In the Termination of the Parent-Child Relationship of: H.M. (Minor Child), and A.M. (Father) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 20, 2019
• Docket: 19A-JT-752
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 20 2019, 8:14 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Harold E. Amstutz Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana Michael Vo Sherman Certified Legal Intern Robert J. Henke Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Termination of the August 20, 2019 Parent-Child Relationship of: Court of Appeals Case No. 19A-JT-752 H.M. (Minor Child), Appeal from the Tippecanoe and Superior Court A.M. (Father), The Honorable Bradley K. Mohler, Appellant-Respondent, Special Judge Trial Court Cause No. v. 79D03-1809-JT-125

The Indiana Department of Child Services, Appellee-Petitioner

Court of Appeals of Indiana | Memorandum Decision 19A-JT-752 | August 20, 2019 Page 1 of 10 Baker, Judge.

[1] A.M. (Father) appeals the juvenile court’s order terminating his parent-child

relationship with H.M. (Child), arguing that the evidence is insufficient to

support the order and that the juvenile court erred when it improperly admitted

written reports as hearsay evidence. Finding that the evidence is sufficient and

that the juvenile court committed, at most, only harmless error, we affirm.

Facts [2] Child was born to B.L. (Mother)1 and Father on February 2, 2016. On

November 1, 2016, the Department of Child Services (DCS) became involved

with the family and removed Child from the home due to Mother’s untreated

mental health problems, substance abuse issues, and a failed attempt at suicide.

DCS did not place Child with Father because Father could not provide

documentation proving paternity of the Child. Even after Father established

paternity, Child remained in foster care.

[3] On November 2, 2016, DCS filed a petition alleging that Child was a Child in

Need of Services (CHINS). The juvenile court adjudicated Child to be a

CHINS on December 29, 2016, and entered a dispositional decree on January

20, 2017. Under the terms of that dispositional decree, Father was required to

keep in contact with the Family Case Manager (FCM), maintain housing, not

1 Child’s mother is not part of this appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-752 | August 20, 2019 Page 2 of 10 possess or consume alcohol or illegal substances, submit to random drug

screens, obtain employment, and follow all recommendations from

assessments. By February 27, 2018, the juvenile court found that Father had not

met the objectives of the dispositional decree, noting that Father had failed to

comply with all required services, attend any visitations with Child or make any

effort to see Child, or produce clean drug screens. Moreover, Father had been

arrested for possession and use of methamphetamine. Following that hearing,

“[t]he Court did not authorize parenting time for the Father, noting that the

Father did not wish to proceed with reunification.” Appellant’s App. Vol. II p.

20-21. Father never participated with services during the CHINS case and has

not seen or had contact with Child since December 2016.

[4] On October 18, 2017, Father pleaded guilty to Level 5 felony dealing in

methamphetamine, Level 5 felony dealing in a narcotic drug, and Level 6

felony operating a vehicle as an habitual traffic violator. At the time of the

termination hearing, Father believed that his earliest possible release date from

the Department of Correction (DOC) was April 19, 2019. Father “completed

beneficial programs while incarcerated, including Recovery While Incarcerated,

Mothers Against Meth, Inside Out Dads, and vocational programs.” Id. at 22.

Additionally, Father had a pending theft charge against him, with an initial

hearing set for April 22, 2019.

[5] DCS filed a petition for termination of parental rights on September 4, 2018. At

the January 31, 2019, fact-finding hearing, Father testified that he had

completed various programs while incarcerated and that he had hoped to

Court of Appeals of Indiana | Memorandum Decision 19A-JT-752 | August 20, 2019 Page 3 of 10 continue treatment services once released from the DOC. He admitted that he

had refused to participated in DCS services because he was “mad,” id. at 23,

that he was hostile to DCS and its efforts for rehabilitation and reunification,

that he had consistently refused to submit to drug screens, that he “wasn’t

gonna jump through all [of DCS’s] hoops,” tr. vol. II p. 160, and that he had

not seen Child since Christmas 2016. It was also revealed that Father had no

prospective employment, housing, or treatment options after his release from

the DOC.

[6] FCM Sally Messmer testified at the termination hearing that termination of

parental rights was in Child’s best interest. Additionally, Court-Appointed

Special Advocate (CASA) Hilary Laughner, who had not worked on Child’s

case from the beginning, brought written reports from the original CASA:

Dottie Rausch. CASA Laughner then testified that based on her personal

observations, Child was doing well in his current placement with his half-

sibling; Child had been removed and separated from both parents for

approximately twenty-seven months; Child required stability and permanency;

DCS had a permanency plan for Child’s current foster parents to adopt him;

and termination of parental rights was in Child’s best interests. CASA

Laughner also submitted CASA Rausch’s original reports, which the juvenile

court admitted into evidence. On March 31, 2019, the juvenile court entered an

order granting the termination petition. Father now appeals.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-752 | August 20, 2019 Page 4 of 10 Discussion and Decision I. Standard of Review

[7] When reviewing an order on the termination of a parental relationship:

We do not reweigh the evidence or determine the credibility of witnesses, but consider only the evidence that supports the judgment and the reasonable inferences to be drawn from the evidence. We confine our review to two steps: whether the evidence clearly and convincingly supports the findings, and then whether the findings clearly and convincingly support the judgment. Reviewing whether the evidence “clearly and convincingly” supports the findings, or the findings “clearly and convincingly” support the judgment, is not a license to reweigh the evidence.

In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (internal citations omitted) (some

internal quotations omitted). We must give “due regard” to the trial court’s

ability to judge witness credibility firsthand, and we will not set aside its

findings or judgment unless clearly erroneous. Id.

[8] Pursuant to Indiana Code section 31-35-2-4(b)(2), DCS must prove the

following in order to terminate the parental rights for a CHINS:

(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.

(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. Court of Appeals of Indiana | Memorandum Decision 19A-JT-752 | August 20, 2019 Page 5 of 10 (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

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

DCS must prove these allegations by clear and convincing evidence. In re N.G.,

51 N.E.3d 1167, 1170 (Ind. 2016).

II. Sufficiency

[9] First, Father argues that the evidence does not establish that termination of his

parental rights was in Child’s best interests. Father contends that termination

was ordered solely based on his incarceration, which is improper.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-752 | August 20, 2019 Page 6 of 10 [10] Father is correct that the fact that a parent is incarcerated does not, alone, prove

by clear and convincing evidence that termination of parental rights is

appropriate. K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641, 648 (Ind. 2015).

Rather, DCS must proffer additional evidence in tandem with a parent’s

incarceration to establish that placement with the parent is not in the child’s

best interest. Id.

[11] Here, the record is replete with evidence aside from Father’s incarceration that

termination is in Child’s best interests. At the beginning of the CHINS case,

Father had yet to establish paternity of Child. Even after proving paternity,

Father did not comply with any part of the dispositional decree, failing to

attend rehabilitative services, to participate in court-ordered programs, to attend

any visitations with Child, and to produce clean drug screens. Additionally,

Father was charged with and eventually pleaded guilty to felony drug offenses,

with a theft charge pending against him. As of the termination hearing, Father

had not seen or had any contact with Child for over two years.

[12] And while Father had made some progress by completing various programs in

the DOC, Father admitted that before his incarceration, he had refused to

submit to drug screens, been belligerent and uncooperative with DCS

employees, and had refused to “ jump through all [of DCS’s] hoops[,]” in order

to see Child. Tr. Vol. II p. 160. See, e.g., Lang v. Starke Cty. Office of Family and

Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007) (holding that the juvenile

court may “consider the parent’s response to the services offered through . . .

DCS[]” in CHINS proceedings). The FCM and current CASA both testified

Court of Appeals of Indiana | Memorandum Decision 19A-JT-752 | August 20, 2019 Page 7 of 10 that Child is currently in a safe, comfortable, and healthy environment with his

foster parents and that Child needs this stability in order to grow and prosper.

In their opinion, termination of parental rights was in the Child’s best interests,

and Father proffered no evidence to the contrary.

[13] In sum, the juvenile court did not err by determining that there is clear and

convincing evidence apart from Father’s incarceration that termination is in

Child’s best interests.

III. Admission of Evidence

[14] Next, Father argues that the juvenile court erred when it admitted evidence of

the original CASA’s written reports and conclusions. Specifically, Father argues

that this evidence constituted inadmissible hearsay. The admission of evidence

is left to the trial court’s sound discretion, and we will not disturb that decision

unless it is against the logic and effect of the facts and circumstances before it.

In re Involuntary Termination of Parent Child Relationship of A.H., 832 N.E.2d 563,

567 (Ind. Ct. App. 2005).

[15] It should be noted that Father failed to object to the introduction of the original

CASA’s written reports, thereby waiving the issue for appeal. See In re Des.B., 2

N.E.3d 828, 835 (Ind. Ct. App. 2014). Though Father failed to object, we will

nevertheless address his argument because Mother did raise a hearsay objection

and, as a result, the juvenile court was able to consider and rule on the issue.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-752 | August 20, 2019 Page 8 of 10 [16] A statement is hearsay if it “is not made by the declarant while testifying at the

trial or hearing[] and is offered in evidence to prove the truth of the matter

asserted.” Ind. Evidence Rule 801(c). Hearsay statements are inadmissible in a

court of law unless an exception, rule, or other law applies. Ind. Evidence Rule

802. Here, DCS proffered the written reports and conclusions of CASA Dottie

Rausch, an unavailable declarant, to prove the truth of the matter asserted—

namely, that termination of Father’s parental rights is warranted and necessary

in this situation. This presentation of evidence plainly violates the prohibition

against hearsay evidence. Thus, the juvenile court erred when it admitted the

Rausch reports.

[17] However, the juvenile court’s error was, at most, harmless. “An error is

harmless if it does not affect the substantial rights of the parties.” In re C.G., 933

N.E.2d 494, 508 (Ind. Ct. App. 2010). Also, the trial court commits harmless

error “if the erroneously admitted evidence was cumulative of other evidence

appropriately admitted.” In re S.W., 920 N.E.2d 783, 788 (Ind. Ct. App. 2010).

Rausch’s written reports represented just one among many pieces of evidence

proffered by DCS during the fact-finding hearing. The new CASA, Hilary

Laughner, provided her own recommendations together with the FCM.

Additionally, there was well-documented proof that Father had been non-

compliant with most, if not all, DCS-related services. Furthermore, Father had

been incarcerated due to drug convictions, had neglected to secure stable

housing and employment upon his release from the DOC, and most

importantly, had failed to create any sort of meaningful relationship with Child

Court of Appeals of Indiana | Memorandum Decision 19A-JT-752 | August 20, 2019 Page 9 of 10 from the time of his birth. Though Rausch’s written reports were erroneously

admitted into evidence, we find that the error was harmless when looking at the

wealth of evidence that was properly admitted.

[18] The judgment of the juvenile court is affirmed.

Kirsch, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-752 | August 20, 2019 Page 10 of 10