MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Feb 19 2019, 10:14 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Katherine N. Worman Curtis T. Hill, Jr. Evansville, Indiana Attorney General of Indiana David E. Corey Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Termination of the Parent- February 19, 2019 Child Relationship of: H.A., Court of Appeals Case No. A.A., Ri.A., and Ro.A. (Minor 18A-JT-2107 Children), Appeal from the Vanderburgh and Superior Court The Honorable Brett J. Niemeier, R.A. (Father), Judge Appellant-Respondent, The Honorable Renee A. Ferguson, Magistrate v. Trial Court Cause No. 82D04-1711-JT-2195 The Indiana Department of 82D04-1711-JT-2196 Child Services, 82D04-1711-JT-2197 82D04-1711-JT-2198 Appellee-Plaintiff.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 1 of 25 Tavitas, Judge.
Case Summary [1] R.A. (“Father”) appeals the trial court’s termination of his parental rights to
H.A., A.A., Ri.A., and Ro.A. We affirm.
Issue [2] Father raises several issues, which we restate as:
I. Whether the trial court properly admitted certain evidence at the termination hearing.
II. Whether the evidence is sufficient to support the termination of Father’s parental rights.
Facts [3] Father and As.A. (“Mother”) are the parents of Ro.A., who was born in
October 2007; A.A., who was born in July 2009; H.A., who was born in
October 2010; and Ri.A., who was born in June 2014 (collectively, “the
Children”). On July 8, 2016, the State charged Father with two counts of child
molesting, as Class A felonies, for molesting H.A. and A.A. In November
2016, Mother left the three older Children with a friend and refused to take the
Children back.
[4] On November 23, 2016, the Vanderburgh County Department of Child Services
(“DCS”) filed petitions alleging that each of the Children were children in need
of services (“CHINS”) due to: (1) Father’s incarceration for sexually abusing
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 2 of 25 two of the Children; (2) Mother’s refusal to take custody of the Children; (3)
Mother’s failure to address the Children’s medical needs; and (4) Mother’s
failure to provide the Children with a safe and appropriate home. After a
hearing, the trial court found that the Children were CHINS. A January 2017
dispositional order required Father to notify DCS upon his release from
incarceration and ordered Mother to participate in certain services. The
Children have resided in foster homes since the November 2016 removal from
Mother’s care.
[5] In November 2017, DCS filed petitions to terminate Father’s and Mother’s
parental rights. 1 A hearing was held in February and May 2018. At that time,
Father remained incarcerated on the pending child molestation charges. Father
participated in the hearing by telephone.
[6] Tarita Moore, a family case manager for DCS, testified that she first met the
Children in 2016 when DCS received a hotline call about the family. Over
Father’s objection, Moore testified that, upon arriving, H.A. and A.A. almost
immediately told Moore that “their Dad was in jail for molesting them.” Tr.
Vol. II p. 66.
[7] Hilary Bemis, a family case manager for DCS, testified that Ri.A. goes to a
therapeutic preschool, where “he receives most of his services, which includes
1 Mother’s parental rights were terminated by default. On appeal, DCS conceded that the case should be remanded to the trial court for further proceedings. See A.A. v. Ind. Dep’t of Child Services, No. 18A-JT-527 (Ind. Ct. App. July 9, 2018).
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 3 of 25 speech therapy, physical therapy, [and] occupational therapy.” Id. at 56. He
also sees physicians at Riley Hospital due to his club feet. H.A. and A.A.
receive weekly skills training and individual therapy. Ro.A. receives weekly
individual therapy.
[8] Stephanie Whalen, a community resource specialist with Southwestern
Behavioral Healthcare (“Southwestern”), testified regarding the skills training
that she provided to H.A. and A.A. beginning in January 2017. Whalen
worked with H.A. and A.A. on social skills, coping skills, personal boundaries,
personal space, and how to follow rules and directions. Over Father’s
objection, Whalen testified that, according to the foster mothers, one of the girls
exposed or pulled down another foster child’s underwear and one of the girls
got on another girl in a “humping position.” Id. at 44.
[9] Mendy Martin, social worker and therapist with Southwestern, also testified
regarding her work with H.A. and A.A. Over Father’s objection, Martin
testified that H.A. and A.A. had separately disclosed that Father “had touched
their bad spot.” Id. at 49. Through Martin’s testimony, the State also sought to
admit Exhibit F and Exhibit G, which were H.A.’s and A.A.’s medical records
from Southwestern. Over Father’s objection, the trial court admitted the
exhibits.
[10] Ashley Williams, a therapist with Maglinger Behavioral Health Services,
testified that she has provided therapy to Ro.A. Ro.A. told Williams that
Ro.A. “should be in jail” because Father “made him have sex with his sisters.”
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 4 of 25 Id. at 81. Ro.A. described watching videos of people having sex, described
Mother and Father having sex, and reported that Father had sex with his
sisters. Ro.A. also reported that Father “made him put his privates . . . on his
sister’s privates and made him move around.” Id. Ro.A. told Williams that
Mother and Father “rubbed his penis at the same time and they made him pee
in a cup [and] the pee was different than when it’s in [a] toilet.” Id. at 82.
Father also made Ro.A. touch Father’s penis, and Mother videotaped these
acts. Finally, Ro.A. reported that Father made him “kiss his sister’s vagina”
and that Father also “kissed his sister’s vagina.” Id.
[11] Ro.A. stated that seeing his sisters “triggered” him and made him feel “weird
and itchy.” Id. at 83. As a result, sibling visitations with his sisters were
stopped, and Ro.A. has made progress. According to Williams, “[Ro.A.] has
made the statement that his real Mom and real Dad should be in prison. This
child went from idolizing [them] to taking the blame to recognizing that his real
Mom and Dad broke the law and they should be in prison. That’s significant
progress in a child.” Id. at 86. Williams testified that it is not in Ro.A.’s best
interest to have contact with Father.
[12] Father denied sexually molesting H.A., A.A., and Ro.A. and denied observing
Mother engage in inappropriate sexual activity with the Children. Father
claimed that Ro.A. had a “history of deceptive problems” and “has exaggerated
and made up a lot of stories over the years.” Id. at 28. Father testified that he
touched A.A. and Ro.A. only in the “medical sense.” Id. at 33, 35.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 5 of 25 [13] After the hearing, the trial court issued findings of fact and conclusions of law
as follows:
*****
17. Father is currently in the Daviess County Jail. He is charged with sexually molesting [H.A.] and [A.A.].
18. Father is denying the charges.
19. Father stated that he had no idea who could have molested the children.
20. [Ro.A.] has also reported sexual molestation at the hands of mother and father.
21. Father reports that [Ro.A.] has a chromosomal disorder, mild autism, and is mildly mentally handicapped.
22. Father denies [Ro.A.’s] allegations as well.
23. Father testified that the children have referred to “touching” in their allegations and father can show that he has been the primary caregiver and has had cause to touch the children in their genital area.
24. Father does not know when his criminal case will end and when he would be available to parent his children.
25. When asked how long the children should have to wait for permanency, father replied that, “he doesn’t have an answer”.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 6 of 25 26. Father went on to state that there isn’t any guarantee that the children would not be molested in an adoptive home.
27. All of the children have been in therapy.
28. [H.A.] and [A.A.] have been reported by a therapist to have boundary issues and have exhibited sexualized behavior.
29. [H.A.] and [A.A.] have trouble expressing feelings and show feelings through aggressive behavior.
30. [Ro.A.] stated to his therapist that he was forced by father to engage in sexual acts with his sisters, watch pornography, watch his father have sex with his sisters, and watch mom and dad engage in sexual acts.
31. This trauma has resulted in [Ro.A.’s] sisters being a sexual trigger to him.
32. [Ro.A.] stated that both his mother and father should be in prison.
33. The therapist for [Ro.A.] has stated in her opinion [Ro.A.] should not have any further contact with his father.
34. The Department of Child Services Case Managers along with the children’s Court Appointed Special Advocate have all testified that termination of father’s parental rights and adoption are in the best interest of the children.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 7 of 25 7. The Court now finds by clear and convincing evidence that the allegations of the petition to terminate parental rights are true in that:
a. All four children have been removed from the care and custody of their parents for at least six (6) months after the dispositional decree was placed in the order book.
b. There is a reasonable probability that the conditions that resulted in the removal of the [Children] will not be remedied.
c. There is [a] reasonable probability that the continuation of the parent-child relationship between the father and his children poses a threat to the well-being of the children.
d. Termination of the parent-child relationship between [the Children] and their father is in the best interest of the children.
e. The plan of the Department of Child Services for the care and treatment of the children upon termination of father’s parental rights is adoption, which is acceptable and satisfactory.
Appellant’s App. Vol. II pp. 32-34.
Analysis I. Admission of Evidence
[14] Father first challenges the admission of certain evidence during the termination
hearing. The admission of evidence is entrusted to the sound discretion of the
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 8 of 25 trial court. In re S.L.H.S., 885 N.E.2d 603, 614 (Ind. Ct. App. 2008).
Evidentiary rulings of a trial court are afforded great deference on appeal and
are overturned only upon a showing of an abuse of discretion. Id. We will find
an abuse of discretion if the trial court’s decision is against the logic and the
effect of the facts and circumstances before the court. Id. Moreover, not all trial
court error is reversible. In re Termination of Parent-Child Relationship of E.T., 808
N.E.2d 639, 645 (Ind. 2004) (citing Ind. Trial Rule 61). Indiana Trial Rule 61
provides that we must “disregard any error or defect in the proceeding which
does not affect the substantial rights of the parties.” Our Supreme Court has
held that “[t]he improper admission of evidence is harmless error when the
judgment is supported by substantial independent evidence to satisfy the
reviewing court that there is no substantial likelihood that the questioned
evidence contributed to the judgment.” E.T., 808 N.E.2d at 645-46.
A. Testimony of Therapists
[15] Father challenges the admission of certain testimony by the Children’s
therapists, Martin and Williams. Martin was the therapist for H.A. and A.A.,
and Williams was the therapist for Ro.A. Over Father’s hearsay objection,
Martin testified regarding H.A.’s and A.A.’s statements to her regarding
Father’s alleged molestation of the girls. Over Father’s hearsay objection,
Williams testified regarding Ro.A.’s statements to her regarding Father’s and
Mother’s alleged molestations of him.
[16] A hearsay statement is one “other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 9 of 25 matter asserted.” Ind. Evidence Rule 801(c). Hearsay statements are not
admissible, except pursuant to certain exceptions within the Rules of Evidence.
Ind. Evidence Rule 802. One such exception, which DCS argues is applicable
here, “generally permits statements made for the purpose of medical diagnosis
or treatment to be admitted into evidence, even when the declarant is
available.” VanPatten v. State, 986 N.E.2d 255, 260 (Ind. 2013) (citing Ind.
Evidence Rule 803(4)). The statements must be “made by persons who are
seeking medical diagnosis or treatment and describing medical history, or past
or present symptoms, pain, or sensations, or the inception or general character
of the cause or external source thereof insofar as reasonably pertinent to
diagnosis or treatment.” Id. “Rule 803(4)’s exception is grounded in a belief
that the declarant’s self-interest in obtaining proper medical treatment makes
such a statement reliable enough for admission at trial—more simply put, Rule
803(4) reflects the idea that people are unlikely to lie to their doctors because
doing so might jeopardize their opportunity to be made well.” Id.
[17] “This belief of reliability, though, necessitates a two-step analysis for admission
under Rule 803(4).” Id. “First, ‘is the declarant motivated to provide truthful
information in order to promote diagnosis and treatment,’ and second, ‘is the
content of the statement such that an expert in the field would reasonably rely
on it in rendering diagnosis or treatment.’” Id. (quoting McClain v. State, 675
N.E.2d 329, 331 (Ind. 1996)). “Statements made by victims of sexual assault or
molestation about the nature of the assault or abuse—even those identifying the
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 10 of 25 perpetrator—generally satisfy the second prong of the analysis because they
assist medical providers in recommending potential treatment . . . .” Id.
But in cases like the one here, where the declarant is a young child brought to the medical provider by a parent, we have acknowledged that such an inference may be less than obvious. Such young children may not understand the nature of the examination, the function of the examiner, and may not necessarily make the necessary link between truthful responses and accurate medical treatment. In that circumstance, “there must be evidence that the declarant understood the professional’s role in order to trigger the motivation to provide truthful information.” This evidence does not necessarily require testimony from the child-declarant; it may be received in the form of foundational testimony from the medical professional detailing the interaction between him or her and the declarant, how he or she explained his role to the declarant, and an affirmation that the declarant understood that role. But whatever its source, this foundation must be present and sufficient.
Id. at 261 (internal citations omitted).
[18] Father argues that H.A. and A.A. did not understand Martin’s role in order to
trigger the motivation to provide truthful information. Martin testified that she
explained her role as therapist to H.A. and A.A., explained what therapy was,
and explained the importance of telling the truth. Martin stated that the girls
seemed to understand the importance of telling the truth. When asked if the
girls understood the purpose and goal of therapy, Martin responded: “[Y]es and
no. I think just with their ages sometimes it’s hard for them to understand what
therapy is. But I think that they understood that I was someone there that was
supposed to be able to help them process things.” Tr. Vol. II p. 47. Although Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 11 of 25 the girls’ young age made it difficult for them to completely understand therapy,
according to Martin, they understood that Martin was there to help them
process events that happened to them and understood the need to be truthful.
Under these circumstances, the girls’ statements were reliable, and the trial
court did not abuse its discretion by admitting Martin’s testimony regarding the
girls’ statements to her.
[19] As for Williams’ testimony, Father argues that Ro.A. had no concept of
truthfulness and did not understand the purpose of therapy. Williams testified
that she explained her role as a therapist to Ro.A. in terms of being a “helper
coming to help him feel better.” Id. at 77. Ro.A. often colored pictures for
Williams and addressed them as: “For my therapist.” Id. at 85. Williams had
discussions with Ro.A. about the importance of being truthful, and Ro.A.
“seem[ed] to understand” the concept of truth. Id. at 77-78. Williams played a
game with Ro.A. to explain the difference between a truth and a lie. Williams
explained that, prior to meeting with her, it did not appear that Ro.A. “had any
understanding of truth and lie.” Id. at 87.
[20] Father’s argument focuses on Williams’ testimony regarding Ro.A.’s lack of
understanding of truthfulness prior to working with Williams; Williams,
however, made it clear that she worked with Ro.A. to explain truthfulness to
him, and he seemed to understand. Under these circumstances, Ro.A.’s
statements were reliable, and the trial court did not abuse its discretion by
admitting Williams’ testimony regarding Ro.A.’s statements to her.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 12 of 25 B. Whalen’s Testimony
[21] Father argues that the trial court abused its discretion by admitting Whalen’s
testimony regarding the foster mother’s statements to her. Whalen, a
community resource specialist with Southwestern, testified that, according to
the foster mothers, one of the girls exposed or pulled down another foster
child’s underwear and one of the girls got on another girl in a “humping
position.” Tr. Vol. II p. 44.
[22] Father argues that this evidence is not admissible under the medical diagnosis
or treatment exception of Evidence Rule 803(4) because the information came
from the foster mother, not the girls. DCS “does not dispute this.” Appellee’s
Br. p. 24. DCS, however, argues that the evidence is admissible because “the
purpose is to show the effect that the statement had on the listener.” Id. at 25
(citing Whited v. State, 645 N.E.2d 1138, 1140 (Ind. Ct. App. 1995); Bottoms v.
B&M Coal Corp., 405 N.E.2d 82, 96 (Ind. Ct. App. 1980)).
[23] We do agree with Father that the trial court erred in admitting Whalen’s
testimony regarding foster mother’s statements. The statements do not fall
within one of the hearsay exceptions. We find, however, that any error in the
admission of the evidence is harmless. DCS introduced substantial admissible
evidence of the Children’s statements to their therapists regarding Father’s
alleged actions. The admission of very brief testimony regarding foster
mother’s observations of sexualized behaviors did not impact Father’s
substantial rights. This evidence was not germane to the ultimate issues before
the court. Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 13 of 25 C. Exhibit F and Exhibit G
[24] Father argues that the trial court abused its discretion by admitting Exhibit F
and Exhibit G, which were H.A.’s and A.A.’s medical records from
Southwestern. These exhibits were admitted during Martin’s testimony over
Father’s objection. Father contends that the exhibits contain progress notes
from another therapist that also worked with H.A. and A.A. and that “there is
no foundation laid for A.A. and H.A.’s hearsay statements to the other medical
professional.” Appellant’s Br. p. 18.
[25] DCS argues that any error in the admission of the exhibits was harmless. We
note that Father does not point to any specific hearsay statements made to the
other medical professional at issue here. Father makes no effort to explain how
his substantial rights were impacted by the admission of these exhibits. Given
Father’s lack of cogent argument, we agree that any error in the admission of
the exhibits was harmless.
B. Family Case Manager’s Testimony
[26] Next, Father argues that the trial court abused its discretion by admitting
Moore’s testimony regarding H.A.’s and A.A.’s statements to her. Moore
testified that she first met the Children in 2016 when DCS received a hotline
call about the family. Over Father’s objection, Moore testified that, upon
arriving, H.A. and A.A. almost immediately told Moore that “their Dad was in
jail for molesting them.” Id. at 66.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 14 of 25 [27] During the termination hearing, DCS argued that the statement was admissible
as an excited utterance. See Ind. Evid. R. 803(2). Moore testified that H.A. and
A.A. were not “in any kind of significant emotional state” at the time. Tr. Vol.
II p. 66. We do not find that this statement qualified as an excited utterance.
See, e.g., Bryant v. State, 984 N.E.2d 240, 247 (Ind. Ct. App. 2013) (holding that
a stabbing victim’s statement to an officer was not admissible as an excited
utterance where the victim was no longer under the stress of the stabbing when
the officer interviewed him).
[28] On appeal, DCS argues that any error in the admission of the statement was
harmless. We agree. Father admitted that he had been charged with two
counts of child molesting for molesting H.A. and A.A. We have noted that
H.A.’s and A.A.’s statements to their therapist that Father molested them were
admissible. Consequently, Moore’s testimony was cumulative of Father’s and
Martin’s testimony, and any error in the admission of Moore’s testimony was
harmless. See, e.g., B.H. v. Indiana Dept. of Child Services, 989 N.E.2d 355, 363
(Ind. Ct. App. 2013) (holding that, to the extent it was error to admit testimony
regarding progress reports, any error was harmless).
II. Sufficiency of Evidence to Support Termination
[29] Father challenges the termination of his parental relationship with the Children.
The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. In re
K.T.K. v. Indiana Dept. of Child Services, Dearborn County Office, 989 N.E.2d 1225,
1230 (Ind. 2013). “[A] parent’s interest in the upbringing of [his or her] child is Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 15 of 25 ‘perhaps the oldest of the fundamental liberty interests recognized by th[e]
[c]ourt[s].’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054
(2000)). We recognize, of course, that parental interests are not absolute and
must be subordinated to the child’s interests when determining the proper
disposition of a petition to terminate parental rights. Id. Thus, “‘[p]arental
rights may be terminated when the parents are unable or unwilling to meet their
parental responsibilities by failing to provide for the child’s immediate and long-
term needs.’” In re K.T.K., 989 N.E.2d at 1230 (quoting In re D.D., 804 N.E.2d
258, 265 (Ind. Ct. App. 2004), trans. denied).
[30] When reviewing the termination of parental rights, we do not reweigh the
evidence or judge witness credibility. In re C.G., 954 N.E.2d 910, 923 (Ind.
2011). We consider only the evidence and reasonable inferences that are most
favorable to the judgment. Id. We must also give “due regard” to the trial
court’s unique opportunity to judge the credibility of the witnesses. Id.
(quoting Ind. Trial Rule 52(A)).
[31] Pursuant to Indiana Code Section 31-35-2-8(c), “The trial court shall enter
findings of fact that support the entry of the conclusions required by subsections
(a) and (b)” when granting a petition to terminate parental rights. 2 Here, the
2 Indiana Code Sections 31-35-2-8(a) and (b), governing termination of a parent-child relationship involving a delinquent child or CHINS, provide as follows:
(a) Except as provided in section 4.5(d) of this chapter, if the court finds that the allegations in a petition described in section 4 of this chapter are true, the court shall terminate the parent-child relationship.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 16 of 25 trial court did enter findings of fact and conclusions of law in granting DCS’s
petition to terminate Father’s parental rights. When reviewing findings of fact
and conclusions of law entered in a case involving the termination of parental
rights, we apply a two-tiered standard of review. First, we determine whether
the evidence supports the findings, and second, we determine whether the
findings support the judgment. Id. We will set aside the trial court’s judgment
only if it is clearly erroneous. Id. A judgment is clearly erroneous if the
findings do not support the trial court’s conclusions or the conclusions do not
support the judgment. Id.
[32] Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the
allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,
the court shall terminate the parent-child relationship.” Indiana Code Section
31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship
involving a child in need of services must allege, in 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.
(b) If the court does not find that the allegations in the petition are true, the court shall dismiss the petition.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 17 of 25 (ii) The 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.
(iii) The child has been removed from the parent and has been under the supervision of a local office or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child.
(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
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 18 of 25 (D) that there is a satisfactory plan for the care and treatment of the child.
DCS must establish these allegations by clear and convincing evidence. In re
V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).
[33] Father makes three arguments on appeal. First, Father argues that several of
the trial court’s findings are clearly erroneous. Next, Father argues the trial
court’s conclusion that the conditions that led to the Children’s removal would
not be remedied is clearly erroneous. Finally, Father argues the trial court’s
conclusion that termination of Father’s rights is in the best interests of the
Children is clearly erroneous.
A. Findings
[34] Father challenges several of the trial court’s findings of fact. First, Father
challenges the trial court’s finding that “Father does not know when his
criminal case will end and when he would be available to parent his children.”
Appellant’s App. Vol. II p. 33. Father testified that he has been in jail for
nineteen months, that he did not know when his trial would occur, that he had
no idea when he would be released, and that he could not currently take
custody of any of the Children. This finding is supported by the evidence.
[35] Father next challenges the trial court’s finding that “[w]hen asked how long the
children should have to wait for permanency, father replied that, ‘he doesn’t
have an answer.’” Id. During the evidentiary hearing, Father testified as
follows:
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 19 of 25 Q How long should your children have to wait for you to get out of prison - out of jail, sir?
A Well, I mean, I don’t really have that answer. You know, to say if my children should have to wait and then I was found guilty would be – you know, it would be wrong for them. But at the same time for my kids not to wait and be taken out of their homes and separated and adopted into other homes, there’s no guarantee that they would be even safe within the homes that they adopted in or anything else. And then I was found not guilty and they wouldn’t be a part of my life or their own life and with each of their siblings. It’s just unfair.
Tr. Vol. II pp. 34-35. Although the wording of the trial court’s finding is
slightly different than the language used in the question, the trial court
adequately summarized Father’s statement—Father does not know how long
he will be in jail and how long the Children should have to wait. The trial court
committed no error.
[36] Next, Father challenges the trial court’s finding that “[a]ll of the children have
been in therapy.” Appellant’s App. Vol. II p. 33. Father concedes that H.A.,
A.A., and Ro.A. have been receiving psychological therapy, but he argues that
Ri.A. has not been receiving therapy. DCS presented evidence that Ri.A. has
been receiving speech, physical, and occupational therapies. The trial court’s
finding is supported by the evidence.
B. Probability that Removal Conditions will be Remedied
[37] Father next argues that the trial court erred by finding there is a reasonable
probability that the conditions that resulted in the Children’s removal or the
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 20 of 25 reasons for placement outside the home of the parents will not be remedied.
We first note that Indiana Code Section 31-35-2-4(b)(2)(B) is written in the
disjunctive. Subsection (b)(2)(B)(iii), which concerns repeated CHINS
adjudications, is inapplicable here. Consequently, DCS was required to
demonstrate by clear and convincing evidence a reasonable probability that
either: (1) the conditions that resulted in the Children’s removal or the reasons
for placement outside the home of the parents will not be remedied, or (2) the
continuation of the parent-child relationship poses a threat to the Children’s
well-being. The trial court here found both that the conditions resulting in the
Children’s removal will not be remedied and that the continuation of the
parent-child relationship poses a threat to the Children’s well-being. Father
does not challenge the trial court’s finding that the continuation of the parent-
child relationship poses a threat to the Children’s well-being. By failing to
challenge this finding, Father has implicitly conceded the sufficiency of the
evidence to support subsection (b)(2)(B)(ii) and has effectively waived review of
the trial court’s determination under Indiana Code Section 31-35-2-4(b)(2)(B).
[38] Waiver notwithstanding, we will address Father’s argument. “In determining
whether ‘the conditions that resulted in the [Child’s] removal . . . will not be
remedied,’ we ‘engage in a two-step analysis.’” In re E.M., 4 N.E.3d 636, 642-
43 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). “First, we identify the
conditions that led to removal; and second, we ‘determine whether there is a
reasonable probability that those conditions will not be remedied.’” Id. In
analyzing this second step, the trial court judges the parent’s fitness “as of the
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 21 of 25 time of the termination proceeding, taking into consideration evidence of
changed conditions.” Id. (quoting Bester v. Lake Cty. Office of Family & Children,
839 N.E.2d 143, 152 (Ind. 2005)). “We entrust that delicate balance to the trial
court, which has discretion to weigh a parent’s prior history more heavily than
efforts made only shortly before termination.” Id. “Requiring trial courts to
give due regard to changed conditions does not preclude them from finding that
parents’ past behavior is the best predictor of their future behavior.” Id.
[39] Father’s only arguments are that he has been unable to participate in services
due to his incarceration and that the family case managers and Court
Appointed Special Advocate (CASA) have not been in contact with him outside
of court hearings. The Children were initially removed due to Father’s
incarceration for allegedly sexually abusing two of the Children and Mother’s
refusal to take custody of the Children, failure to address their medical needs,
and failure to provide them with a safe and appropriate home. Father was
charged with molesting H.A. and A.A., and those charges are pending. During
the proceedings, Ro.A. also accused Father of molesting him and forcing him
to participate in sexual activity with H.A. and A.A. Ro.A. disclosed to his
therapist many disturbing instances of abuse. Ro.A.’s therapist recommended
that Ro.A. have no further contact with Father. Given the significant
allegations of sexual abuse of H.A., A.A., and Ro.A. by Father, the trial court’s
conclusion that there is a reasonable probability that those conditions will not
be remedied is not clearly erroneous.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 22 of 25 C. Children’s Best Interests
[40] Father next challenges the trial court’s determination that termination is in the
best interests of the Children. In determining what is in the best interests of a
child, the trial court is required to look at the totality of the evidence. See In re
A.B., 887 N.E.2d 158, 167-68 (Ind. Ct. App. 2008). In doing so, the trial court
must subordinate the interests of the parents to those of the child involved. Id.
at 168. Termination of a parent-child relationship is proper where the child’s
emotional and physical development is threatened. K.T.K., 989 N.E.2d at
1235. A trial court need not wait until a child is irreversibly harmed such that
his or her physical, mental, and social development is permanently impaired
before terminating the parent-child relationship. Id. Additionally, a child’s
need for permanency is a “central consideration” in determining the best
interests of a child. Id.
[41] Father argues that he has maintained his innocence in the criminal case and
that he could be “found innocent on his criminal charges but have lost the rights
to his children.” Appellant’s Br. p. 24. Father also argues that a best interest
determination should not be based solely on the recommendations of the family
case managers and the CASA. Father focuses on the family case managers and
CASA’s lack of contact with him during his incarceration.
[42] We agree that a best interest determination cannot be supported solely on the
recommendations of the family case managers and CASA. We have held that
“[r]ecommendations of the case manager and court-appointed [special]
advocate, in addition to evidence that the conditions resulting in removal will not be Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 23 of 25 remedied, are sufficient to show by clear and convincing evidence that
termination is in the child’s best interests.” In re A.S., 17 N.E.3d 994, 1005
(Ind. Ct. App. 2014) (emphasis added), trans. denied. There is no indication,
however, that the trial court based its best interest conclusion on only the
opinions of the family case managers and the CASA. Moreover, Father’s
argument focuses on himself and the lack of contact by the family case
managers and CASA with himself. The issue here, however, is the best
interests of the Children.
[43] The Children have been out of Father’s care since July 2016, when he was
charged with molesting H.A. and A.A. Since that time, Ro.A. has disclosed
extremely disturbing allegations of additional abuse. Both family case
managers testified that adoption was in the Children’s best interests due to
Father’s ongoing incarceration and the nature of the charges. The CASA also
recommended adoption because the Children needed permanency and stability.
H.A., A.A., and Ro.A. have each needed significant therapy to address their
behaviors and to process the trauma they have suffered. Although they have
each made progress, the Children need permanency, stability, and a safe
environment. Under the totality of the circumstances, the trial court’s finding
that termination of Father’s parental rights is in the Children’s best interests is
not clearly erroneous.
Conclusion [44] The trial court’s termination of Father’s parental rights is not clearly erroneous.
We affirm. Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 24 of 25 [45] Affirmed.
Baker, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2107 | February 19, 2019 Page 25 of 25