MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), 08/28/2017, 10:25 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Catherine M. Brownson Curtis T. Hill, Jr. Coots, Henke & Wheeler, P.C. Attorney General of Indiana Carmel, Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination August 28, 2017 of the Parent-Child Relationship Court of Appeals Case No. of L.R. (Minor Child) 29A02-1704-JT-846 and Appeal from the Hamilton Superior Court T.S. (Mother) The Honorable Steven R. Nation, Appellant-Respondent, Judge
v. Trial Court Cause No. 29D01-1607-JT-855
The Indiana Department of Child Services, Appellee-Petitioner.
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 29A02-1704-JT-846 | August 28, 2017 Page 1 of 8 Case Summary [1] T.S. (“Mother”) appeals the termination of her parental rights upon the petition
of the Hamilton County Department of Child Services (“DCS”). Mother raises
the sole restated issue of whether there was sufficient evidence to terminate her
parental rights.
[2] We affirm.
Facts and Procedural History [3] Mother and C.R. (“Father”)1 had a son, L.R. (“Child”), who was born in
California on January 16, 2014. When Child was six weeks old, Mother was
arrested on a charge of burglary. Mother was convicted of the offense, which
she committed while six months pregnant with Child, and began serving a term
of imprisonment in California. At some point while Mother was incarcerated,
Father and Child moved to Indiana.
[4] In December 2014, when Child was eleven months old, DCS received a report
alleging that Father had physically abused Child. After substantiating the
allegations, DCS removed Child from Father’s home and filed a Child in Need
of Services (“CHINS”) petition on December 30, 2014. At the time, Mother
remained incarcerated. A few months later, Mother was released to parole,
1 Father consented to the termination of his parental rights and does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 29A02-1704-JT-846 | August 28, 2017 Page 2 of 8 which meant she could not leave California without permission. While on
parole, Mother requested that Child be placed with her in California.
[5] Following a fact-finding hearing on November 4, 2015, the trial court
adjudicated Child a CHINS. The trial court also held a hearing concerning
Mother’s request to place Child in California, which it denied. In denying
Mother’s request, the trial court determined that placement with Mother was
not in Child’s best interest at the time. The trial court specifically cited a lack of
pertinent information about Mother’s background and ability to care for Child.
[6] On December 11, 2015, a dispositional hearing was held, and the trial court
subsequently ordered Mother to participate in services. Among the ordered
services, Mother was to complete a parenting assessment and follow all
recommendations. Mother was also to attend all scheduled visitations with
Child and maintain weekly contact with the Family Case Manager (“FCM”).
[7] To facilitate reunification efforts, DCS explored the possibility of placing Child
with Mother in California by taking steps pursuant to an interstate compact.
However, Mother was denied the opportunity for interstate placement due to
her extensive criminal history, which includes a conviction for child cruelty.
[8] Mother completed the court-ordered parenting assessment, after which it was
recommended that she participate in weekly video calls with Child. To arrange
a call, Mother was to contact Child’s foster parents, who were flexible about
planning calls at times convenient to Mother. Over the ensuing months,
Mother participated in nine out of twenty-five potential video calls with Child,
Court of Appeals of Indiana | Memorandum Decision 29A02-1704-JT-846 | August 28, 2017 Page 3 of 8 missing opportunities because she did not schedule a call, cancelled without
rescheduling, or did not answer at the planned time. During this time, Mother
also failed to maintain contact with DCS.
[9] A permanency hearing was held on June 3, 2016, after which the trial court
discontinued services due to Mother’s inconsistent participation. The trial court
also changed the permanency plan to termination of the parent-child
relationship and adoption. Mother later filed a motion to modify the plan and
reinstate visitation, and the trial court scheduled a hearing on her motion. The
trial court twice rescheduled the hearing at Mother’s request, and when Mother
failed to appear at the eventual hearing, her motion was withdrawn.
[10] On July 13, 2016, DCS filed a petition to terminate Mother’s parental rights. A
permanency hearing was held on December 27, 2016, when Child was almost
three years old, at which Mother appeared telephonically. After the hearing,
the trial court entered an order terminating Mother’s parental rights.
[11] This appeal ensued.
Discussion and Decision [12] A petition to terminate parental rights must contain certain allegations that
DCS must then prove by clear and convincing evidence. See Ind. Code §§ 31-
35-2-4(b)(2), 31-37-14-2. If the trial court finds that those allegations are true,
then it is obligated to terminate the parent-child relationship. See I.C. § 31-35-2-
8(a). One such allegation is that “termination is in the best interests of the
Court of Appeals of Indiana | Memorandum Decision 29A02-1704-JT-846 | August 28, 2017 Page 4 of 8 child.” I.C. § 31-35-2-4(b)(2)(C). Here, Mother limits her argument to whether
DCS presented sufficient evidence to support this allegation.
[13] In determining whether it is in the best interests of a child, the trial court is
required to look to the totality of the evidence. McBride v. Monroe Cty. Office of
Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). “In so doing, the
trial court must subordinate the interests of the parents to those of the child[].”
Id. Moreover, “[t]he trial court need not wait until a child is irreversibly
harmed before terminating the parent-child relationship.” Id.
[14] We will set aside the judgment of the trial court only if it is clearly erroneous.
Ind. Trial Rule 52(A). In reviewing for clear error, we apply a two-tiered
standard of review—that is, we evaluate “whether the evidence clearly and
convincingly supports the findings” and whether “the findings clearly and
convincingly support the judgment.”2 In re I.A., 934 N.E.2d 1127, 1132 (Ind.
2010) (harmonizing the requirements of Trial Rule 52(A) and Indiana Code
section 31-37-14-2). In conducting our review, “we do not reweigh the
evidence or judge witness credibility.” Id. We consider only the evidence and
reasonable inferences that are most favorable to the judgment. Bester v. Lake
Cty.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), 08/28/2017, 10:25 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Catherine M. Brownson Curtis T. Hill, Jr. Coots, Henke & Wheeler, P.C. Attorney General of Indiana Carmel, Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination August 28, 2017 of the Parent-Child Relationship Court of Appeals Case No. of L.R. (Minor Child) 29A02-1704-JT-846 and Appeal from the Hamilton Superior Court T.S. (Mother) The Honorable Steven R. Nation, Appellant-Respondent, Judge
v. Trial Court Cause No. 29D01-1607-JT-855
The Indiana Department of Child Services, Appellee-Petitioner.
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 29A02-1704-JT-846 | August 28, 2017 Page 1 of 8 Case Summary [1] T.S. (“Mother”) appeals the termination of her parental rights upon the petition
of the Hamilton County Department of Child Services (“DCS”). Mother raises
the sole restated issue of whether there was sufficient evidence to terminate her
parental rights.
[2] We affirm.
Facts and Procedural History [3] Mother and C.R. (“Father”)1 had a son, L.R. (“Child”), who was born in
California on January 16, 2014. When Child was six weeks old, Mother was
arrested on a charge of burglary. Mother was convicted of the offense, which
she committed while six months pregnant with Child, and began serving a term
of imprisonment in California. At some point while Mother was incarcerated,
Father and Child moved to Indiana.
[4] In December 2014, when Child was eleven months old, DCS received a report
alleging that Father had physically abused Child. After substantiating the
allegations, DCS removed Child from Father’s home and filed a Child in Need
of Services (“CHINS”) petition on December 30, 2014. At the time, Mother
remained incarcerated. A few months later, Mother was released to parole,
1 Father consented to the termination of his parental rights and does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 29A02-1704-JT-846 | August 28, 2017 Page 2 of 8 which meant she could not leave California without permission. While on
parole, Mother requested that Child be placed with her in California.
[5] Following a fact-finding hearing on November 4, 2015, the trial court
adjudicated Child a CHINS. The trial court also held a hearing concerning
Mother’s request to place Child in California, which it denied. In denying
Mother’s request, the trial court determined that placement with Mother was
not in Child’s best interest at the time. The trial court specifically cited a lack of
pertinent information about Mother’s background and ability to care for Child.
[6] On December 11, 2015, a dispositional hearing was held, and the trial court
subsequently ordered Mother to participate in services. Among the ordered
services, Mother was to complete a parenting assessment and follow all
recommendations. Mother was also to attend all scheduled visitations with
Child and maintain weekly contact with the Family Case Manager (“FCM”).
[7] To facilitate reunification efforts, DCS explored the possibility of placing Child
with Mother in California by taking steps pursuant to an interstate compact.
However, Mother was denied the opportunity for interstate placement due to
her extensive criminal history, which includes a conviction for child cruelty.
[8] Mother completed the court-ordered parenting assessment, after which it was
recommended that she participate in weekly video calls with Child. To arrange
a call, Mother was to contact Child’s foster parents, who were flexible about
planning calls at times convenient to Mother. Over the ensuing months,
Mother participated in nine out of twenty-five potential video calls with Child,
Court of Appeals of Indiana | Memorandum Decision 29A02-1704-JT-846 | August 28, 2017 Page 3 of 8 missing opportunities because she did not schedule a call, cancelled without
rescheduling, or did not answer at the planned time. During this time, Mother
also failed to maintain contact with DCS.
[9] A permanency hearing was held on June 3, 2016, after which the trial court
discontinued services due to Mother’s inconsistent participation. The trial court
also changed the permanency plan to termination of the parent-child
relationship and adoption. Mother later filed a motion to modify the plan and
reinstate visitation, and the trial court scheduled a hearing on her motion. The
trial court twice rescheduled the hearing at Mother’s request, and when Mother
failed to appear at the eventual hearing, her motion was withdrawn.
[10] On July 13, 2016, DCS filed a petition to terminate Mother’s parental rights. A
permanency hearing was held on December 27, 2016, when Child was almost
three years old, at which Mother appeared telephonically. After the hearing,
the trial court entered an order terminating Mother’s parental rights.
[11] This appeal ensued.
Discussion and Decision [12] A petition to terminate parental rights must contain certain allegations that
DCS must then prove by clear and convincing evidence. See Ind. Code §§ 31-
35-2-4(b)(2), 31-37-14-2. If the trial court finds that those allegations are true,
then it is obligated to terminate the parent-child relationship. See I.C. § 31-35-2-
8(a). One such allegation is that “termination is in the best interests of the
Court of Appeals of Indiana | Memorandum Decision 29A02-1704-JT-846 | August 28, 2017 Page 4 of 8 child.” I.C. § 31-35-2-4(b)(2)(C). Here, Mother limits her argument to whether
DCS presented sufficient evidence to support this allegation.
[13] In determining whether it is in the best interests of a child, the trial court is
required to look to the totality of the evidence. McBride v. Monroe Cty. Office of
Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). “In so doing, the
trial court must subordinate the interests of the parents to those of the child[].”
Id. Moreover, “[t]he trial court need not wait until a child is irreversibly
harmed before terminating the parent-child relationship.” Id.
[14] We will set aside the judgment of the trial court only if it is clearly erroneous.
Ind. Trial Rule 52(A). In reviewing for clear error, we apply a two-tiered
standard of review—that is, we evaluate “whether the evidence clearly and
convincingly supports the findings” and whether “the findings clearly and
convincingly support the judgment.”2 In re I.A., 934 N.E.2d 1127, 1132 (Ind.
2010) (harmonizing the requirements of Trial Rule 52(A) and Indiana Code
section 31-37-14-2). In conducting our review, “we do not reweigh the
evidence or judge witness credibility.” Id. We consider only the evidence and
reasonable inferences that are most favorable to the judgment. Bester v. Lake
Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005).
2 Pursuant to Indiana Code section 31-35-2-8(c), a trial court must enter findings and conclusions when terminating a parent-child relationship.
Court of Appeals of Indiana | Memorandum Decision 29A02-1704-JT-846 | August 28, 2017 Page 5 of 8 [15] As an initial matter, Mother asks that we disregard certain evidence in our
sufficiency determination and directs us to certain testimony that she contends
was erroneously admitted. That testimony—to which Mother raised a hearsay
objection—related to the intervention of California child services with respect to
a different child of Mother’s. Yet, Mother did not enter a continuing objection
and did not object when a different witness later testified that Mother’s
daughter was “in and out of the system in California,” Tr. Vol. II at 39, and
that the final time child services was involved, the daughter “aged out” of the
system without Mother regaining custody. Tr. Vol. II at 43-44. Moreover, the
underlying CHINS record was admitted without objection, and that record
contains references to Mother’s child-services history in California.
[16] Thus, despite Mother’s objection to certain testimony, Mother did not preserve
a claim of error concerning the admission of cumulative evidence. See Bogner v.
Bogner, 29 N.E.3d 733, 740 (Ind. 2015) (acknowledging “the general principle
that objections not contemporaneously raised are waived”). Therefore, even if
the trial court erred in admitting the specific testimony to which Mother
objected, any error would be harmless. See T.R. 61 (directing courts to
disregard harmless error); see also Witte v. Mundy ex rel. Mundy, 820 N.E.2d 128,
135 (Ind. 2005) (“Error in the admission of evidence may be harmless when the
evidence is merely cumulative of other properly admitted evidence”).
[17] Nevertheless, even if we were to disregard Mother’s child-services history, the
judgment of the trial court is supported by clear and convincing evidence. It is
undisputed that Mother’s criminal actions led to her incarceration when Child
Court of Appeals of Indiana | Memorandum Decision 29A02-1704-JT-846 | August 28, 2017 Page 6 of 8 was six weeks old. We acknowledge that Mother made laudable progress after
serving her sentence, including obtaining employment and a promotion to a
managerial role. Mother also participated in the ordered parenting assessment
and availed herself of all opportunities to visit Child during a two-week trip to
Indiana. However, despite several positive changes in Mother’s life, Mother
chose not to consistently develop a relationship with Child—Mother took
advantage of fewer than half of her ongoing opportunities to interact with
Child. See Lang v. Starke Cty. Office of Family & Children, 861 N.E.2d 366, 372
(Ind. Ct. App. 2007) (“[T]he failure to exercise the right to visit one’s children
demonstrates a ‘lack of commitment to complete the actions necessary to
preserve [the] parent-child relationship.’” (quoting In re A.L.H., 774 N.E.2d 896,
900 (Ind. Ct. App. 2002))), trans. denied.
[18] At the hearing, Mother claimed that she did not attend weekly video calls with
Child because of her work schedule, but there was contradictory testimony that
Mother had great flexibility in the timing of those calls—and there were weeks
at a time when Mother did not inquire about scheduling visitation. The trial
court reasoned that if Mother cannot consistently participate in short video calls
with Child, it is “unlikely that Mother will be able to provide consistent care
and supervision of the Child on a full[-]time basis.” Appellant’s App. Vol. II at
21. Furthermore, although Mother later made efforts to resume visitation and
gain custody of Child, Mother failed to appear at the hearing on her motion.
[19] At the time of the permanency hearing, Child was nearly three years old and
had interacted with Mother for only a handful of hours. The evidence adduced
Court of Appeals of Indiana | Memorandum Decision 29A02-1704-JT-846 | August 28, 2017 Page 7 of 8 at the hearing indicated that Child was bonded to his pre-adoptive foster parents
and thriving in their care. Further, the Guardian Ad Litem and two FCMs who
worked on the case recommended terminating the parent-child relationship.
[20] We conclude that the challenged finding was supported by sufficient evidence.
Conclusion [21] DCS presented clear and convincing evidence that terminating the parent-child
relationship is in Child’s best interests.
[22] Affirmed.
Baker, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 29A02-1704-JT-846 | August 28, 2017 Page 8 of 8