dissenting.
I respectfully dissent as to termination of Carolyn's parental rights.
The evidence best supporting the judgment indicates William and Carolyn were married in 1988; C.D. was born a year later. The parents disagreed on methods of child discipline. William, on religious grounds, believed he had the right to physically discipline both his wife and newborn daughter if their conduct displeased him. On several occasions he "spanked" C.D. with a paint stirrer, a thin ruler-sized piece of wood, first when she was four months old because her erying annoyed him. R.D. was born in 1984.
William's relationship with Carolyn and his daughters continued to be alternately tolerable, then stormy. It included corporal punishment and stern verbal discipline of his infant daughters, and William's unprovoked beatings of Carolyn both when she attempted to intervene during William's disciplining of his daughters, and otherwise. Finally, Carolyn left William, returned, then left again with her daughters when the beatings began again, seeking protection for them in a battered women's shelter. She sued for divorce in 1985, which was granted in 1986. The court awarded custody of the children to Carolyn. She subsequently remarried, but left the new husband when he, too, proved to be a child beater. Finally, Carolyn left her daughters with a friend, then left to roam the country. DPW eventually intervened, and provided them with a foster home. Meanwhile, Carolyn remarried, happily this time, and she and her new husband now operate a successful janitorial service in Michigan.
At DPW's initiation, C.D. and R.D. were declared children in need of services in 1988. DPW's social worker and psychologist witnesses testified she has made only sporadic efforts to stay in touch with her children over the years.
DPW witnesses also complain although she has tried to learn the "parenting skills" DPW believes she should possess, she is incapable of doing so. On this score, the trial court found
6. ... [Blased on the testimony of experts, it is unreasonable to assume that the mother has matured or can mature to a point where she can provide for the protection of the children, stability of the children, and for their physical and emotional needs.
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8. Termination of the parent-child relationship is in the best interest of these children in that they have suffered severe emotional difficulties as a result of the parents' frequent and long-term voluntary absences; [their] failure to adequately protect them; physical abuse of the father and former step-father; and continued contact with the parents would be detrimental to the long-term emotional and mental health and well-being, as well as physical well-being of the children....
(R. 82-83). From the judgment terminating their parental rights, William and Carolyn appeal.
Even though troubling given the nature of the appeal before us, I believe this record contains substantial evidence of probative value which supports termination of William's parental rights. I believe so because the evidence and testimony as to him stands unrefuted in this record and is internally consistent. I thus concur with the majority on that score.
However, as to Carolyn, I respectfully dissent. The evidence presented by the DPW upon which the trial court based its termination of Carolyn's parental rights does not rise to the quality required before parental rights can be terminated. In sum, its quality is not "clear and convincing" in that regard.
As our United States Supreme Court has noted, cases where constitutional rights and federal due process are involved entail *597a substantially higher standard of proof than the typical civil damage case. Explaining the difference, Chief Justice Burger said:
The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfind-ing, is to "instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication." In re Win-ship, 397 U.S. 858, 870, 90 S.Ct. 1068, 1076, 25 LEd.2d 868 (1970) (Harlan, J., concurring). The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.
Generally speaking, the evolution of this area of the law has produced across a continuum three standards or levels of proof for different types of cases. At one end of the spectrum is the typical civil case involving a monetary dispute between private parties. Since society has a minimal concern with the outcome of such private suits, plaintiff's burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion.
In a criminal case, on the other hand, the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an accused beyond a reasonable doubt. In re Winship, supra.
The intermediate standard, which usually employs some combination of the words "clear," "cogent," "unequivocal," and "convincing," is less commonly used, but nonetheless "is no stranger to the civil law." - Woodby v. INS, 885 U.S. 276, 285, 87 S.Ct. 483, 488, 17 LEd.2d 862 (1966).... The interests at stake in those cases are deemed to be more substantial than mere loss of money and some jurisdictions [including Indiana] accordingly reduce the risk to the defendant ... by increasing the plaintiff's burden of proof. Similarly, this Court has used the "clear, unequivocal and convine-ing" standard of proof to protect particularly important individual interests in various civil cases. [such as deportation and denaturalization cases]. (Emphasis and comment supplied).
Addington v. Texas 441 U.S. 418, 428-424, 99 S.Ct. 1804, 1808, 60 LEd.2d 828 (1979). The Chief Justice continued in Addington by candidly admitting efforts to analyze what factfinders actually understand concerning the differences among these three tests "may well be largely an academic exercise...." Id., 441 U.S. at 424, 99 S.Ct. at 1808. Closing the subject, he added:
[Elven if the particular standard-of-proof catchwords do not always make a great difference in a particular case, adopting a "standard of proof is more than an empty semantic exercise." (citing cases) In cases involving individual rights, whether criminal or civil, "[the standard of proof [at a minimum] reflects the value society places on individual liberty." (Quotes and comments in original).
Addington, 441 U.S. at 425, 99 S.Ct. at 1809.
The time-honored right of parents to establish a home and raise their children is protected by the Fourteenth Amendment to the United States Constitution. Parental rights, however, may be terminated not only in situations where the child is in immediate danger of losing its life, but also where the child's emotional and physical development are threatened. This is a graduated yardstick according to which the particulars of a case must be measured. In so doing, the trial court must subordinate the interests of the parent to those of the children involved. Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ot. 571, 578, 69 LEd. 1070 (1925) Egly v. Blackford County DPW (1992), Ind., 592 N.E.2d 1282, 1234; Matter of Tucker (1991), Ind.App., 578 N.E.2d 774, T78-179, trans. denied. Before a court may terminate constitution*598ally-protected parental rights, a DPW must prove each required allegation of the termination statute, IND. CODE 81-6-5-4, by "clear and convincing" evidence. Matter of Tucker, 578 N.E.2d at 776-777.
Just as the burden of proof below is substantially enhanced when, as here, constitutional rights and liberties are put at civil risk, the standard of review at the appellate level is correspondingly more stringent. We, too, are to have in mind "'the value society places" on individual constitutional rights in such cases. Because constitutional rights are here involved, we must in our review determine whether the proof below rose to the "clear and convincing" level required as a matter of law in such cases. Our query is whether substantial "clear and convincing" evidence was presented below which supports the trial court's judgment. This question goes not to the burden of proof because weighing the evidence is the exclusive province of the factfinder. It goes to the quality and nature of the evidence upon which the judgment below is based in such cases. Woodby v. INS, 385 U.S. 276, 87 S.Ct. 483, 487, 17 L.Ed.2d 362 (1966).
In Indiana, we have a two-tiered standard of review when determining sufficiency of the evidence to support a judgment:
Determining whether the evidence is sufficient requires both a quantitative and qualitative analysis ... Quantitatively, evidence may fail only if it is absent, that is only where there is none at all. Qualitatively, however, it fails when it cannot be said reasonably that the intended inference may logically be drawn therefrom. The failure of inference may occur as matter of law when the intended inference can rest on no more than speculation or conjecture.
Carbo, Inc. v. Lowe (1988), Ind.App., 521 N.E.2d 977, 980, trans. denied. Carbo involved only a negligence case between private parties. I believe it necessary to restate this standard of review within the context of this case, as follows:
When a civil case involves the forfeiture of an individual's constitutionally-protected parental rights, we review to determine whether the evidence supporting each statutorily-required element of the state's case
(a) was quantitatively present, and, if so,
(b) was of a "clear and convincing" quality rather than evidence which merely preponderates.
Because I believe it readily apparent none of the evidence supporting the trial court's judgment terminating Carolyn's parental rights rises to the qualitative level of "clear and convincing" as a matter of law, reversal of the trial court is required in Carolyn's case, in my opinion.
Clearly, the trial court based its decision almost wholly upon the opinions of the DPW's social worker and psychologist witnesses. The substance of that testimony was (a) Carolyn had failed to attend parenting classes, (b) she probably would never be able to parent, and (c) without notice to anyone, she secretly re-married and left the area. Even when she returned, she did not immediately notify DPW of her whereabouts or inquire about the well-being of her children until seven months later. Her children were then 7 and 8 and it had been three years since they last saw or heard from Carolyn, and she had lived in 5 different residences in the year preceding the termination hearing.
In all the DPW's evidence quantitatively, however, there is not even a hint, let alone an inference, these children would be in physical or emotional danger if they were in Carolyn's and her present husband's custody. (R. 344, 981-983). Thus, the linchpin of parental right termination is missing in this case. Egly, 592 N.E.2d at 1234. The expert opinion advanced and relied upon below, in the context of a parental rights termination proceeding, is flawed and internally inconsistent, le., it is not "clear and convincing" as a matter of law.
One of DPW's expert opinions that Carolyn would never be able to "parent" was based on an examination done in 1987, some 5 years before trial without follow-up by the testifying psychologist. To the contrary, another psychologist who examined Carolyn in 1991 testified she would pose no physical danger to her children, had the *599capacity to form an emotional bond with her children, and could adequately learn parenting. (R. 1268, 1265).
In August of 1991, Carolyn encountered her children at a McDonald's in Ft. Wayne. The girls begged her to accompany them to a Show Biz Pizza restaurant, which she did. According to Carolyn's unrefuted testimony, the children appeared to enjoy this visit; they hugged and kissed her, and told her that they loved her. (R. 846-850). A DPW caseworker testified the children appeared to be in the best emotional and mental state in which she had ever seen them. (R. 658).
From my review of this record, it appears to me the trial court terminated Carolyn's parental rights based almost wholly upon expert psychological opinion which under the peculiar circumstances of this case borders on guesswork and speculation. At most, DPW's alternative would provide the children a better place to live. That is not the test in Egly.
Further, the DPW's evidence is not "clear and convincing" as a matter of law because it is internally inconsistent. Some of its witnesses believe Carolyn can "parent," others not. The undisputed facts indicate Carolyn's children love her and want to be in her company. To terminate parental rights simply because some government experts opine an individual is incapable of "parenting" without more, has an Orwellian connotation utterly inconsistent with our constitutional approach to such matters.
Without question, in my opinion, this evidence does not meet the Egly standard for termination of parental rights, and is not "clear and convincing" as a matter of law. The trial court's judgment as to Carolyn's parental rights should be reversed and this case remanded for a new trial as to her.