Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Apr 30 2013, 9:18 am 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:
AMY KAROZOS PATRICK M. RHODES Greenwood, Indiana Indiana Dept. of Child Services Indianapolis, Indiana
ROBERT J. HENKE DCS Central Administration Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA IN THE MATTER OF THE TERMINATION OF ) THE PARENT-CHILD RELATIONSHIP OF ) K.C., a/k/a R.L., and A.L., Minor Children, ) ) S.L., Father, ) ) Appellant-Respondent, ) ) vs. ) No. 49A02-1207-JT-585 ) INDIANA DEPARTMENT OF CHILD ) SERVICES, ) ) Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Marilyn E. Moores, Judge The Honorable Larry Bradley, Magistrate Cause Nos. 49D09-1202-JT-7083, 49D09-1202-JT-7084
April 30, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge S.L. (“Father”) appeals the termination of his parent-child relationship with K.C.1
and A.L. (“Children”). He raises two issues: whether the juvenile court erred in
admitting hearsay statements over Father’s objection, and whether there is sufficient
evidence to support the termination. We affirm.
FACTS AND PROCEDURAL HISTORY
Father, J.C. (“Mother”), 2 Children, and Mother’s child, A.W., lived in Wisconsin.
In March 2010, Mother took Children to Indiana without Father’s knowledge or
permission. Then, in May 2010, she reported Children as Children in Need of Services
(“CHINS”), and they were placed in foster care.
At a January 4, 2012, CHINS pre-trial hearing, Father admitted a history of
domestic violence with Mother that had caused coercive intervention for Children. At a
subsequent dispositional hearing, the juvenile court ordered Father to, among other
things, maintain a stable source of income adequate to support Children, obtain and
maintain suitable housing, participate in counseling and parenting assessment and
successfully complete all recommendations resulting from assessment, and complete a
psychological evaluation. Father thereafter moved to Indiana to complete court-ordered
services and preserve his parental rights. Father participated in supervised visits with
Children.
During a permanency hearing on February 21, 2012, the Department of Child
Services (“DCS”) changed the permanency plan from reunification to termination of
1 K.C. is also known as R.L.; however, both parties refer to the child as K.C. 2 Mother is not a party to this appeal.
2 parental rights and adoption because Father was not completing the services successfully.
It requested suspension of Father’s supervised visitation until he showed progress with
completing ongoing services.
In Indianapolis, Father did not complete homebased counseling due to a lack of
regular contact with the counselor. Father’s homebased therapist, Children’s Court
Appointed Special Advocate (“CASA”), and Family Case Manager (“FCM”) claimed
Father had stress and anger issues. Father completed a domestic violence assessment but
did not complete the recommended domestic violence classes. Father labeled Mother the
aggressor and him the victim in all domestic violence between them. Father contended
the domestic violence services were for batterers, and he refused to complete them
because he wanted to avoid that designation.
Just before the termination hearing, Father moved into a house unsuitable for
children, but claimed he could fix it in six months to a year. He relied on disability
benefits to pay his bills and, at the time of termination, faced eviction if rent was not paid
in fifteen days. Father indicated he planned to provide for Children with food stamps.
On June 25, 2012, the juvenile court terminated Father’s parental rights.
DISCUSSION AND DECISION
We review termination of parental rights with great deference. In re K. S., 750
N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge the
credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.
denied. Instead, we consider only the evidence and reasonable inferences most favorable
to the judgment. Id. In deference to the trial court’s unique position to assess the
3 evidence, we will set aside a judgment terminating a parent-child relationship only if it is
clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied,
cert. denied 534 U.S. 1161 (2002).
When, as here, a judgment contains specific findings of fact and conclusions
thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family
& Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine first whether the evidence
supports the findings and, second, whether the findings support the judgment. Id.
“Findings are clearly erroneous only when the record contains no facts to support them
either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If
the evidence and inferences support the decision, we affirm. In re L.S., 717 N.E.2d at
208.
1. Hearsay Objection
We review decisions concerning admission of evidence for an abuse of discretion.
Walker v. Cuppett, 808 N.E.2d 85, 92 (Ind. Ct. App. 2004). An abuse of discretion
occurs if the trial court’s decision was clearly erroneous and against the logic and effect
of the facts and circumstances before the court. Id. A trial court also abuses its
discretion if its decision is without reason or is based upon impermissible considerations.
Id. Even if a trial court errs in a ruling on the admissibility of evidence, we will reverse
only if the error is inconsistent with substantial justice. Id.
Hearsay is an out-of-court statement offered in a judicial proceeding to prove the
truth of a matter asserted in the statement. Ind. Evidence Rule 801(c). During the
termination trial on June 25, 2012, a DCS case manager testified Mother said Father
4 physically abused her. Father’s hearsay objection was overruled because the court
mistakenly thought Mother’s statement was being offered against Mother, when it was, in
fact, offered against Father. See Ind. Evid. R. 801(d)(2) (“A statement is not hearsay if: .
. . [t]he statement is offered against a party and is (A) the party’s own statement . . . .”).
Nevertheless, any error in admitting that statement is not reversible because “error
may not be predicated upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected.” Evid. R. 103(a). Even if the case manager’s
testimony was inadmissible hearsay, there was independent evidence of domestic abuse
in the form of certified exhibits in the underlying CHINS proceedings and Father’s
admissions of domestic violence. The CHINS Petition included Mother’s allegations of
Father’s abuse, the juvenile court admitted and transcribed such allegations, and Father
admitted several violent acts. Therefore, Father cannot demonstrate that a substantial
right was violated.
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Apr 30 2013, 9:18 am 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:
AMY KAROZOS PATRICK M. RHODES Greenwood, Indiana Indiana Dept. of Child Services Indianapolis, Indiana
ROBERT J. HENKE DCS Central Administration Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA IN THE MATTER OF THE TERMINATION OF ) THE PARENT-CHILD RELATIONSHIP OF ) K.C., a/k/a R.L., and A.L., Minor Children, ) ) S.L., Father, ) ) Appellant-Respondent, ) ) vs. ) No. 49A02-1207-JT-585 ) INDIANA DEPARTMENT OF CHILD ) SERVICES, ) ) Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Marilyn E. Moores, Judge The Honorable Larry Bradley, Magistrate Cause Nos. 49D09-1202-JT-7083, 49D09-1202-JT-7084
April 30, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge S.L. (“Father”) appeals the termination of his parent-child relationship with K.C.1
and A.L. (“Children”). He raises two issues: whether the juvenile court erred in
admitting hearsay statements over Father’s objection, and whether there is sufficient
evidence to support the termination. We affirm.
FACTS AND PROCEDURAL HISTORY
Father, J.C. (“Mother”), 2 Children, and Mother’s child, A.W., lived in Wisconsin.
In March 2010, Mother took Children to Indiana without Father’s knowledge or
permission. Then, in May 2010, she reported Children as Children in Need of Services
(“CHINS”), and they were placed in foster care.
At a January 4, 2012, CHINS pre-trial hearing, Father admitted a history of
domestic violence with Mother that had caused coercive intervention for Children. At a
subsequent dispositional hearing, the juvenile court ordered Father to, among other
things, maintain a stable source of income adequate to support Children, obtain and
maintain suitable housing, participate in counseling and parenting assessment and
successfully complete all recommendations resulting from assessment, and complete a
psychological evaluation. Father thereafter moved to Indiana to complete court-ordered
services and preserve his parental rights. Father participated in supervised visits with
Children.
During a permanency hearing on February 21, 2012, the Department of Child
Services (“DCS”) changed the permanency plan from reunification to termination of
1 K.C. is also known as R.L.; however, both parties refer to the child as K.C. 2 Mother is not a party to this appeal.
2 parental rights and adoption because Father was not completing the services successfully.
It requested suspension of Father’s supervised visitation until he showed progress with
completing ongoing services.
In Indianapolis, Father did not complete homebased counseling due to a lack of
regular contact with the counselor. Father’s homebased therapist, Children’s Court
Appointed Special Advocate (“CASA”), and Family Case Manager (“FCM”) claimed
Father had stress and anger issues. Father completed a domestic violence assessment but
did not complete the recommended domestic violence classes. Father labeled Mother the
aggressor and him the victim in all domestic violence between them. Father contended
the domestic violence services were for batterers, and he refused to complete them
because he wanted to avoid that designation.
Just before the termination hearing, Father moved into a house unsuitable for
children, but claimed he could fix it in six months to a year. He relied on disability
benefits to pay his bills and, at the time of termination, faced eviction if rent was not paid
in fifteen days. Father indicated he planned to provide for Children with food stamps.
On June 25, 2012, the juvenile court terminated Father’s parental rights.
DISCUSSION AND DECISION
We review termination of parental rights with great deference. In re K. S., 750
N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge the
credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.
denied. Instead, we consider only the evidence and reasonable inferences most favorable
to the judgment. Id. In deference to the trial court’s unique position to assess the
3 evidence, we will set aside a judgment terminating a parent-child relationship only if it is
clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied,
cert. denied 534 U.S. 1161 (2002).
When, as here, a judgment contains specific findings of fact and conclusions
thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family
& Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine first whether the evidence
supports the findings and, second, whether the findings support the judgment. Id.
“Findings are clearly erroneous only when the record contains no facts to support them
either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If
the evidence and inferences support the decision, we affirm. In re L.S., 717 N.E.2d at
208.
1. Hearsay Objection
We review decisions concerning admission of evidence for an abuse of discretion.
Walker v. Cuppett, 808 N.E.2d 85, 92 (Ind. Ct. App. 2004). An abuse of discretion
occurs if the trial court’s decision was clearly erroneous and against the logic and effect
of the facts and circumstances before the court. Id. A trial court also abuses its
discretion if its decision is without reason or is based upon impermissible considerations.
Id. Even if a trial court errs in a ruling on the admissibility of evidence, we will reverse
only if the error is inconsistent with substantial justice. Id.
Hearsay is an out-of-court statement offered in a judicial proceeding to prove the
truth of a matter asserted in the statement. Ind. Evidence Rule 801(c). During the
termination trial on June 25, 2012, a DCS case manager testified Mother said Father
4 physically abused her. Father’s hearsay objection was overruled because the court
mistakenly thought Mother’s statement was being offered against Mother, when it was, in
fact, offered against Father. See Ind. Evid. R. 801(d)(2) (“A statement is not hearsay if: .
. . [t]he statement is offered against a party and is (A) the party’s own statement . . . .”).
Nevertheless, any error in admitting that statement is not reversible because “error
may not be predicated upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected.” Evid. R. 103(a). Even if the case manager’s
testimony was inadmissible hearsay, there was independent evidence of domestic abuse
in the form of certified exhibits in the underlying CHINS proceedings and Father’s
admissions of domestic violence. The CHINS Petition included Mother’s allegations of
Father’s abuse, the juvenile court admitted and transcribed such allegations, and Father
admitted several violent acts. Therefore, Father cannot demonstrate that a substantial
right was violated. See In re E.T., 808 N.E.2d 639, 646 (Ind. 2007) (improper admission
of hearsay evidence ruled harmless because other circumstantial evidence was sufficient
for termination of parental rights).
2. Sufficiency of the Evidence
To terminate a parent-child relationship, DCS must allege and prove by clear and
convincing evidence that there is a reasonable probability: “(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.” Ind. Code § 31-35-2-4(b)(2).
5 The juvenile court must determine a parent’s fitness to care for the children at the
time of the termination hearing to determine whether there is a reasonable probability the
parent will not remedy the conditions that led to the children’s removal. In re A.B., 924
N.E.2d 666, 670 (Ind. Ct. App. 2010). The juvenile court must evaluate the parent’s
habitual patterns of conduct to determine the possibility of future neglect or deprivation
of the children. Id. These patterns include, but are not limited to, historical failure to
provide support and lack of adequate housing and employment. McBride v. Monroe
County OFC, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003).
We consider a parent’s unresponsiveness, uncooperativeness, and unwillingness to
complete assigned services when determining sufficiency of evidence for termination of
parent-child relationship, although it is not an element of termination proceedings. In re
L.S., 717 N.E.2d 204 at 210 (“pattern of unwillingness to deal with parenting problems
and to cooperate with those providing social services, in conjunction with unchanged
conditions, support a finding that there exists no reasonable probability that the
conditions will change”); In re E.E., 736 N.E.2d 791, 796 (Ind. Ct. App. 2000) (provision
of services not element of termination statute). Therefore, to determine sufficiency we
consider Father’s failure to successfully complete services in conjunction with other
unchanged factors.
DCS must establish a reasonable probability that Father’s behavior will remain
unchanged. In re Kay L., 867 N.E.2d 236 (Ind. Ct. App. 2007). At the termination
hearing, Father requested up to two years to make his current home suitable. In
Wisconsin, Father had “many different residences where [he] had to keep moving.” (Tr.
6 at 84.) In Indianapolis, he stayed with two different relatives before settling in his
residence as of April 2012. Renovations and repairs were needed at the time of
termination. He relied on $875 a month in disability, $475 of which was for rent. The
disability payments did not cover phone, storage, and loan payments. He had no plan for
a room or bedding for Children, was facing eviction if rent was not paid in fifteen days,
and planned to use food stamps to provide food for Children if given custody.
In addition, Father claimed his cousins had robbed him and kept him captive at his
current residence during April 2012. Father claimed they kept him hostage with BB guns
and he did not call police because he feared the captors would kill him. Father did not
contact service providers during the alleged captivity.
We agree that, based on these facts, there is a reasonable probability that Father’s
failure to provide adequate housing will not be remedied. This factor, in conjunction
with Father’s failure to complete services, is clear and convincing evidence of a
reasonable probability that he will not remedy the conditions that resulted in Children
being placed outside his care.3 See In re C.C., 788 N.E.2d 847, 854-55 (Ind. Ct. App.
2003) (father’s lack of adequate housing in conjunction with failure to complete services
established clear and convincing evidence of reasonable probability that conditions
leading to children’s removal would not be remedied), trans. denied.
3 We need not address the question of a threat to the Children’s well-being because only one prong under Ind. Code § 31-35-2-4(b)(2) must be satisfied to permit termination of parental rights. See Prince v. Dep’t of Child Servs., 861 N.E.2d 1223, 1229 n.2 (Ind. Ct. App. 2007) (State needs prove only one prong of test).
7 CONCLUSION
Father cannot demonstrate he was prejudiced by the admission of the hearsay
evidence at issue. There was clear and convincing evidence of a reasonable probability
Father could not remedy the conditions that caused Children to be placed outside his care,
and termination of his parental rights therefore was not error.
Affirmed.
ROBB, C.J., and PYLE, J., concur.