Stewart v. Indiana Department of Child Services

906 N.E.2d 226, 2009 Ind. App. LEXIS 830
CourtIndiana Court of Appeals
DecidedMay 20, 2009
DocketNo. 84A01-0811-JV-548
StatusPublished
Cited by3 cases

This text of 906 N.E.2d 226 (Stewart v. Indiana Department of Child Services) 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
Stewart v. Indiana Department of Child Services, 906 N.E.2d 226, 2009 Ind. App. LEXIS 830 (Ind. Ct. App. 2009).

Opinion

[229]*229OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellants-Respondents, Jamie Stewart (Father") and Francesca Cortellini ("Mother"), appeal the trial court's involuntary termination of their respective rights to their son, J.S.

We affirm.

ISSUE

Father and Mother raise four issues on appeal, which we consolidate and restate as the following single issue: Whether there is sufficient evidence to support the trial court's order to terminate the parents' parental rights.

FACTS AND PROCEDURAL HISTORY

Father and Mother are the biological parents of J.S., born on December 18, 2006. The parents, who are not married, have lived together since the time of J.S.'s birth. The Vigo County Department of Child Services (VCDCS) first became involved with the family on February 21, 2007, when it received a referral that then two-month-old J.S. had been hospitalized with multiple fractures, including fractures to the 6th and 7th ribs, the left tibia, and a hairline skull fracture with bleeding behind the fracture. At the time of his injuries, J.S. had been in the sole custody of his parents. Reportedly, on the day of J.S.'s injury, Mother had left the family home to go to the gas station while J.S. remained at home in Father's care. When J.S. later awoke from his nap, he was unresponsive and was taken to a local hospital. J.S. was then transferred, via ambulance, to St. Vincent's Hospital and the VCDCS was contacted. Neither parent could explain how J.S. sustained his injuries, and neither parent admitted to causing the injuries.

Later the same day, the VCDCS investigating officer, in making an oral motion for emergency detention, informed the trial court that it was believed J.S.'s physical condition was seriously endangered and that his current injuries, which occurred while J.S. was in his parents' sole custody, were caused by either an act or omission of his parents. The trial court granted the VCDCS's motion for emergency detention and issued an order directing the VCDCS case manager to take immediate temporary custody of J.S. The trial court's order also required a detention hearing be held within forty-eight hours.

On February 23, 2007, a detention hearing was held and the VCDCS filed a petition alleging J.S., who remained in the hospital, was a child in need of services ("CHINS"). The parents denied the allegations of the CHINS petition; and, following the initial hearing, the trial court issued an order setting the matter for an evidentiary hearing. The trial court also found that continued out-of-home placement was necessary to protect J.S.'s health and safety.

On June 12, 2007, a fact-finding hearing on the CHINS petition was held. At the conclusion of the hearing, J.S. was found to be a CHINS. In so finding, the trial court applied the rebuttable presumption of Indiana Code Section 31-34-12-4, namely, that J.S. was a CHINS because he was injured while in the care, custody, and control of this parents and his injuries would not ordinarily have occurred, except for an act or omission of the parents.

Following a dispositional hearing held on July 10, 2007, the trial court issued an order formally removing J.S. from his parents' custody and directing Father and Mother to participate in a variety of services in order to achieve reunification with [230]*230J.S. Among other things, Father and Mother were ordered to: (1) undergo psychological examinations and follow all resulting recommendations; (2) successfully complete parent education classes and be able to demonstrate a good understanding of a child's physical, emotional, and cognitive needs; (3) attend couples' counseling; (4) refrain from the use of illegal substances; (5) submit to random drug sereens; (6) obtain either part-time or full-time employment; and, (7) exercise regular supervised visitation with J.S. Father and Mother were also ordered to each pay child support for J.S. in the amount of $41.00 per week. In addition, Father and Mother were both advised that a missed drug screen would be deemed to be a positive sereen. On July 17, 2007, J.S. was placed in relative foster care with his maternal grandmother, who is a licensed foster parent, and his step-grandfather. At the time of the termination hearing, J.S. remained in relative foster care with his grandparents.

At the outset of the CHINS case, Father and Mother, who initially agreed with all of the VCDCS's recommendations for services except for couples' counseling, were compliant with the trial court's dispo-sitional orders. For example, Father and Mother both submitted to psychological evaluations. They also began attending parenting classes. Both parents' participation with court orders, however, soon became inconsistent.

Although Father and Mother regularly participated in supervised visitation throughout the duration of the CHINS case, the visits with J.S. were oftentimes chaotic and volatile because of the couple's constant arguing and bickering. On one occasion, a visit had to be ended prematurely and the police had to be called due to both parents' hostile behavior toward visitation supervisors. In addition, Father and Mother were unable to produce clean drug screens, either testing positive for marijuana or failing to show for their appointments after being notified of random screens. Father and Mother also failed to maintain steady employment, declined to further participate in couple's counseling after only attending three sessions, and refused to voluntarily pay any child support for J.S.

During a permanency hearing held on January 29, 2008, the VCDCS submitted a report recommending the trial court issue an order to change the permanency plan from reunification to termination of Father's and Mother's parental rights. This recommendation was made because neither parent was fully cooperating with the case plan, and due to the severity of J.S.'s initial injuries. The trial court issued an order accepting the VCDCS's newly recommended permanency plan on the same day.

On February 28, 2008, the VCDCS filed a petition seeking to terminate Father's and Mother's respective parental rights to J.S. A fact-finding hearing on the termination petition was held on July 14, 2008, and the trial court issued an order terminating both parent's parental rights to J.S. on July 29, 2009.1 Both parents now appeal.

DISCUSSION AND DECISION

Father and Mother both challenge the sufficiency of the evidence supporting the trial court's termination order. We begin our review by acknowledging [231]*231that this court has long had a highly deferential standard of review in cases concerning the termination of parental rights. In re K.S., 750 N.E.2d 832, 836 (Ind.Ct.App.2001). Thus, when reviewing the termination of parental rights, we neither reweigh the evidence nor judge the credibility of the witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind.Ct.App.2004), trans. denied. Instead, we consider only the evidence and reasonable inferences that are most favorable to the judgment. Id.

At our request, the trial court made specific findings of fact and conclusions thereon in its order terminating Father's and Mother's parental rights. Where the trial court enters specific findings of fact, we apply a two-tiered standard of review. First, we must determine whether the evidence supports the findings, and second, we determine whether the findings support the judgment. Bester v.

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906 N.E.2d 226, 2009 Ind. App. LEXIS 830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-indiana-department-of-child-services-indctapp-2009.