In the Matter of the Involuntary Termination of the Parent-Child Relationship of N.G. (Minor Child), and N.R.G. (Mother) v. The Indiana Department of Child Services

FILED

Oct 06 2016, 7:59 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Laura M. Longstreet Gregory F. Zoeller

Longstreet Law, LLC Attorney General of Indiana

South Bend, Indiana

Robert J. Henke

Abigail R. Recker

Deputy Attorneys General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary October 6, 2016

Termination of the Parent-Child Court of Appeals Case No.

Relationship of N.G. (Minor 71A04-1602-JT-346

Child), Appeal from the St. Joseph Probate

Court

and The Honorable James N. Fox,

Judge

N.R.G. (Mother), Trial Court Cause No.

Appellant-Respondent, 71J01-1407-JT-111

v.

The Indiana Department of

Child Services,

Appellee-Petitioner

Crone, Judge.

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Case Summary

[1] N.R.G (“Mother”) appeals the termination of her parental relationship with her

daughter, N.G. She raises three issues, one of which we find dispositive:

whether the trial court’s findings of fact are sufficient to satisfy the statutory

mandate found in Indiana Code Section 31-35-2-8(c). Concluding that the trial

court’s findings of fact are deficient, we remand for proper findings that support

the judgment terminating Mother’s parental rights.

Facts and Procedural History

[2] In January 2013, four-year-old N.G. and her sixteen-year-old brother D.W.

were removed from the home of Mother and D.G.W. (“Father”) on a report of

physical abuse, stemming from an incident in which Father allegedly punched

D.W. in the face. Shortly thereafter, the St. Joseph County Department of

Child Services (“DCS”) filed a petition to have N.G. designated a Child in

Need of Services (“CHINS”). 1 The trial court entered an order designating

N.G. a CHINS and ordering services for both Mother and N.G., with a goal of

reunification.

[3] In July 2014, DCS filed a petition for termination of Mother’s parental

relationship with N.G. At the time of the petition, N.G. was residing in relative

1

Older brother D.W. was also designated a CHINS, but he is not a subject of the present termination order.

We limit our discussion accordingly.

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placement with her aunt (“Aunt”). At some point before the September 2015

final hearing, Aunt indicated that she could no longer keep N.G., and N.G. was

placed in a pre-adoptive foster home.

[4] In January 2016, the trial court issued an order terminating the parental

relationship between Mother and N.G. 2 The findings of fact and conclusions of

law are as follows:

[N.G.] is the biological child of [Mother];

[Father] is the biological father of [N.G.];

The parental rights of [Father] were previously terminated by this

Court;

That the Court found [N.G.] was a removed from the care of her

parents on January 17, 2013;

On February 6, 2013 the Court entered a dispositional decree;

In October of 2013 [N.G.] made new disclosures of sexual abuse

at the hands of a brother;

In October [M]other stopped complying with the dispositional

decree;

Mother stopped attending her individual therapy at that time,

and was no longer keeping in contact with FCM Martin.

In June of 2015 the Court ordered that [M]other’s visits be

changed to supervised therapeutic visits, as this was in the best

2

Father’s parental rights were previously terminated, and he is not participating in this appeal.

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interest of the child;

On July 20, 2014, DCS filed Mandatory Involuntary

Termination Petitions as [N.G.] had been out of the home for a

period of fifteen out of the most recent twenty-two months;

The child has made progress in therapy with the help of the foster

parents;

The Court finds that while [M]other has made some progress in

her own therapy, that [M]other’s trauma has posed significant

barrier to the ability to reunify [M]other and [the] child;

The Court finds that continuation of the parent child relationship

would pose a threat to the child;

The Court finds that it is in the best interest of the child that the

parent child relationship be terminated;

The Court notes that [sic] finds that adoption is a satisfactory

plan for the child.

The Court now finds that the Department of Child Services has

met the burden by presenting clear and convincing evidence that

the parent child relationship be terminated, and all rights powers,

privileges, immunities, duties and obligations, including the right

to consent to adoption, pertaining to that relationship are hereby

permanently terminated.

Appellant’s App. at 14-15.

[5] Mother now appeals.

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Discussion and Decision

[6] Mother maintains that the trial court’s findings of fact are deficient as entered.

In recognition of the seriousness with which we address parental termination

cases, Indiana has adopted a clear and convincing evidence standard of proof

and a clearly erroneous standard of review. See In re K.T.K., 989 N.E.2d 1225,

1230 (Ind. 2013) (requiring State to demonstrate by clear and convincing

evidence that child’s emotional and physical development are threatened by

parent’s continued custody); see also, Bester v. Lake Cnty. Office of Family &

Children, 839 N.E.2d 143, 147 (Ind. 2005) (emphasizing that reviewing court

may set aside trial court’s judgment only if it is clearly erroneous). Our review

for clear error requires that we determine first whether the evidence supports the

trial court’s findings and then whether the findings support the judgment. In re

E.M., 4 N.E.3d 636, 642 (Ind. 2014). This means that the trial court’s findings

of fact and conclusions of law are crucial to our review. Parks v. Delaware Cnty.

Dep’t of Child Servs., 862 N.E.2d 1275, 1280-81 (Ind. Ct. App. 2007). However,

where the findings of fact and conclusions of law are sparse or improperly

stated and do not adequately address each of the requirements of the

termination statute, 3 we cannot conduct an adequate review. Id. at 1281.

3

To obtain a termination of the parent-child relationship between Mother and N.G., DCS was required to

establish in pertinent part:

(A) that one (1) of the following is true:

(i) The child has been removed from the parent for at least six (6) months under a dispositional

decree.

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[7] In Parks, another panel of this Court held that where most of the trial court’s

findings were merely recitations of testimony rather than the adoption of that

testimony as fact, they were not proper findings. Id. at 1279, 1281. As such,

the Parks court emphasized that an appellate court is “not at liberty to scour the

record to find evidence to support the judgment” and remanded for proper

findings of fact and conclusions of law. Id. at 1280-81. When Parks was

decided, the trial court was not required to enter findings of fact and

conclusions of law in termination cases unless specifically requested by the

parties. Id. However, in 2012, the legislature amended Indiana Code Section

31-35-2-8 to read: “(c) The court shall enter findings of fact that support the

entry of the conclusions” terminating a parent-child relationship. (Emphasis

added.)

[8] Here, the trial court’s unnumbered findings and conclusions comprise little

more than one page. Appellant’s App. at 14-15. With respect to the

….

(B) that one (1) of the following is true:

(i) There is a reasonable probability that the conditions that resulted in the child’s removal or the

reasons for placement outside the home of the parents will not be remedied.

(ii) There is a reasonable probability that the continuation of the parent-child relationship poses

a threat to the well-being of the child.

(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;

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

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

Ind. Code § 31-35-2-4(b)(2).

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requirements for termination outlined in Indiana Code Section 31-35-2-4(b)(2),

the trial court made an ultimate finding that termination is in N.G.’s best

interests without any supporting facts, except to say that it was in N.G.’s best

interests that “Mother’s visits be changed to supervised therapeutic visits.” Id.

at 15. Similarly, the trial court made an ultimate finding concerning DCS’s

satisfactory plan of adoption (presumably by the foster parents), with only a

brief mention that N.G. “has made progress in therapy with the help of the

foster parents.” Id. Because N.G. had initially been placed in relative care with

Aunt, it would facilitate appellate review to indicate how long she had been

with the foster parents, especially given the implications for her stability and

best interests.

[9] The most fact-specific findings relate to Mother’s prospects for remedying the

conditions that led to N.G.’s removal. 4 Yet, there is no ultimate finding on the

reasonable probability of unremedied conditions. Instead, the trial court made

an ultimate finding that the “continuation of the parent child relationship

would pose a threat to the child.” Id. While the termination statute does not

require the trial court to find both a reasonable probability of unremedied

conditions and a threat to well-being, we note that the only finding supporting

the threat to N.G.’s well-being is not a finding at all because it merely recites

that N.G. “made new disclosures of sexual abuse at the hands of a brother.” Id.

4

These include references to Mother’s failure to comply with the dispositional decree or to complete therapy

and a finding that Mother’s unspecified “trauma has posed [a] significant barrier to the ability to reunify”

with N.G. Id.

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at 14. See Parks, 862 N.E.2d at 1279 (emphasizing that mere recitations of

testimony are not proper findings absent trial court’s adoption of testimony as

fact). The termination order gives no indication that the trial court ever

adopted or substantiated N.G.’s statements regarding the alleged sexual abuse.

[10] Simply put, the trial court’s findings are so sparse that we cannot discern

whether it based its termination order on proper statutory considerations. As

we are not at liberty to scour the record to find evidence to support the

judgment, we remand with instructions for the trial court to enter proper

findings of fact and conclusions of law to support the termination of Mother’s

parental rights.

[11] Remanded.

Kirsch, J., and May, J., concur.

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