind. App., at 182 of 294 N.E.2d:

“Once the child is found to be a ‘dependent child’, and the parental relationship is severed, the change of the state of mind, habits, and circumstances of the parent essential to provide a fit home for the child is a matter solely up to the parent. The burden of going forward with the evidence should be, and is, upon the parent to show such a change of conditions and reformation, that the best interests of the child would be served by returning the child to the parent.” (Emphasis added.)

Unlike the statutory presumption overturned in Stanley v. Illinois, supra, the procedure approved herein contemplates a full hearing of the parents by the trial court either at the time a child is adjudicated to be “dependent” or at the time at which a termination of their parental rights is under consideration. If the child has been previously adjudicated to be “dependent”, the burden of going forward with the evidence shifts to the parents in the termination proceeding as stated in In Re Collar et al. v. Dept. of Welfare, supra. In either case, the State has the initial burden of proof, and no “presumption” exists.

Appellants’ final contentions pertain to the findings made by the trial court. The appellants assert that portions of certain of such findings are clearly erroneous, and urge such defects as a ground for a reversal of this cause. However, even assuming, arguendo, that such portions of the findings made by the trial court are erroneous, the decision of the trial court is supported by the remainder of the findings made, and the portions challenged by appellants may be treated as sur-plusage. Appellants have shown no prejudice warranting a reversal of this cause. Reg. & Mgt. Corp. v. City of Hammond (1972), 151 Ind. App. 471, 280 N.E.2d 327.

No reversible error having been demonstrated by appellants, the judgment of the trial court must be affirmed.

Affirmed.

Staton, P.J., concurs; Garrard, J., dissents with opinion.

1 . Footnote omitted.

2 . IC 1971, 31-3-1-7 (Burns Supp. 1975), has been amended since the entry of the judgment in the case at bar. However, such amendment had no effect on the language quoted herein.