Peterson v. Marion County Office of Family & Children

BROOK, Chief Judge,

dissenting.

The trial court failed to take into consideration overwhelming evidence of Mother's changed circumstances by the time of the final hearing. Accordingly, I respectfully dissent from the Majority's decision to affirm the termination of Mother's parental rights.

To determine whether there is a reasonable probability that the conditions which resulted in a child's removal or continued placement outside of the home will be remedied, the trial court should judge a parent's fitness to care for her child at the time of the termination hearing, taking into consideration evidence of changed conditions. In re D.J., 755 N.E.2d 679, 684 (Ind.Ct.App.2001), trans. denied. A termination of parental rights cannot be based entirely upon conditions which existed in the past, but which no longer exist. - In re Termination of Parent-Child Relationship Between Children: T.C., and Parents: P.C., 630 N.E.2d 1368, 1374 (Ind.Ct.App.1994), trans. denied. My review of the record reveals, however, that the trial court did just that.

-It is clear from the record that the MCOFC witnesses' involvement with Mother was severely limited in duration, and was too remote in time to accurately reflect Mother's parental fitness as of the date of the final hearing in March of 2008. For example, Leesa Franklin MCOFC home-based counselor, testified that at the time she closed her case, she had significant concerns regarding Mother's ability to safely provide for D.D. due to Mother's lack of consistency in taking her medications, her lack of stable residency and employment, and her emotional instability. This testimony is directly reflected in the trial court's finding number fourteen. The record reveals, however, that Franklin only worked with Mother for three months, beginning in December of 2000, and ending in February of 2001, at the commencement of the CHINS proceedings. Additionally, Franklin testified that she had no knowledge of Mother's current situation. Thus, the trial court's finding number fourteen, while technically accurate for the three months Franklin was involved in the case, is misleading in that it *269does not reflect an accurate assessment of Mother's fitness as of the time of the final hearing in March of 2008.

Likewise, Susan Gerber, resource coordinator for the Action Coalition to Ensure Stability ("ACES"), also testified on behalf of MCOFC. Her testimony is directly reflected in the trial court's findings numbers fifteen, nineteen, twenty, twenty-one, twenty-five, and twenty-seven. Gerber's testimony, however, reveals that her contact with Mother began in February 2001, and ended in July of 2002, one full year before the final termination hearing. Moreover, when Gerber testified on August 5, 2002, she stated that the last time she had spoken to Mother was thirty days earlier, and that at that time, Mother had reported that she was working with mental health services and taking her medication as prescribed.

Finding number nine indicates that Mother was diagnosed with borderline personality disorder. - Findings twenty-six and twenty-seven discuss in detail the symptoms of borderline personality disorder and other "disturbing" behaviors Mother demonstrates. The language of these findings is taken practically verbatim from Dr. Takuyo Sato's testimony. Tr. at 213-14, 218-19. My review of the record, however, reveals that these findings mis-characterize Dr. Sato's testimony.

Dr. Sato testified that, in light of Mother's history and presentation during the interview, she met the criteria for border line personality disorder. He further explained, however, that this meant that he was left with a "diagnostic impression" or "initial evaluation" that Mother exhibited symptoms, which met the criteria for borderline personality disorder. Tr. at 213. Dr. Sato also admitted that his involvement with Mother consisted solely of one psychiatric evaluation conducted during two fifty-minute sessions held on March 8th and April 5th .of 2002, approximately one year before the final hearing. Dr. Sato further testified that Mother. did not complete any type of psychological testing, that he was not asked to make a treatment recommendation for Mother, and that he had never met with D.D. Tr. at 228.

Other than finding number twenty-four, in which the trial court acknowledges that Mother had remarried and was living with her husband, the trial court's termination order is completely silent with regard to the uncontroverted evidence of Mother's remediation of the conditions which led to D.D.'s placement outside her care and custody. 'This solitary finding by the trial court ignores the fact that as of the March 2003 final hearing, Mother had remedied every reason cited by the trial court for D.D.'s continued removal from her care.

Mother was not only married and living in a two-bedroom residence with her husband, but she Had been seeing a counselor once a week for the previous six to seven weeks, and had seen another therapist every two weeks for a year prior to that. Tr. at 487-88. Also, at the time of the final hearing, the uncontroverted evidence reveals that Mother, who suffers from depression and anxiety, was taking her medication as prescribed, was involved in a parenting program called Solo Flight, attended four meetings a week at Narcotics Anonymous for Dual Diagnoses, participated in Sober Life meetings for former addicts, and was taking classes to become a social worker. Tr. at 490-91, 505.

Mother's husband, Steven Daniels, also testified. Daniels verified that he had observed Mother taking her medications as directed. Additionally, Daniels provided undisputed evidence that he was gainfully employed, attended many of the weekly Narcotics - Anonymous - meetings - with Mother as a show of support, provided financial support for Mother, had met D.D. *270and was willing to financially support him, and was willing to go to family therapy and parenting classes to help D.D. adjust to his new life should Mother regain custody of D.D. Tr. at 501-10. Based on the foregoing, it seems obvious that the trial court failed to consider Mother's parental fitness as of the date of the final termination hearing.

The Majority discounts this overwhelming evidence of changed circumstances stating, "these alleged changed conditions are based solely upon the testimony of Mother and her current husband. Mother introduced no additional documentation or other evidence in support of these changed conditions." . Op. at 266. I find this decision, to ignore the testimony of two witnesses who have sworn an oath to tell the whole truth in a court of law simply because there is no additional corroborating evidence, troubling.

While a trial court is certainly permitted to make judgment calls when evaluating the credibility of witnesses, the fact that a witness may have a motive to lie does not automatically render his or her testimony unreliable. See Brasher v. State, 746 N.E.2d 71, 73 (Ind.2001) (stating that it was within the jury's province to find the witness's testimony credible even though the witness had a motive to lie). Similarly, we routinely uphold criminal convictions based on the self-serving testimony of a single eyewitness. See Parmley v. State, 699 N.E.2d 288, 291 (Ind.Ct.App.1998) (affirming a conviction for child molesting based solely on the uncorroborated testimony of the victim), trans. denied; see also Hubbard v. State, 719 N.E.2d 1219, 1220 (Ind.1999) (holding that the uncorroborated testimony of the victim was sufficient to sustain the defendant's convictions for murder, attempted murder, robbery and confinement).

Here, both Mother and her husband swore an oath to tell the truth before testifying about Mother's current housing, medication compliance, counseling and educational endeavors. The MCOFC failed to present any evidence contradicting this testimony. Moreover, most of the "damning" evidence pertaining to Mother's former drug use, medicinal non-compliance, housing and employment failures which MCOFC caseworkers and counselors relied upon, was freely revealed to them by Mother herself. It seems inconsistent to me that the Majority is willing to accept as true testimony based on Mother's unsworn self-reports to counselors and caseworkers, while at the same time automatically dismiss the reliability of Mother's own sworn testimony in a court of law.

The Majority claims:

The trial court was permitted to judge Mother's and her husband's credibility and weigh their testimony against the significant - testimony - demonstrating Mother's habitual patterns of conduct in failing to address her mental health problems, be consistent in taking her medication, address her addiction problems, and provide a safe and consistent nurturing residence and environment for D.D.

Op. at 267. -It is true that, when judging a parent's fitness, the trial court should examine the parent's habitual patterns of conduct, as well as the parent's fitness at the time of the termination hearing, to determine whether there is a substantial probability of future neglect or deprivation of the child. See In re D.G., 702 N.E.2d 777, 779 (Ind.Ct.App.1998). However, the Majority seems to limit its view of what constitutes Mother's habitual pattern of conduct.

Granted, for many months following the initiation of the CHINS proceedings, Mother was often non-compliant with MCOFC's mental health treatment, employment, and housing rules. However, *271the record contains undisputed evidence that before MCOFC's involvement in October of 2000, Mother was the primary caregiver to D.D. and her other two children. Unchallenged testimony from Mother and various other witnesses, including D.D.'s biological father, paternal grandmother, MCOFC caseworker Leesa Franklin, and the juvenile court's own home assessment.5 further shows that for the first seven years of D.D.'s life, Mother was a caring and affectionate mother. For seven years, Peterson provided D.D. with adequate food, good hygiene, a clean home, proper clothing, appropriate medical care, and love and affection, despite her mental afflictions. This evidence of Peterson's habitual past conduct, combined with the undisputed evidence of Peterson's changed conditions as of the final hearing in March of 2003, undermines the Majority's conclusion that Mother's habitual pattern of conduct supports a finding that the reasons for D.D.'s continued placement outside of Peterson's home are likely to continue and that the continuation of the parent-child relationship poses a threat to D.D.'s well-being.6

Finally, I cannot accept the Majority's ultimate conclusion that this Court "cannot say that the trial court's finding that Mother's habitual pattern of conduct indicates that there is a reasonable probability that reasons for D.D.'s continued placement outside of Mother's home are likely to continue is clearly erroneous." Op. at 267. Admittedly, significant evidence indicates that Mother was not a perfect person, or a perfect mother. Perfection, however, is not required of a parent before termination of the parent-child relationship. In re T.C. and P.C., 630 N.E.2d at 1374.

By the time of the final hearing, Mother's cireumstances had changed dramatically. Additionally, the specific reasons for D.D.'s continued placement outside the home, namely, Mother's prior misuse of prescription drugs, her mental illness and erratic behavior, her failure to follow through with mental health treatment, and her inability to provide a safe and consistent nurturing residence for D.D., had all been addressed. Likewise, the perceived *272threat to D.D.'s emotional well being due to Mother's prior medicinal non-compliance was also remedied. This Court has previously stated, and I believe, that "it would be useless and wasteful to provide a process by which a parent could work toward reunion with a child, if ... the basis for termination is the events surrounding the child's initial removal." Id. at 1375.

Our supreme court has explained that termination of parental rights is the exception rather than the rule, in that "[elhil-dren are not taken from ... their parents because there is a better place for them [but rather] because ... the custody of their parents is wholly inadequate for their very survival." Matter of Miedl, 425 N.E.2d 137, 141 (Ind.1981); see also Carrera v. Allen County Office of Family and Children, 758 N.E.2d 592, 595 (Ind.Ct.App.2001). Moreover, this Court will reverse a trial court's order terminating a parent-child relationship upon a showing of "clear error"-that which leaves us with a definite and firm conviction that a mistake has been made. Egly v. Blackford County Dep't of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind.1992).

A thorough review of the record in this case leaves me convinced that a mistake has indeed been made. While there may have been sufficient evidence to support the termination of Mother's parental rights when the termination petition was originally filed, it is clear that the trial court completely disregarded the uncontroverted evidence of Mother's dramatic change in cireumstances as of the date of the final termination hearing. It is for this reason that I would reverse the trial court's termination of Mother's parental rights to D.D. and reunite this child with his Mother.

. A parenting assessment conducted on August 24 and 31, 2000, and admitted during the termination hearing stated that Mother was "bonded, nurturing, appropriate and comfortable with her children. The children also appeared bonded and comfortable with [Mother]." Respondent Mother's Ex. # 79 at 86. The report also indicated that the home was clean and appeared safe and appropriate for the family. Respondent Mother's Ex. # 70 at 80.

. The Majority, in discounting Mother's habit ual pattern of conduct as a caring and affectionate mother prior to MCOFC's involvement, points to testimony given by Delozier, Mother's former live-in boyfriend who was fighting her for custody of D.D. See op. at 267 n. 4. What is not clear from the Majority's recount of this testimony, however, is that Mother's alleged suicide attempt occurred in December of 2000, after MCOFC was already involved in the case, and during the time when Delozier, under the direction of MCOFC, was evicting Mother from her home. Tr. at 380, 382. Thus, it does not negate Mother's parenting performance prior to MCOFC's involvement. - Additionally, the transcript is silent as to when, during the period of April 1999 through December 2000, Delozier observed Mother passed out on the couch. Tr. at 378. Obviously, sometime before MCOFC's involvement, Mother's ability to properly care for D.D. was compromised. Otherwise, MCOFC would never have remained involved. However, as stated earlier, there was significant testimony from several witnesses, including one of MCOFC's own caseworkers, that for the majority of D.D.'s life prior to MCOFC's involvement in 2000, Mother had been a nurturing and caring parent who was appropriately bonded with her son. This evidence, coupled with Mother's dramatic change of circumstances by the time of the final hearing, in my opinion, necessitates a finding that the trial court erred in terminating Mother's parental rights to D.D.