Schultz v. Porter County Office of Family & Children

750 N.E.2d 832, 2001 Ind. App. LEXIS 1081

• Court: Indiana Court of Appeals
• Decided: June 20, 2001
• Docket: No. 64A03-0012-JV-429
• Status: Published

Opinions

OPINION

MATHIAS, Judge.

Appellant-Respondent _- Connie Schultz ("Mother") appeals the decision of the trial court terminating her parental rights with regard to KS., age fourteen, D.S., age thirteen, B.G., age ten, and J.K., age four, upon petition by the Porter County Office of Family and Children ("OFC"). Mother presents for review the sole issue of whether there is sufficient evidence to support the termination of her parental rights.¹

We affirm.

Facts and Procedural History

OFC first became involved with Mother and her children on January 28, 1998. OFC caseworker Louella Richey ("Rich-ey") testified that her investigation of Mother's residence at that time revealed that the yard resembled a "junkyard" and the interior of the house was "filthy." R. at 123. The children were also dirty. The youngest child had a black eye, reportedly from playing in the "junk yard." R. at 124. Kerosene and space heaters provided the sole heat in the residence. Richey removed KS., D.S. and B.G. from Mother's residence.² A detention hearing was held on February 1, 1998, and the court ordered the provision of homemaking services to Mother.

With assistance, Mother improved her housekeeping and the children were returned to her during June 1998. Carol Yokshas ("Yokshas"), a provider of homemaker services, documented the condition of the residence from May 1998 through September 1998, and opined that it met "minimum standards" for cleanliness. R. at 188-212. However, Yokshas perceived that Mother and the children had personal hygiene problems. According to the testimony of caseworker Melanie Yagelski ("Yagelski"), the condition of the residence deteriorated.

In response to a report of neglect, OFC case manager Eileen Walters ("Walters") attempted to conduct a home visit on July 21, 1994, but Mother and the children were not at home. The outside of the residence was filthy, and odors emanated from the interior of the house. Walters obtained a detention order, but the children were not taken into OFC custody because Mother and the children had fled to Michigan. Mother returned to Indiana during 1995 and moved into a new modular home.

On June 21, 1995, Mother entered into a service agreement with OFC, and OFC made a second homemaker referral, Family case manager Chuck Barnett testified that the interior of Mother's residence was maintained at a "minimally sufficient level" of cleanliness during the six-month agreement period, although he observed steady deterioration of housekeeping standards. R. at 225.

On August 6, 1997, Richey returned to Mother's residence in response to a report that the home was uninhabitable Upon gaining entry to the home, Richey observed numerous dogs in the master bedroom/master bathroom area.³ The room was covered with animal feces and garbage. J.K., then an infant, appeared to be underweight and covered with flea bites.⁴ Richey removed the four children from the residence. Family case manager Mare Brown ("Brown") was assigned to work with Mother in reunification efforts. The animals were removed, the carpeting was cleaned, and Mother was able to attain minimally adequate standards of housekeeping. The children were returned to Mother during June 1998.

Mother and the children moved to Fran-cesville, Indiana. Initially, the new home was reasonably well-kept. However, the condition of the home onee again deteriorated, and Mother stopped keeping appointments with service providers. Brown observed animal feces on the floor of Mother's residence. When he visited the older three children at school, Brown discovered that they "smelled badly." R. at 286. Brown opined that D.S. was depressed, and the children were generally ostracized and tormented at school because they were unclean. Brown described the situation as one where "I couldn't really stand to be in the same room with them."R. at 286. On April 15, 1999, the children were again removed from Mother's eustody. Brown's last visit to Mother's home was made during March 2000, when he found the appearance of the residence to be "better" and things "picked up." R. at 249. He observed no animals at the residence.

On January 4, 2000, OFC filed a petition to terminate the parent-child relationships of Mother and the respective fathers of KS., D.S., B.G., J.K. A hearing was held on June 6 and 8, 2000. The fathers appeared, and each agreed to the termination of his parental rights. Mother appeared and opposed the termination of her parental rights. A foster parent of K.S. and D.S. and a foster parent of B.G. and J.K. testified; each expressed a desire to adopt their foster children. On June 28, 2000, the trial court issued an order terminating Mother's parental rights. Mother filed a Motion to Correct Error, which was summarily denied. Mother now appeals.

Discussion and Decision

This court has long had a highly deferential standard of review in cases concerning the termination of parental rights. Parental rights are of a constitutional dimension, but the law provides for the termination of those rights when the parents are unable or unwilling to meet their parental responsibilities. In re L.S., 717 N.E.2d 204, 208 (Ind.Ct.App.1999), trams. denied. The purpose of terminating parental rights is not to punish the parents, but to protect their children. Id. We will not set aside the trial court's judgment terminating a parent-child relationship unless it is clearly erroneous. Egly v. Blackford Cnty. DPW, 592 N.E.2d 1232, 1234-35 (Ind.1992). In determining whether the evidence is sufficient to support the judgment terminating parental rights, this court neither reweighs the evidence nor judges the credibility of witnesses. Id. at 1235. We consider only the evidence that supports the judgment and the reasonable inferences to be drawn there from. Id. Findings of fact are clearly erroneous only when the record lacks any evidence or reasonable inferences to support them. Crowley v. Crowley, 708 N.E.2d 42, 54 (Ind.Ct.App.1999).

In order to terminate a parent-child relationship, OFC must allege and prove by clear and convincing evidence that:

(A) [oJne (1) of the following exists:

(1) the child has been removed from the parent for at least six (6) months under a dispositional decree;

(i) a court has entered a finding under IC 81-34-21-5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court's finding, the date of the finding, and the manner in which the finding was made; or

(iii) after July 1, 1999, the child has been removed from the parent and has been under the supervision of a county office of family and children for at least fifteen (15) months of the most recent twenty-two (22) months;

(B) there is a reasonable probability that:

(i) the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied; or

(ii) the continuation of the parent-child relationship poses a threat to the well-being of the child;

(C) termination is in the best interests of the child; and

(D) there is a satisfactory plan for the care and treatment of the child.

Ind.Code § 81-85-2-4(b)(emphasis supplied). The trial court must subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding the termination. In re A.A.C., 682 NE.2d 542, 544 (Ind.Ct.App.1997). Termination of a parent-child relationship is proper where the child's emotional and physical development is threatened. Egly, 592 N.E.2d at 1234. However, the right of parents to raise their children should not be terminated solely because there is a better home available for the children. In re V.A., 632 N.E.2d 752, 756 (Ind.Ct.App.1994).

Mother contends that OFC presented insufficient evidence to support the termination of her parental rights. Specifically, she argues that OFC failed to prove by clear and convincing evidence that there is a reasonable probability that the conditions which resulted in her children's removal will not be remedied.

In determining whether the conditions that led to the children's removal from the home are likely to be remedied, the trial court must assess a parent's ability to care for her children as of the date of the termination proceeding and take into account any evidence of changed conditions. See In re B.D.J., 728 N.E.2d 195, 201 (Ind.Ct.App.2000). However, the trial court should also take into account the parent's habitual patterns of conduct as a means of determining the probability of future detrimental behavior, as well as the services offered by OFC to the parent and the parent's response to those services. Id. at 200-01. 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. Id. at 199.

Here, the trial court entered an eleven page order of extraordinarily detailed and well-supported findings and conclusions. For example, after describing OFC's prior removal of the children due to squalid conditions in 1998, 1994 and 1997, the trial court found that:

[tlhe Office of Family and Children, the CASA, and this Court, have made repeated, sincere attempts to facilitate the preservation of this family. The children's mother has made repeated efforts to provide her children with a safe, sanitary and suitable home. She has, in fact, demonstrated the ability to do so for periods of time. She has made attempts to control her depression which apparently is the root of her difficulties in properly caring for her home and her children. She has been nurtured, counseled, medicated, taught, encouraged, and threatened with termination of parental rights in an effort to achieve the common goal of all the parties to this proceeding, reunification and/or preservation of this family. Despite all efforts, the problems which continue to plague the mother and her children inevitably and invariably return. More accurately, the probleras never go away, but the mother continues to lose her well-intentioned battles to control them. This court has not the slightest doubt that the conditions that have resulted in removal of these children on numerous occasions will never be remedied.

R. at 42. The trial court's finding is supported by the record and is therefore entitled to considerable deference by this Court, not the de novo review suggested by the dissent. In re L.S., 717 N.E.2d at 208.

The trial court also made independent findings on the alternative statutory ground that continuation of the parent-child relationship poses a threat to the children's well-being. Ind.Code § 31-85-2-4(b)(2). The trial court found that:

[TJhis is not merely a "dirty house" case. We are not dealing with children whose parents are poor, and whose housekeeping standards do not meet with the haughty expectations of more affluent neighbors. Rather, this is a case where the children are treated only slightly better than the malnourished, flea-bitten, diseased, feces-matted animals which are routinely found sharing their home. While these children love their mother, are bonded to her, and recognize her love for them, they are nevertheless time after time physically and psychologically harmed by her inability to overcome her personal demons that keep her from translating her feelings of love into substantial, long-lasting actions of love....

The children have immediate needs for permanency and stability which their parents continue to be unable to provide for them, and which has been and will continue to be provided in an adoptive placement. It is in their best interests to grow up in a clean, safe, secure, and stable environment, free of piles of junk and garbage, free of stench of exerement, free of maltreated, diseased, flea-infested animals, free of being ushered out of their home, their school and their community, with their names or appearances changed in order to stay one step ahead of the next CPS investigation, free of fathers who could not possibly care less about them or their best interests, free of being bounced back and forth between their mother and foster care placement, free of fear that the next foster care placement may not be a good one or allow sufficient contact with siblings, free of anger, fear and humiliation at being social outcasts, and free of interminable wait for their mother to finally "succeed", and the torturous uncertainly of not knowing what will happen to them tomorrow, next week, next month, next year.

R.at 42-44.

Thus, the trial court found not only lack of remediation as grounds to terminate; it also entered findings and conclusions clearly showing that the continuation of the parent-child relationship poses a threat to the well-being of the children.⁵ Either of these elements is sufficient to make termination appropriate.

This is a difficult case because it turns on whether there is ever a situation in which the parent-child relationship can and should be terminated due to the abjectly filthy conditions in which a parent repeatedly chooses to raise his or her child. We regretfully conclude that the trial court's comprehensive findings and conclusions show this is just such a rare case. Mother was clearly entitled to a second chance in 1998, but not a fourth chance in 2000.

Affirmed.

BAKER, J., concurs. BAILEY, J., dissents with separate opinion.

1 . Mother also raises an additional issue concerning an alleged violation of her due process rights because of the trial court's noncompliance with statutory requirements governing pre-termination proceedings-; specifically: a permanency hearing, case plan and dispositional order. However, this allegation of error is waived because a party may not raise an issue for the first time on appeal. Burton v. Estate of Davis, 730 N.E.2d 800, 805 n. 4 (Ind.Ct.App.2000). Likewise, OFC alleges that, at an undetermined time, a trial court employee modified the cause number on a praecipe filed by Mother because Mother referenced an incorrect cause number. Absent evidentiary support and citation to controlling authority to support the allegation of error, this Court will not address the allegation. Indiana Appellate Rule 8.3(A)(7).

2 . JK. had not yet been born.

3 . Mother testified that her ex-husband, Robert Karreman, kept as many as 28 dogs in the family residence, and that some of the dogs were sickly, abandoned animals that the couple was attempting to nurse back to health. As of the time of the termination hearing, Mother was divorced from Karreman and he no longer resided in the family residence.

4 . Richey theorized that the infant's low weight was a result of being fed milk rather than infant formula. However, OFC did not allege that the children were inadequately fed, or that Mother's home did not contain an adequate supply of food.

5 . Indeed, the trial court's findings disclose that as of the last removal, D.S., now thirieen years old had been twice hospitalized, was depressed and was placed on probation for baitering Mother.