Schultz v. Porter County Office of Family & Children

BAILEY, Judge,

dissenting.

I respectfully dissent. The majority observes that the trial court entered findings 'and conclusions that are "extraordinarily detailed and well-supported," 750 N.E.2d at 837, and then leaps to the conclusion that lengthy and articulate findings having some basis in fact necessarily establish the requisite clear and convincing evidence to support the termination of parental rights. However, the findings and conclusions lack reference to any discernable evidence of causal connection between the conditions of the residence and any imminent harm to the children.

The trial court must assess the parent's ability to care for her children as of the date of the termination proceeding, taking into account evidence of changed conditions. See In re B.D.J., 728 N.E.2d 195, 201 (Ind.Ct.App.2000). - Here, the trial court issued findings which purportedly support its termination order on either of two alternative grounds, specifically, there is a reasonable probability that the conditions that resulted in removal will not be remedied or the continuation of the parent-child relationship poses a threat to the well-being of the children.

Nevertheless, it is clear that the trial court did not judge Mother's parental ability as of the date of the termination proceeding, as it totally failed to consider the uncontroverted evidence of remediation of the sole condition alleged by the OFC to have prompted the children's removal; namely, a lack of cleanliness. The OFC alleged that a lack of cleanliness prompted the children's removal, Mother has consistently provided her children with food, clothing and shelter. She has a stable source of income. There have been no allegations of physical or sexual abuse. Since their placement in foster care, Mother has consistently maintained contact with her children. She has substantially complied, albeit with less than optimal and permanent results in the area of homemaking, with previous dispositional orders. Mother has sought long-term therapy for her depression. OFC caseworkers and Mother's therapist uniformly testified that a parent-child bond exists between Mother and her children. Thus, the sole condition that the OFC sought to remedy is inadequate personal and household cleanliness.

As the majority points out, the squalid conditions present in 1998, 1994 and 1997 were addressed in the trial court's findings. These findings have evidentiary support. Arguably, the OFC might have sought termination of parental rights in 1998, 1994 or 1997. However, in 2000, the home was "suitable for children" in the opinion of OFC case manager Mare Brown. R. at 258. He testified that the photographs of the home submitted by Mother at the termination hearing (depicting a clean home) fairly represented its condition upon his last inspection. Mother testified that she no longer kept any animals in her home. There is no evidence to the contrary. - Accordingly, the trial court's conclusion that the condition prompting removal "will never be remedied" is clearly erroneous. R. at 42.

*840Likewise, the trial court's conclusion that the continuation of the parent-child relationship poses a threat to the children is clearly erroneous because it lacks evi-dentiary support. In the guise of findings and conclusions D(1)-(2), identified by the trial court as supporting this basis for termination, and cited approvingly by the majority, the trial court issued nothing more than an emotionally appealing statement of social goals. I certainly do not challenge the proposition that children, all children, deserve to live in a clean home with loving parents. However, we, as judges, do not fulfill our function by merely rubber-stamping the placement of four children in presumably optimal homes (in this case, two separate adoptive homes) absent clear and convincing evidence on each element of Indiana Code section 31-35-2-4(b). We are charged with resolving all cases, and particularly those of a Constitutional dimension, based upon facts properly proven in court and not by resort to our personal norms or subjective opinions.

While the majority is content to make the leap of faith that an unclean house is causally connected to D.S.'s problems, absent admissible evidence to that effect, I cannot follow their lead. The record discloses that D.S. has twice received in-patient mental health services "because of his behavior." R. at 285. The precipitating events were instances where D.S. struck Mother. - Additionally, Mare Brown offered a lay opinion that D.S. was depressed when Brown visited him at school. However, the record does not disclose a clinical diagnosis of depression or other mental illness. Moreover, the OFC did not present testimony, expert or otherwise, which establishes a nexus between D.S.'s mental health problems, if any, and an unsanitary home.

Lacking a causal connection, the trial court essentially penalizes Mother for seeking mental health services for D.S. although an entire mental health industry provides treatment for anger management and depression. If this Court holds that the trial court was entitled to conclude without proof that a parent who seeks mental health care for her child has also caused the underlying problem or condition, use of community mental health facilities will be greatly discouraged and the problems of the family will once again be cloaked in secrecy because of the threat of termination. The OFC postulated, with conjecture and leaps of logic, that D.S.'s problems were directly attributable to a. lack of cleanliness, and this proposition was adopted both by the trial court and the majority. Taking to its logical extreme the premise that aggression and depression are rooted in filth, the OFC should discourage families from relying upon relatively expensive therapy and medication and encourage them to instead procure housekeeping services.

Moreover, assuming that we may presume from the conclusory statement of a caseworker that a lack of cleanliness harmed D.S. by causing his depression, the record is nevertheless void of a causal connection between the condition of the house and verifiable harm to the other three children.6

Additionally, I am not persuaded that the OFC presented clear and convincing evidence of a satisfactory plan for the care *841and treatment of the children. The OFC proposes that the children, who have bonded with Mother and with each other over many years, be adopted into two separate households. Curiously, the trial court's findings and conclusions are silent as to the potential for traumatic psychological effects resulting from the separate adoptions of the siblings. The practical effect of the termination order is this; the parent-child bond between Mother and four children is legally ended.7 Each child, who formerly had three siblings each, is to be adopted into a home with one biological sibling. Additionally, the children. would be denied the continuation of their relationships with their maternal grandmother and maternal aunt, who were significantly involved in their lives prior to the termination order.

Finally, I question the absence of OFC efforts directly involving the children (three of whom are teenagers or pre-teen) in reaching the goal of personal cleanliness. 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). Here, there is no evidence that the caseworkers or homemakers offered any instruction directly to the children. Dr. Gerard Ahblers testified that the children are "polite, respectful, moral, nondemanding and intelligent." R. at 504. Presumably, they could cooperate with homemaker services and benefit therefrom. In light of the constitutional magnitude of parental rights, it was incumbent on the OFC to explore all reasonable alternatives to terminating parent-child relationships of lengthy duration and substituting separate adoptive relationships.

Regardless of the breadth of the purported findings and conclusions, termination of parental rights cannot be sustained on the basis of speculation and self-determination of social norms. Children are not to be removed from the home of the natural parent because there is a "better" place for them. In re T.C., 630 N.E.2d 1368, 1373 (Ind.Ct.App.1994). Aspirational goals such as those expressed by the trial court and echoed in the majority opinion, however worthy they may be, do not substitute for admissible evidence amounting to clear and convincing proof on each requisite statutory element to support the termination of parental rights. Accordingly, I would reverse the termination judgment.

. Dr. Caryn Brown, B.G.'s therapist, testified that B.G. exhibited anxiety, stress and concern about "the outcome of the proceedings." R. at 489. However, Dr. Brown ilestified that she did not speak with B.G. about any past hygiene problems B.G. may have experienced and that she and B.G. discussed the condition of the house "only in a peripheral way." R. at 490.

. The two living fathers are not parties to this appeal. Each appeared at the termination hearing and moved to voluntarily relinquish his parental rights. The trial court took the motions under advisement, pending the "conclusion of evidence in the remaining portions of the case." R. at 109. Prior to the termination order, the father of K.S. and D.S. paid child support through a wage assignment.