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This Case Law Update Provided by:
The Children’s Law Center of Indiana

Termination of Parental Rights

2/20/02
In Re E.S
., 762 N.E.2d 1287 (Ind. Ct. App. 2002)

In In Re E.S., 762 N.E.2d 1287 (Ind. Ct. App. 2002), the Court reversed the trial court’s
judgment terminating the parental rights of the mother and her eight year old daughter. The
Court found there was insufficient evidence to support the finding that (1) conditions which
led to the removal of the child would not be remedied, and that (2) maintaining the parent-
child relationship posed a threat to the child’s well being.
The child was removed from the mother’s care due to recurrent head lice, poor school
performance, and poor personal hygiene and appearance. Mildly mentally handicapped and
socially delayed, she was placed in therapeutic foster care. The child became increasingly
aggressive and was hospitalized for psychiatric treatment. Upon release, she was placed in a
different foster home and began seeing a new therapist. After another inpatient hospital
treatment, she was released and put on Risperdal, an anti-psychotic medication. The foster
mother noted a complete change for the better in the child’s behavior after she began taking
the Risperdal.
The mother admitted to the allegations in the CHINS petition. The trial court terminated
mother’s visitation rights due to the child’s deteriorating behavior following previous visits.
Additionally, it ordered that services be suspended until visitation was resumed. While DFC
did not require the mother to participate in services nor offer her any services, mother
continued in counseling and sought parenting classes on her own. The child’s therapist did
not make a recommendation that visitation resume. The trial court determined that if
visitation was not recommended to resume within six months, then the court would authorize
the DFC to file a petition terminating mother’s parental rights. After six months, there was
still no recommendation that visitation be resumed, and DFC filed the termination petition.
The trial court granted the petition after a fact-finding hearing. The mother appealed.

The evidence was insufficient to support the finding that conditions which resulted in
the child’s removal or continued placement outside of the mother’s care would not be
remedied; DFC failed to monitor mother’s progress.
While DFC did not mandate or offer
services to mother, she actively sought assistance on her own. She attended counseling and
excelled in parenting classes, according to her instructor. The DFC did not monitor her
progress in any of these programs. According to the Court, the trial court’s decision to
terminate mother’s parental rights was not based on mother’s inadequacies, but on the
extraordinary needs of the child. In Re E.S. at 1291. There was no clear and convincing
evidence that the conditions which resulted in the child’s removal and continued placement
outside the home would not be remedied.

The evidence was insufficient to support the finding that the continuation of the parent-
child relationship posed a threat to the well being of the child; absent visitation from
the mother, child’s improvement in behavior could be ascribed to a number of different

Copyright 2003 CLCI All Rights Reserved This Case Law Update Provided by:
The Children’s Law Center of Indiana

factors.
The Court noted that under I.C. 31-35-2-4(b)(2), the trial court’s termination order
could be upheld if there was sufficient evidence to prove that continuation of the parent-child
relationship posed a threat to the well-being of the child, even if there was insufficient
evidence to prove that the conditions which led to the child’s removal would not be
remedied. Id. However, the Court agreed with the mother that the trial court’s conclusion that
continuation of the parent-child relationship posed a threat to the well being of the child was
premature. While the child’s behavior improved after the mother’s visitation rights were
terminated, the child, during this period, had also changed foster homes, changed therapists
and therapy methods, and had begun a prescription of psychotropic drugs. Her improved
behavior could have been the result of any of these factors. Because visitation was never
reintroduced, there was insufficient evidence to prove that maintaining the parent-child
relationship posed a threat to the well being of the child. Id. The Court noted the CASA’s
statement to the same effect: Without at least one visitation, how will anyone ever know if
reunification is possible? Id. Because of the changes that occurred in the child’s treatment at
around the same time visitation was terminated and the fact that visitation was never
reintroduced, the Court found insufficient evidence to conclude that maintaining the parent-
child relationship posed a threat to the child. Id. at 1292.
Copyright 2003 CLCI All Rights Reserved

Source: http://www.kidsvoicein.org/documents/Termination/Updates/18.pdf

Doi:10.1016/j.phrs.2003.10.012

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