ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
MARK SMALL TONJA V. KINDER
Indianapolis, Indiana Indianapolis, Indiana
JANICE L. STEVENS LORETTA A. OLEKSY
Indianapolis, Indiana Indianapolis, Indiana
COURT OF APPEALS OF INDIANA
IN RE THE MATTER OF THE INVOLUNTARY )
TERMINATION OF THE PARENT-CHILD )
RELATIONSHIP OF T.F. AND E.F., MINOR )
CHILDREN, AND THEIR MOTHER, KATHERINE )
FERBERT, AND THEIR FATHER, MONTY FERBERT )
KATHERINE FERBERT and MONTY FERBERT, )
vs. ) No. 49A02-0008-JV-487
MARION COUNTY OFFICE OF FAMILY )
AND CHILDREN, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Charles J. Deiter, Special Judge
Cause No. 49D08-9810-JT-471
February 5, 2001
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Appellants-Respondents, Monty Ferbert (Monty) and Katherine Ferbert (Katherine) (hereinafter referred to collectively as
Ferberts), appeal the trial courts involuntary termination of their parental relationship with their
natural children, T.F. and E.F.
The Ferberts raise three issues for our review, which we consolidate and restate
1. Whether the Ferberts due process rights were violated because they were not provided
with a case plan concerning their children during the CHINS proceedings, resulting in
a deprivation of procedural due process rights in the termination proceedings.
2. Whether there was sufficient evidence to support the involuntary termination of the Ferberts
parental rights under Ind. Code § 31-35-2-4(b)(2).
FACTS AND PROCEDURAL HISTORY
Katherine and Monty Ferbert are the biological parents of E.F., born March 19,
1997, and T.F., born January 31, 1994. On March 19, 1997, the
Ferberts came to the attention of the Marion County Office of Family and
Children (MCOFC) when Monty broke a sleep apnea monitor and called the police
because E.F. was having trouble breathing. Neglect was substantiated at this time,
however, the children were allowed to remain with the Ferberts, and they entered
into a Services Referral Agreement with the MCOFC.
On October 4, 1997, the children were removed from the Ferberts home because
Monty struck E.F. in the mouth with a closed fist, threw the baby
down, and struck him again. The Indianapolis Police Department was called, and
the police arrived at the home to find the house in total disarray
and unclean. Based upon the statement of several witnesses on the scene,
Monty was arrested and charged with two counts of battery, three counts of
neglect of a dependent,
and criminal recklessness. Monty pleaded guilty to battery,
and was placed on probation. A criminal no contact order with his
children was a condition of his probation.
As a result of Monty beating E.F., the criminal neglect of the children,
the Ferberts inability to properly care for the children, the uncleanliness of their
home, their failure to meet the requirements of the Services Referral Agreement, and
their denial of the beating of E.F., a CHINS petition was filed on
October 9, 1997. Following a trial on January 20, 1998, T.F. and
E.F. were found to be CHINS and the trial court proceeded to disposition
on February 24, 1998, placing T.F. and E.F. in foster care pursuant to
the dispositional decree.
As a result of the CHINS proceedings, the Ferberts were provided a Participation
Decree, outlining several services they were required to complete in order to attain
reunification with their children. However, several Case Managers assigned to the case
testified that Katherine refused to separate from Monty in light of the no
contact order, their home remained filthy and unsafe for the children, and the
Ferberts failed to complete the services required of them. Therefore, on September
8, 1998, the MCOFC filed a petition to involuntarily terminate the Ferberts parental
rights to their children. Evidence was heard on January 10, 2000, January
27, 2000, and April 7, 2000. On April 24, 2000, the trial
court issued its Order Terminating the Parent-Child Relationship. Additional facts will be
supplied when necessary.
The Ferberts now appeal.
DISCUSSION & DECISION
Procedural Due Process
First, the Ferberts argue that the MCOFC failed to provide them with a
case plan for their children following the CHINS determination. Specifically, the Ferberts
contend that procedural irregularities in the CHINS proceedings deprived them of their procedural
due process rights in the termination proceedings.
Indiana Code Chapter 31-34-15 governs case plans in CHINS proceedings. Specifically, Ind.
Code § 31-34-15-1 provides that a case plan is required for each child
in need of services who is under the supervision of the county. .
., while section 31-34-15-2 states that [t]he county office of family and children,
after negotiating with the childs parent, guardian, or custodian, shall complete a childs
case plan not later than sixty (60) days after the date of the
childs first placement, or the date of a dispositional decree, whichever comes first.
Further, Ind. Code § 31-34-15-3 states that [a] copy of the completed
case plan shall be sent to the childs parent, guardian, or custodian not
later than ten (10) days after the plans completion. Finally, Ind. Code
§ 31-34-15-4 provides in relevant part that [t]he case plan must include a
description and discussion of . . . [a] permanent plan for the child
and an estimated date for achieving the goal of the plan, [and] [t]he
appropriate placement for the child based on the childs special needs and best
Specifically, the Ferberts claim that the MCOFCs failure to provide them with a
case plan following the CHINS determination, to delineate a permanent plan for their
children and an estimated date for achieving the goal of the plan, was
a procedural irregularity of the CHINS proceedings, nullifying the CHINS determination, and thereby
rendering the termination determination void. We disagree.
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). Choices about marriage, family life, and the upbringing of children are
among associational rights the United States Supreme Court has ranked as of basic
importance in our society and are rights sheltered by the Fourteenth Amendment against
the State's unwarranted usurpation, disregard, or disrespect. M.L.B. v. S.L.J., 519 U.S.
102, 116-17, 117 S.Ct. 555, 564, 136 L.Ed.2d 473 (1996). A case
involving the State's authority to permanently sever a parent-child bond demands the close
consideration the Supreme Court has long required when a family association so undeniably
important is at stake. Id.
The nature of the process due in parental rights termination proceedings turns on
a balancing of the "three distinct factors" specified in Mathews v. Eldridge, 424
U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976): the
private interests affected by the proceeding; the risk of error created by the
State's chosen procedure; and the countervailing governmental interest supporting use of the challenged
procedure. Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 1395,
71 L.Ed.2d 599 (1982). Finally, we must keep in mind the general
proposition that if the State imparts a due process right, then it must
give that right. City of Mitchell v. Graves, 612 N.E.2d 149, 152
(Ind. Ct. App. 1993).
The Ferberts argue that because the MCOFC violated their due process rights by
failing to follow the statutory procedures of a CHINS proceeding, the trial courts
termination determination is void. The Ferberts rest their argument on our holding
in A.P. v. Porter County Office of Family and Children, 734 N.E.2d 1107,
1112-1113 (Ind. Ct. App. 2000), rehg denied, that procedural irregularities in a CHINS
proceedings may be of such import that they deprive a parent of procedural
due process with respect to the termination of his or her parental rights.
Id. at 1113.
In that case, we reasoned that the CHINS and involuntary termination statutes are
not independent of each other, and in fact, Ind. Code § 31-35-2-2
states that an involuntary termination proceeding is governed by the procedures prescribed by
the CHINS statutes contained in Indiana Code Article 31-34.
Id. at 1112.
However, we also found that although termination proceedings are governed by the
CHINS statutes, Ind. Code § 31-35-2-2 clearly states that termination proceedings are distinct
from CHINS proceedings. Id. Moreover, we stated that:
Our supreme court has concluded that CHINS proceedings are distinct from involuntary termination
proceedings in that a CHINS cause of action is separate from and does
not necessarily lead to a termination cause of action. State ex. rel.
Gosnell v. Cass Cir. Court, 577 N.E.2d 957, 958 (Ind. 1991). Moreover,
a CHINS intervention in no way challenges the general competency of a parent
to continue a relationship with his or her child, and a termination proceeding
is thus of much greater magnitude as to the rights of the parties
involved. Id. Also, an involuntary termination of parental rights can occur
only after a child has been removed from his or her parent for
six months under a CHINS (or juvenile delinquency) dispositional decree, or after a
court has made an express determination that reasonable efforts for family preservation or
reunification are not required pursuant to Indiana Code Section 31-34-21-5.6, or after the
child has been removed from his or her parent for at least fifteen
of the most recent twenty-two months. I.C. § 31-35-2-4.
Therefore, although termination proceedings and CHINS proceedings have an interlocking statutory scheme because
involuntary termination proceedings are governed by the CHINS statutory procedures, CHINS proceedings are
separate and distinct from involuntary termination proceedings because a CHINS cause of action
does not necessarily lead to an involuntary termination cause of action. However,
in order for an involuntary termination determination to be made, it is necessary
that the statutory CHINS procedures have been properly followed. Thus, in A.P.
we held that:
Those three alternative prerequisites to involuntary parental rights termination can only be met
through compliance with the CHINS or juvenile delinquency statutes. . . . It
would be incongruous to hold that a county, with the assistance of a
juvenile court, may commence CHINS proceedings for a child and remove a child
from his or her home, yet disregard various portions of the CHINS and
termination statutes on several occasions and still terminate parental rights following the passage
of time after a CHINS dispositional decree and a child's removal from the
Id. at 1112-1113 (emphasis supplied).
II. Sufficient Evidence for Involuntary Termination
Nevertheless, we find the facts of that case distinguishable from the case at
hand. First, in A.P., although no case plans were made part of
the courts record prior to the termination hearing, the appellate record contained nine
case plans. Id. at 1113. However, in our case, the record
does not contain a case plan, thus the record does not reflect whether
a case plan was ever prepared or whether the Ferberts were ever provided
with a copy of a case plan. Therefore, in A.P. we had
the opportunity to analyze the case plan concurrently with the original dispositional order
and the multiple review hearing orders to determine whether the parents were properly
notified of their right to know what conduct could lead to the termination
of their parental rights. In fact, in A.P. we found that the
original dispositional order and the multiple review hearing orders provided some written notice
to the parents, however, the case plans often contained requirements not contained in
the court orders. Id. at 1114. Therefore, in A.P. we held
that the difference in requirements between the case plans and the court orders
heightened the importance of providing copies of case plans to the parents.
Next, in A.P. we analyzed at least seven clear and substantial procedural irregularities
including the fact that the Office of Family and Children admittedly failed to
provide the parents with copies of the case plans as required by Ind.
Code § 31-34-15. Moreover, after analyzing each procedural irregularity and its effect,
we specifically noted that:
we are not convinced that any one of the above irregularities by itself
substantially increased the risk of error in the termination proceeding to the extent
that appellants were deprived of due process, there is such an inherent risk
of error because of the multiplicity of procedural irregularities.
Id. at 1118. Therefore, unlike the case at hand, in A.P. we
analyzed a record replete with procedural irregularities throughout CHINS and termination proceedings that
are plain, numerous, and substantial, Id. at 1118, thereby reversing a termination judgment
as a result of procedural due process errors.
Finally, in holding that the multiplicity of clear and substantial procedural errors relating
to the CHINS and termination proceedings deprived the parents of their due process
rights in A.P., we specifically noted that we are not adding an additional
element to those that an agency seeking to terminate parental rights must prove
by clear and convincing evidence as exclusively set forth in Ind. Code §
31-35-2-4. Id. Although the record here fails to afford us with
evidence of whether the MCOFC or the trial court failed to follow statutory
mandates to provide the Ferberts with a case plan, we do not wish
to add an element of providing a case plan to those that an
agency must prove by clear and convincing evidence under Ind. Code § 31-35-2-4
in order to terminate parental rights.
Therefore, unlike A.P., in the case at hand, there was no case plan
contained in the record for us to analyze concurrently with court orders to
determine whether a difference in requirements existed to deprive the Ferberts of their
due process right of notice as to what conduct on their part could
lead to the termination of their parental rights.
But, the record is replete with evidence that the Ferberts were provided with
notice of what conduct could lead to a termination of their parental rights.
Moreover, in our case, the record did not contain a multitude of
procedural errors to compel us to reverse the trial courts termination determination.
In fact, in A.P. we specifically noted that we were not convinced that
any one irregularity created a substantial risk of error in the termination proceeding
to deprive the appellants of their due process rights. Therefore, this courts
holding in A.P. does not stand for the proposition that one procedural irregularity
in and of itself, without a multitude of other clear and substantial procedural
irregularities, is enough to deprive a parent of his due process rights, resulting
in a reversal of the termination determination.
Specifically, the record indicates that following the CHINS determination, the Ferberts were provided
with a Predispositional Report (R. 464) and a Parental Participation Decree (R. 466,
467) that outlined the requirements the Ferberts needed to complete that would allow
their children to be returned to them. However, following a Dispositional Hearing
and a Placement Review Hearing, the trial court determined that reasonable services were
offered and made available to the Ferberts to prevent or eliminate the need
for removal of their children, but such services were either not effective or
not completed to allow the children to be returned home. Thus, the
trial court ordered the children to be wards of the MCOFC and terminated
the Ferberts parental rights.
Therefore, because proof of a case plan is not an element enunciated in
the termination proceedings under Ind. Code § 31-35-2-4, the record of the CHINS
proceedings is not before this court in order for us to examine whether
a case plan was prepared and provided to the Ferberts. The record
in this case does not reflect a multitude of procedural irregularities but only
an allegation of one procedural error, and the record indicates that the Ferberts
were given adequate notice of what conduct on their part could lead to
their children being returned to them. The Ferberts have failed to establish
that a procedural irregularity has deprived them of their due process rights.
In reviewing termination proceedings on appeal, this court will not reweigh the evidence
nor assess the credibility of witnesses. Egly v. Blackford County Dept. of
Public Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We consider only the
evidence that supports the trial court's decision and the reasonable inferences drawn from
that evidence. Id. In deference to the trial court's unique position
to assess the evidence, we set aside the judgment terminating a parent-child relationship
only if it is clearly erroneous. Id. If the evidence and
inferences support the trial court's decision, we must affirm. Id.; see also
Matter of Adoption of D.V.H., 604 N.E.2d 634, 637 (Ind. Ct. App. 1992),
The involuntary termination of parental rights is the most extreme sanction a court
can impose. Matter of D.G., 702 N.E.2d 777, 780 (Ind. Ct. App.
1998). Termination severs all rights of a parent to his or her
children. Id. at 781. Therefore, termination is intended as a last
resort, available only when all other reasonable efforts have failed. Id.
This policy is in recognition of the constitutional rights of the parents to
the custody of their children and the State's authority to interfere with this
right only in certain limited circumstances. Id. The Fourteenth Amendment to
the United States Constitution protects a parent's right to establish a home and
raise his children, but these protected interests are not absolute and must be
subordinated to the children's interest in determining the appropriate disposition of a petition
to terminate the parent-child relationship. Id.
The purpose of terminating parental rights is not to punish parents but to
protect their children. Matter of A.N.J., 690 N.E.2d 716, 720 (Ind. Ct.
App. 1997). Although parental rights are of a constitutional dimension, the law
allows for the termination of those rights when parties are unable or unwilling
to meet their responsibility as parents. Id. Parental rights are not
absolute and must be subordinated to the child's interests when deciding whether to
terminate parental rights pursuant to Ind. Code § 31-35-2-4(b)(2). Termination of parental
rights is proper where the children's emotional and physical development is threatened.
Matter of A.M., 596 N.E.2d 236, 238 (Ind. Ct. App. 1992), trans. denied.
The trial court need not wait until the children are irreversibly harmed
such that their physical, mental, and social development is permanently impaired before terminating
the parent-child relationship. J.L.L. v. Madison County Dept. of Public Welfare, 628
N.E.2d 1223, 1227 (Ind. Ct. App. 1994).
To effect the involuntary termination of a parent-child relationship, the MCOFC must present
clear and convincing evidence to establish the elements of Ind. Code § 31-35-2-4(b)(2):
(A) one (1) of the following exists:
(i) the child has been removed from the parent for at least six
(6) months under a dispositional decree;
(ii) a court has entered a finding under IC 31-34-21-5.6 that reasonable efforts
for family preservation or reunification are not required, including a description of the
court's finding, the date of the finding, and the manner in which the
finding was made; or
(iii) after July 1, 1999, the child has been removed from the parent
and has been under the supervision of a county office of family and
children for at least fifteen (15) months of the most recent twenty-two (22)
(B) there is a reasonable probability that:
(i) the conditions that resulted in the child's removal or the reasons for
placement outside the home of the parents will not be remedied; or
(ii) the continuation of the parent-child relationship poses a threat to the well-being
of the child;
(C) termination is in the best interests of the child; and
(D) there is a satisfactory plan for the care and treatment of the
child.A. Ind. Code § 31-35-2-4(b)(2)(B)
The Ferberts argue that there is insufficient evidence to support the involuntary termination
of their parental rights. The Ferberts contend that the State failed to
prove by clear and convincing evidence that the conditions causing the removal of
their children were not likely to be remedied or that the continuation of
the parent-child relationship posed a threat to the childrens well-being. Specifically, the
Ferberts assert that the majority of the States witnesses testified positively in their
favor, or did not have an adequate basis to testify regarding the Ferberts
home condition or their interaction with their children. Essentially, the Ferberts invite
us to reweigh the evidence and judge the credibility of the witnesses.
This we will not do.
The trial court found that the parent-child relationship between the Ferberts and their
children should be terminated; that the children were found to be CHINS; that
the children had been removed from the Ferberts home for at least six
(6) months under a dispositional decree; there was a reasonable probability that the
conditions that resulted in the removal of the children would not be remedied,
that the reasons for continued placement of the children outside the Ferberts home
would not be remedied and that the continuation of the parent-child relationship poses
a threat to the well being of the children; that termination of the
parent-child relationship was in the best interests of the children; and the MCOFC
has a satisfactory plan for the care and treatment of the children.
The Ferberts do not dispute that there was sufficient evidence to support the
first and fourth elements for termination; that their children had been removed from
them for at least six (6) months, and that there is a satisfactory
plan for the care and treatment of T.F. and E.F. However, the Ferberts
do dispute the sufficiency of the evidence for the two parts of the
second element of the termination statute. Nevertheless, the termination statute requires the
MCOFC to demonstrate a reasonable probability that either the conditions that resulted in
the childrens removal will not be remedied or that the condition of the
parent-child relationship posed a threat to the childrens well-being. The trial court
specifically found that there was a reasonable probability that the conditions that resulted
in the removal of T.F. and E.F. would not be remedied, and there
is sufficient evidence in the record to support the trial courts conclusion.
It was not necessary for the MCOFC to prove or for the trial
court to find that the continuation of the parent-child relationship posed a threat
to the children.
To determine whether the conditions are likely to be remedied, the trial court
must judge a parent's fitness to care for the child as of the
time of the termination hearing, taking into account any evidence of changed conditions.
Wardship of J.C. v. Allen County Office of Family and Children, 646
N.E.2d 693, 694 (Ind. Ct. App. 1995), rehg denied, trans. denied. The court
must also consider the parent's pattern of conduct to determine whether there is
a substantial probability of future neglect or deprivation of the children. Id.
Here, the evidence reveals that the Ferberts most serious deficiencies in their ability
to care for their children were: 1) their continued and consistent denial that
Monty was responsible for striking E.F., resulting in his arrest for two counts
of battery, three counts of child neglect and criminal recklessness, 2) the unsafe
and life endangering condition that Katherine placed on the children by continuing to
cohabitate with Monty in light of a no contact order with the children,
and 3) the uncleanliness of their home and their repeated failure to demonstrate
a safe and clean home environment.
First, on October 4, 1997, the Indianapolis Police Department was called to the
Ferberts home. When the police arrived, they observed a six month old
male infant bleeding from the mouth with noticeable swelling. The police noted
that the home was in complete disarray and an endangerment to the children.
Specifically, there were dirty dishes, bottles and trash scattered throughout the house,
and the home had a distinct foul odor. Moreover, the police observed
a three year old female with bruises and insect bites all over her
body. After treatment at the hospital, the child was found to have
body and head lice. The police further observed another six month old
male infant in a bassinet unattended and exhibiting poor hygiene. The police
interviewed several witnesses at the scene in reference to Monty striking E.F., stating
that they observed Monty repeatedly cursing and striking the infant with a closed
fist. Thereafter, Monty chased the witnesses down the street cursing and waving
a knife. Monty was arrested at the scene for two counts of
battery, three counts of child neglect, and criminal recklessness. On October 7,
1997, the Case Manager, Amy Goodwin, received a telephone call from Katherine, explaining
that she was not at home when E.F. was struck, but that she
would support her husband due to his mental instability.
At trial Monty did not accept responsibility or acknowledge that he struck E.F.
In fact, even though he pleaded guilty to battering E.F., at trial
Monty stated that a criminal gang had thrown a rock through the window
injuring E.F. Moreover, at trial Katherine refused to believe that Monty struck
E.F., and instead believed Montys story. Therefore, the Ferberts continued denial of
Montys responsibility for striking and endangering their children is evidence that they refuse
to believe that Monty presents a danger and further risk to the children.
Next, Katherine acknowledged in her testimony that she was aware her children could
not be returned to her home while she was cohabitating with Monty because
of the no contact order, however, she continued to live with Monty.
Moreover, although she stated that she would be willing to separate from Monty
if the children were placed in her care, her pattern of conduct does
not support her willingness to do so. Therefore, Katherines pattern of conduct
indicates that she is unwilling to refrain from living with Monty in light
of a court ordered no contact order as a result of Montys criminal
battery of E.F.
Finally, the Ferberts have failed to demonstrate an ability to provide their children
with a safe, clean home environment despite the trial courts Predispositional Report recommendation
to maintain safe, stable, and sanitary housing with functioning utilities and an appropriate
supply of nutritious food for the children placed in her home by this
Agency. (R. 464). However, the Ferberts home remained cluttered and filthy for
a period of thirteen (13) months despite constant prompting from the home based
counselor. Moreover, in September of 1999, the home based counselors progress report
indicated that the Ferberts had had plenty of time to clean their house,
but their home was not acceptable or safe for the return of the
children. Nevertheless, in November 1999, there was an extreme improvement in the
cleanliness of the first level of the Ferberts home, however, in January 2000,
Katherine denied the case manager access to the house due to its uncleanly
condition. Therefore, the Ferberts ignored and failed to provide a safe and
clean environment for their children in direct violation of court orders.
Recognizing our deferential standard of review, we find that this evidence supports the
trial courts finding that there is a reasonable probability that the conditions that
resulted in the childrens removal will not be remedied.
B. Ind. Code § 31-35-2-4(b)(2)(C)
The Ferberts also argue that the State failed to show by clear and
convincing evidence that the termination of their parental rights was in their childrens
best interests. We are mindful that the MCOFC must present clear and
convincing evidence for all four elements of Ind. Code § 31-35-2-4(b)(2), including evidence
that termination is in the best interests of the children.
We are also mindful that in determining what is in the best interests
of the children, the court is required to look beyond the factors identified
by the office of family and children, and to look to the totality
of the evidence. J.K.C. v. Fountain County Dept. of Public Welfare, 470
N.E.2d 88, 92 (Ind. Ct. App. 1984). In so doing, the trial
court must subordinate the interests of the parents to those of the children
involved. Id. at 93. However, the trial court need not wait
until the children are irreversibly influenced such that their physical, mental and social
growth is permanently impaired before terminating the parent-child relationship. Id.
We find that the record contains sufficient evidence that termination of the Ferberts
parental rights is in the best interests of T.F. and E.F. The
childrens Guardian ad Litem and the Family Case Manager testified that reunification with
the Ferberts was not in the childrens best interests because the Ferberts had
not demonstrated an ability to effectively use the services recommended to them to
properly care for their children. Moreover, Katherines refusal to separate from Monty
in spite of her knowledge of the no contact order is a decision
which fails to place the best interests of her children before her own
Recognizing that the trial court listened to the testimony of all the witnesses,
observed their demeanor, and judged their credibility, as a reviewing court, we must
give proper deference to the trial court. Accordingly, we hold that the
trial court was justified in concluding that the MCOFC proved by clear and
convincing evidence that the Ferberts parental rights should be terminated.
Based on the foregoing, we conclude that the Ferberts due process rights were
not violated and there was sufficient evidence to support the involuntary termination of
the Ferberts parental rights under Ind. Code § 31-35-2-4(b)(2).
DARDEN, J., concurs.
ROBB, J., concurs with opinion.
COURT OF APPEALS OF INDIANA
IN RE THE MATTER OF THE INVOLUNTARY )
TERMINATION OF THE PARENT-CHILD )
RELATIONSHIP OF T.F. AND E.F., MINOR )
CHILDREN, AND THEIR MOTHER, )
KATHERINE FERBERT, AND THEIR FATHER, )
MONTY FERBERT )
KATHERINE FERBERT and MONTY FERBERT, )
vs. ) No. 49A02-0008-JV-487
MARION COUNTY OFFICE OF FAMILY )
AND CHILDREN, )
I respectfully concur, but write separately to express concerns about the growing interplay
between CHINS proceedings and proceedings to terminate parental rights. I agree that
these are two separate proceedings. However, recent legislative changes have expedited the
time guidelines for bringing a termination action after a CHINS has been established.
At some point, should the absolute minimum time limits be followed in
bringing a termination
proceeding, the lack of a case plan could be so egregious as to
affect a partys due process rights. However, the record before us does
not indicate that the parties, in this case, were without knowledge of what
was expected of them. Therefore, they had fair warning that they were
not in compliance. For this reason, I believe the majority is correct.
Although Monty and Katherine filed separate briefs in this matter raising
slightly different arguments, in this opinion we have consolidated the issues they raise.
Footnote: At the time of this incident, the Ferberts third biological child,
E.F.s twin, lived in the home, but later died in foster care.
Footnote: Ind. Code § 31-35-2-2 is the statute that provides for the
law governing proceedings for the termination of the parent-child relationship involving a delinquent
child or a child in need of services.