Russell v. Allen County Department of Public Welfare

490 N.E.2d 1119, 1985 Ind. App. LEXIS 3125
CourtIndiana Court of Appeals
DecidedDecember 11, 1985
DocketNo. 3-385A68
StatusPublished
Cited by4 cases

This text of 490 N.E.2d 1119 (Russell v. Allen County Department of Public Welfare) 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
Russell v. Allen County Department of Public Welfare, 490 N.E.2d 1119, 1985 Ind. App. LEXIS 3125 (Ind. Ct. App. 1985).

Opinion

HOFFMAN, Judge.

Patricia Russell (Russell) appeals the judgment of the Allen County Superior Court which terminated her parental rights to her four children: MH., D.R., J.R. and FR. As stated in appellant's brief, three issues are presented on appeal:

"A) [whether the court erred in admitting photographic evidence of conditions in Parent's home as they existed on December 22, 1981, which evidence was utilized as a basis for terminating parental rights{;]
B) [whether the reasons for removal of each child from the Parent should be considered separately in termination proceedings([;] [and]
C) [whether there was clear and convincing evidence that there is a reasonable probability that the conditions that resulted in the children's removal would not be remedied."

[1120]*1120The facts as established at the termination hearing indicate that on December 22, 1981 the Allen County Department of Public Welfare (DPW) visited the Russell residence pursuant to a complaint received by that agency. Upon seeing the condition of the residence, Russell was placed under arrest for possible child neglect. Photographs of the residence taken by Public Health employees revealed extremely unhealthy and unsanitary conditions. The three children living in the home, MH., D.R. and J.R., were removed from the home and placed in foster care.1

On January 18, 1982 the three children were declared Children in Need of Services (CHINS) pursuant to a petition filed by DPW. The parents, Patricia Russell, the natural mother of all the children, and Fred Russell, the natural father of D.R. and J.R. and the stepfather of M.H., entered into a Parent Participation Plan in March 1982 at a dispositional hearing. The plan stipulated the things required of the Russells in order to have the children returned. The requirements included insuring sanitary and healthy living conditions; proper feeding, clothing and medical care; acceptance of homemaker services and cooperation with the DPW caseworker. The children were ordered placed in foster care.

In July 1982 the children were returned to their parents by DPW. Testimony indicated this change was made because Russell had moved into an apartment and the home was no longer a health hazard; Russell was no longer living with her husband and homemaker services were being provided. The return of the children was without the authorization of the court and did not entail a court order nor a change of custody.

In October 1982 M.H. was again removed from the home due to alleged sexual abuse by her stepfather. Fred Russell was arrested and subsequently sentenced to eight years imprisonment. MH. was placed in foster care again. A fourth child, FR., had been born in September 1982 and he and D.R. and J.R. remained with Russell. As a result of these events, a modification hearing was held resulting in a new Parent Participation Plan which pertained only to Patricia Russell. This plan contained the requirements of the previous plan plus it required Russell to protect and supervise the children; avoid leaving them unattended; cooperate with staff working with D.R.;2 complete parenting classes; be psychologically evaluated and follow counseling recommendations; properly dress children; and maintain visitation with MH.

In September 1983 DPW filed a petition to allow M.H. to return to her mother's care, and a new participation plan covering the previously stipulated areas of concern and requiring continuation of counseling for M.H. if she returned home. However, in October 1983 the Guardian Ad Litem filed a petition to have D.R. and J.R. removed from the home again. The two girls were removed, leaving only E.R. with Russell. The reasons for the removal of D.R. and J.R. were non-compliance with the December 1982 plan; non-education of the children to the point they could not speak intelligibly; attendance at school by D.R. in dirty, ill-fitting, inappropriate clothing with improper personal hygiene and lack of proper amounts of sleep; signs of physical abuse to D.R. by way of bruises and hand-prints and bite marks; lack of cooperation with D.R.'s teachers; and endangerment of the physical and mental condition of the children.

DPW then filed a petition to have FR. declared a CHINS alleging failure by Russell to maintain adequate housekeeping, provide proper hygiene or protect the child from harm.3 At a December 21, 1983 hear[1121]*1121ing, Russell admitted the allegation of neglect; FR. was declared a CHINS and foster care was ordered for FR. and ordered continued for the other three children. The new plan entered into at this time covered the items addressed in the previous plans but also set up a specific schedule for housekeeping and laundry and required Russell to receive services as to budgeting money, developing sleep schedules, giving daily baths and preparing nutritional meals.

In March 1984, Russell moved from the apartment into the home of a friend. In June the friend asked Russell to leave due to her lack of cleanliness about herself and the home. She then moved to the Inner City Mission, a home for people who have no home and was a resident there at the time of the termination hearing.

In reviewing the trial court's decision, the appellate court will not reweigh the evidence nor judge the credibility of wit nesses. We consider the evidence most favorable to the judgment, keeping in mind the fact that the DPW must present clear and convincing evidence to support every element of IND.CODE § 31-6-5-4.4 which provides the statutory criteria for termination of parental rights. JKC v. Fountain County Dept. of Pub. Wel. (1984), Ind.App., 470 N.E.2d 88, 91.

Appellant alleges error by the trial court due to the admission into evidence of the photographs of the residence on December 22, 1981. Appellant urges that the conditions depicted in the photographs were remedied by July 1982 as evidenced by the return of the children to her care. Therefore any involvement by DPW after July 1982 was predicated on new conditions which render the December 1981 conditions irrelevant.

Since DPW must show by clear and convincing evidence that the conditions which resulted in the removal would not have been remedied, JK.C. v. Fountain County Dept. of Pub. Wel., supra, the reason for the removal is a material fact. Evidence is relevant which has a logical tendency to prove that fact. McClamroch v. McClamroch (1985), Ind.App., 476 N.E.2d 514, trans. denied. The pictures were therefore relevant to prove the condition of the residence in December 1981, and contrary to appellant's argument, the December 1981 removal is the action which culminated in the termination hearing. Therefore, evidence of the conditions which led to that removal was admissible.

The effect of the return of the children to the home during an ongoing involvement was addressed in Matter of Miedl (1981), Ind., 425 N.E.2d 137. In Miedl each of two children had been removed from the care of the parent shortly after birth due to the mother's psychological problems. Each child had been returned to the mother's care at least once before termination proceedings were instituted.

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Related

Matter of JO
556 N.E.2d 948 (Indiana Court of Appeals, 1990)
In re the Termination of the Parent-Child Relationship of J.O
556 N.E.2d 948 (Indiana Court of Appeals, 1990)
Matter of DT
547 N.E.2d 278 (Indiana Court of Appeals, 1989)
Bickel v. St. Joseph County Department of Public Welfare
547 N.E.2d 278 (Indiana Court of Appeals, 1989)

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Bluebook (online)
490 N.E.2d 1119, 1985 Ind. App. LEXIS 3125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-allen-county-department-of-public-welfare-indctapp-1985.