In the Matter of the Term. of the Parent-Child Rel. of: E.M.R., and V.H. & M.R. v. The Indiana Dept. of Child Services ( 2012 )

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
FILED
Jul 17 2012, 9:06 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
CHARLES W. LAHEY HOLLY M. DENEVE
South Bend, Indiana South Bend, 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: )
)
E.M.R. (Minor Child), )
)
AND )
)
V.H. (Mother) & M.R. (Father), )
)
Appellants-Respondents, )
)
Vs. ) No. 71A03-1110-JT-494
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellant-Plaintiff, )
APPEAL FROM THE ST. JOSEPH PROBATE COURT
The Honorable Peter J. Nemeth, Judge
Cause No. 71J01-1004-JT-117
July 17, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellants-Respondents, V.H. (Mother) and M.R. (Father), appeal the trial court’s
termination of their parental rights to their minor child, E.M.R.
We affirm.
ISSUES
Mother and Father raise two issues, which we restate as:
(1) Whether the trial court’s findings of fact support the trial court’s termination of
their parental rights to E.M.R.; and
(2) Whether the trial court erred in finding that DCS had provided a satisfactory
plan for E.M.R.’s care and treatment.
Mother separately raises an additional issue, which we restate as: Whether the
trial court abused its discretion when it denied Mother’s petition for an updated interview.
Father separately raises an additional issue, which we restate as: Whether the trial
court abused its discretion when it allowed DCS to submit evidence from a breathalyzer
2
test without confirming that the breathalyzer had been calibrated within the week that the
test was performed.
FACTS AND PROCEDURAL HISTORY
Mother and Father are the parents of E.M.R., born September 17, 2008. Although
Father was incarcerated when Mother gave birth to E.M.R., he was released
approximately two weeks later. Shortly after his release, Father got into a physical
altercation with his mother while she was holding E.M.R. As a result of the altercation,
the Department of Child Services (DCS) entered into an informal adjustment with Mother
and Father. Pursuant to the adjustment, Father was not allowed to be around E.M.R.
unless Mother was also present to supervise.
After Father’s release from incarceration, Mother initially lived with him at his
mother’s house. However, because Mother and Father argued frequently, Mother and
E.M.R. moved in with Mother’s mother. On February 22, 2009, when E.M.R. was
approximately five months old, Father called Mother and asked her to come over to his
house so that he could see E.M.R. Mother complied. While she was at Father’s house,
Father’s brother visited and started a fight with Father. Mother grabbed E.M.R. and left
the room. Meanwhile, Father’s brother pulled out a gun. Father left the house and called
the police from a neighbor’s house, but his brother left before the police responded.
Upon their arrival, the police officers discovered that Mother and Father were
intoxicated. At the time, Father was 24 years old and Mother was 19. The officers
administered an alcohol breath test to Mother and found that she had a blood alcohol
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level of 0.180. An officer told Mother that because she had been drinking and was
underage, he could take away E.M.R. Mother stood up and responded that no one was
going to take her baby away. One of the police officers grabbed her arm and Mother
“threw” E.M.R., who hit a couch approximately four to eight feet away. (Vol. I
Transcript p. 40).1 The police observed E.M.R. strike the couch head-first, while his legs
bent back over his head. Father grabbed E.M.R. before E.M.R. subsequently hit the
floor.
As a result of this incident, Mother was arrested for underage consumption of
alcohol, Father was arrested for distributing to a minor, and E.M.R. was taken to a
hospital. E.M.R.’s only injury from the throw was an abrasion to his left eyebrow. When
E.M.R. was released from the hospital, DCS placed him into foster care, where he has
remained since. Father spent three days in jail, but ultimately the State did not file any
charges against him and dismissed his case. The State charged Mother with felony child
neglect and misdemeanor underage consumption of alcohol. Mother was convicted of
child neglect and served five days in jail. She was also sentenced to four years of
probation.
On March 2, 2009, DCS filed a petition alleging that E.M.R. was a child in need
of services (CHINS). On March 4, 2009, Mother and Father admitted to the allegations
1
One volume of the trial court’s transcripts contains the October 19, 2010 and January 13, 2011 hearing
transcripts, consecutively paginated, and another volume includes the September 15 and September 30,
2011 transcripts, consecutively paginated. We will address the first volume as Vol. I transcript and the
second as Vol. II transcript.
4
and the trial court adjudicated E.M.R. to be a CHINS. On April 6, 2009, the trial court
held a dispositional hearing and ordered Mother and Father to: (1) submit to random
drug screens; (2) complete parenting assessments and parenting classes; and (3) maintain
stable employment and/or income and adequate housing. The trial court also ordered
Mother to complete high school or obtain her GED.
In April and May of 2009, Dr. Alan Wax, Ph.D. (Dr. Wax) conducted
psychoparenting assessments of Mother and Father. Dr. Wax had seven concerns about
Mother as a result of his assessment: (1) that based on Mother’s history, she would not
be able to complete her probation without getting into further trouble, which would cause
a disruption in her bond with E.M.R.; (2) that she might have bipolar disorder, which
could manifest in periodic impulsive and rash behaviors; (3) her history of alcohol
addiction and abuse; (4) her extremely low score on the parenting assessment; (5) her
history of fighting with Father, which Dr. Wax felt would not provide a good
environment for E.M.R.; (6) her failure to keep appointments; and (7) that there were
inconsistencies between Mother’s story concerning the night that she was arrested,
Father’s story concerning the same night, and DCS’ report.
With regard to Father, Dr. Wax had similar concerns. He noted that Father had a
history of alcohol abuse and that Father had low scores on his parenting assessment. In
addition, Dr. Wax noted that Father had problems with anger and impulse control, as well
as unmanaged depression. Finally, Dr. Wax mentioned that Father’s environment was
bad for him, both as it related to encouraging the possibility of a relapse and as to its
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propriety for E.M.R. Dr. Wax recommended that Father complete substance abuse
treatment and aftercare, attend AA meetings, complete anger management classes, and
receive counseling.
On July 8, 2009, the trial court modified its dispositional order to include Dr.
Wax’s recommendations and further required Mother to complete individual counseling,
attend AA meetings at least twice a week, and successfully complete probation. In
addition to Father’s original requirements, the trial court ordered Father to complete the
Batterer’s Intervention Program (BIP) and individual counseling, to attend weekly AA
meetings, and to obtain suitable housing away from persons addicted to drugs or alcohol.
Pursuant to the order, Father completed a chemical dependency evaluation and
was recommended to attend a modified intensive outpatient program (IOP) twice a week,
followed by a twelve week program of after-care that would meet once a week. He was
also recommended to attend a minimum of one AA meeting per week. Michelle Haas
(Haas), a Chemical Dependency Counselor at the Family and Children’s Center in South
Bend, Indiana, began working with Father in May of 2009. She testified that Father’s
attendance was inconsistent throughout his IOP and that he did not attend the mandatory
AA meetings at first. Father also had one relapse at the beginning of the program.
Nevertheless, towards the end of the program, Haas noticed that Father had increased
motivation and seemed to be “trying to maintain some abstinence.” (Vol. I Tr. p. 16).
On August 9, 2009, Father finished the IOP requirements, even though it took him
a month longer than expected due to his inconsistent attendance. However, Father did
6
not complete the after-care portion of the program and, therefore, did not officially
complete the program since the after-care was considered an integral component of the
overall requirements. On October 29, 2009, Haas met with Father and noticed that Father
appeared extremely intoxicated. She tested Father with a breathalyzer and found that he
had a blood alcohol level of 0.101. Accordingly, Haas told Father that she could not
conduct a session with him because he was drunk. Father left her office, and Haas later
received notice that Father had been incarcerated for charges of driving under the
influence. On November 23, 2009, Haas discharged Father for non-compliance.
At a later date, Father requested to restart the program. Accordingly, on
December 29, 2009, Haas again met with Father for an individual session. She informed
him that she was increasing his services to three times per week, that he had to restart the
program from the beginning, and that he had to attend a minimum of two AA meetings
per week. Father signed a contract acknowledging that he would be discharged from the
program again if he missed any of his classes or meetings for any reason. On December
30, 2009, Father was convicted of battery for an incident of domestic violence against
Mother and was incarcerated for six months. As a result, Haas again discharged him
from the IOP.
With regards to the Batterer’s Intervention Program (BIP), Father attended
orientation on October 20, 2009 and a group session on October 22, 2009. Then, after
Father blew a 0.101 on the breathalyzer during his individual therapy session with Haas
on October 29, 2009, Father left the facility and did not return to his BIP group.
7
Consequently, on November 25, 2009, he was discharged for excessive absences. One
year later, shortly prior to the termination hearing, Father returned to the BIP and went
through group orientation on October 12, 2010. At the time of the first termination
hearing, he was still in the process of resuming the BIP.
Like Father, Mother’s participation in services was inconsistent. Sheryl Talbott,
an addictions specialist, conducted a substance abuse assessment of Mother in February
of 2010 and recommended that she attend an IOP. Mother began treatment in the IOP,
but was non-compliant and suspended from the program due to poor attendance. In order
to resume the treatment, Mother was required to provide verification of attendance at a
number of AA meetings, but she falsified those verification documents and was
discharged from the program. Subsequently, Mother was discharged from a substance
abuse program at YWCA for noncompliance with rules and for inadequate attendance.
During the CHINS and termination proceedings, Mother also continued her
involvement in criminal activity. Around October of 2009, Mother was convicted of
conversion and was incarcerated for approximately two weeks. On June 17, 2010,
Mother was convicted of theft for stealing alcohol. As a result, Mother was charged with
violating her probation for her child neglect conviction and was incarcerated for four
months. On October 11, 2010, she was released from incarceration and was placed under
house arrest in Community Corrections.
On May 6, 2010, DCS filed a petition requesting the involuntary termination of
Mother and Father’s parental rights as a result of their failure to complete services. On
8
October 19, 2010, the trial court conducted a hearing. At the hearing, Mother testified
that she had remained sober for the previous four and a half months, although she
admitted that she had spent four of those months incarcerated. She also testified that she
was resuming treatment for her addiction to alcohol and had started her classes to receive
her GED. Father testified that he had completed some of the services, including
parenting classes, a parenting assessment, and all but the after-care portion of the IOP.
He was also preparing to begin classes at Ivy Technical College.
At the close of the presentation of the evidence, the trial court continued the
hearing so that Dr. Wax, who was absent, could testify at a later date. On January 13,
2011, the trial court reconvened and Dr. Wax testified. The following day, the trial court
issued an order taking the matter under advisement for a period of eight months and set a
status hearing for September 15, 2011. The trial court ordered the parents to be 100%
compliant with services during the eight month time period, including: (1) submitting to
random drug and/or alcohol screens; (2) providing proof of regular, consistent attendance
at AA meetings; (3) completing an IOP or the IOP after-care; (4) regularly attending
parenting classes and individual therapy; (5) completing medication consultations and
following all instructions with regard to the prescribed medicines; (6) continuing
visitations with E.M.R.; and (7) completing and providing proof of job applications and
searches. The trial court also required Father to attend and complete the BIP.
Over the following eight months, Mother and Father completed some of the
services ordered by the trial court. Mother completed her IOP, a psychiatric evaluation,
9
and parenting classes. She also enrolled in the Young Mother’s Program, which is a
home-based case management program that helps young mothers in areas such as
housing, education, employment, and parenting. However, Mother was not 100%
compliant with services. Mother missed several appointments with the Young Mother’s
Program in July and August of 2011, missed a follow-up psychiatric appointment, failed
to show up for individual therapy appointments on three occasions, and cancelled
multiple visits with E.M.R. On July 4, 2011, Mother relapsed and tested positive for
alcohol.
In addition, Mother became pregnant with another child. She met the father,
G.M., through her substance abuse classes. Mother planned the pregnancy and chose
G.M. as the father. On September 12, 2011, E.M.R.’s court appointed special advocate,
Judy Lane (Lane), reported to the trial court that she was concerned that the pregnancy
was not in E.M.R.’s best interests and demonstrated Mother’s immaturity. Her opinion
was based on the fact that at the time of Mother’s decision to become pregnant, Mother
did not have stable housing, was not employed, and was likely to have a hard time
gaining employment due to her previous felony conviction. In addition, Lane was
concerned because at the time of her report, G.M. was “[o]n the run” from authorities for
violating his work release. (Vol. II Tr. p. 37).
Father completed many of his court-ordered services, including parenting classes,
the IOP, and the BIP. By the end of the eight months he had also begun classes at Ivy
Technical College and employment at Rally’s. However, like Mother, Father missed a
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follow-up psychiatric appointment, failed to show up for individual therapy
appointments, and cancelled multiple visits with E.M.R. On July 3, 2011, Father
relapsed and consumed alcohol. That night, Father’s mother called the police and told
them that she did not want Father in her house because he was intoxicated. The police
arrested Father and charged him with public intoxication, resisting arrest, disorderly
conduct, and battery.
On September 15 and 30, 2011, the trial court held a status hearing regarding
DCS’ petition to terminate Mother and Father’s parental rights. At the time of the
September 15, 2011 hearing, Father’s charges stemming from the July 3, 2011 incident
were still pending. At the conclusion of the evidence, the trial court took the matter
under advisement and on October 13, 2011, the trial court issued an order to terminate
Mother and Father’s parental rights to E.M.R.
Mother and Father now appeal. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
We recognize that the Fourteenth Amendment to the United States Constitution
protects the traditional right of parents to establish a home and raise their children. In re
J.S.O., 938 N.E.2d 271, 274 (Ind. Ct. App. 2010). A parent’s interest in the care,
custody, and control of his or her children is arguably one of the oldest of our
fundamental liberty interests. Id. However, the trial court must subordinate the interests
of the parents to those of the children when evaluating the circumstances surrounding a
11
termination of a parent-child relationship. In re J.H., 911 N.E.2d 69, 73 (Ind. Ct. App.
2009), trans. denied. Parental rights may therefore be terminated when the parents are
unable or unwilling to meet their parental responsibilities. Id.In reviewing termination proceedings on appeal, this court must not reweigh the
evidence nor assess the credibility of the witnesses. Id. We consider only the evidence
that supports the trial court’s decision and the reasonable inferences drawn therefrom. Id.Where, as here, the trial court has entered findings of fact and conclusions of law, we
apply a two-tiered standard of review. Id. First, we determine whether the evidence
supports the findings, and second, whether the findings support the conclusions of law.
Id. In deference to the trial court’s position to assess the evidence, we set aside the trial
court’s findings and judgment terminating the parent-child relationship only if they are
clearly erroneous. Id.I. Findings of Fact
Mother and Father’s first argument on appeal is that the trial court’s judgment is
erroneous because it was supported by an erroneous finding of fact. The trial court’s
finding of fact number five stated that “[m]edical professionals noted that [E.M.R.] had
sustained a skull fracture that was healing at the time of removal.” (Appellant’s App. p.
7). As Mother and Father note, Roberta Hibbard, a professor of pediatrics at the Indiana
School of Medicine, evaluated E.M.R.’s case and determined that the alleged skull
fracture was instead a bruise.
12
We agree with Mother and Father that this finding was erroneous. However, we
conclude that the error was harmless as the remaining findings of fact are more than
sufficient to support the trial court’s judgment. In order to terminate Mother and Father’s
parental rights, DCS was required to prove by clear and convincing evidence:
(B) that one of the following [was] true:
(i) There [was] a reasonable probability that the conditions
that resulted in the child’s removal or the reasons for
placement outside the home of the parents [would] not be
remedied.
(ii) There [was] a reasonable probability that the continuation
of the parent-child relationship [posed] a threat to the well-
being of the child.
(iii) The child [had], on two (2) separate occasions, been
adjudicated [] in need of services[.]
(C) that termination [was] in the best interests of the child.
Ind. Code § 31-35-2-4(b)(2)(B), -(C); Bester v. Lake Cnty. Office of Family and
Children,839 N.E.2d 143, 148 (Ind. 2005). Clear and convincing evidence as a standard
of proof requires the existence of a fact to “be highly probable.” Hardy v. Hardy, 910
N.E.2d 851, 859 (Ind. Ct. App. 2009). It need not reveal that “the continued custody of
the parent[] is wholly inadequate for the child’s very survival.” Bester, 839 N.E.2d at
148 (quoting Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1233 (Ind.
1992)). Rather, it is sufficient to show that the child’s emotional and physical
development are threatened by the parent’s custody. Id.The trial court here found that the conditions that led to E.M.R.’s removal and
continued placement outside of the parents’ home would not be remedied. We have held
that when determining whether there is a reasonable probability that a parent will not
13
remedy the conditions justifying a child’s removal from the home, the trial court must
judge a parent’s fitness to care for his or her child at the time of the termination hearing.
Rowlett v. Vanderburgh Cnty. Office of Family and Children, 841 N.E.2d 615, 621 (Ind.
Ct. App. 2006). The trial court must evaluate the parent’s habitual patterns of conduct to
determine whether there is a substantial probability of future neglect or deprivation of the
child. C.T. v. Marion Cnty. Dept. of Child Services, 896 N.E.2d 571, 578 (Ind. Ct. App.
2008), trans. denied. DCS is not required to rule out all possibilities of change; rather, it
need only establish “that there is a reasonable probability that the parent’s behavior will
not change.” Id. (quoting In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007)).
Notwithstanding the trial court’s erroneous finding of fact number five, the trial
court also found that:
3. The original reason for involvement by the DCS included alcohol abuse
by both parents.
4. Alcohol abuse remains a problem for both parents.
* * *
13. A status hearing was held regarding the completion of services on
September 15, 2011 and completed on September 30, 2011.
14. Several services ordered by the [c]ourt had not been completed.
15. Neither parent has complied sufficiently with orders of the [c]ourt to
progress to visits within their homes.
16. [Dr. Wax], who conducted psychoparenting assessments of both
parents, noted “grave concerns” regarding their ability to parent [E.M.R.].
17. Mother remains on probation while Father is facing criminal charges.
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18. E.M.R. has not bonded with his parents.
19. Mother chose to become pregnant again while involved with the
DuComb Center, a local agency supervising her probation. The father of
the unborn child is a convicted felon and is currently “on the run.”
20. Father has an upcoming hearing on his criminal charges.
21. E.M.R.’s lack of relationship with his parents exists, at least in part,
due to the occasions when the parents have chosen to miss visits.
22. Mother and Father have each suffered relapses in their recovery from
alcohol addiction. Services were provided by DCS to assist the parents;
services they failed to complete.
23. Mother tested positive for alcohol once and Father refused to submit to
a test at one point.
24. Neither parent completed individual therapy.
25. Both parents failed to follow-up on psychiatric appointments.
26. Neither parent has found suitable independent housing. Father resides
with his mother, who he has described as an alcoholic who drinks daily.
Mother lives with her grandmother currently.
27. Mother has participated in the Young Mother’s Program to find
housing. Her level of commitment is proven by her failure to attend that
program’s meetings in the month of August.
28. Mother remains unemployed. She worked for a short time but the job
proved to “not be a good fit.”
29. Father, to his credit, is working and attending Ivy Tech. He has,
however, failed to complete the services mandated in the January order.
(Appellant’s App. pp. 7-8). These findings are more than sufficient to support the trial
court’s conclusion that the conditions that led to E.M.R.’s removal and continued
15
placement outside of the home would not be remedied. Thus, we conclude that the trial
court’s error of including a faulty finding of fact number five was harmless.
Further, although the trial court erroneously cited E.M.R.’s alleged skull fracture
in its conclusions regarding E.M.R.’s best interests, the findings with respect to E.M.R.’s
best interests are also more than sufficient to support the trial court’s termination of
Mother and Father’s parental rights. In determining what is in the best interests of a
child, the trial court is required to look beyond the factors identified by DCS to the
totality of the evidence. In re T.F., 743 N.E.2d 766, 776 (Ind. Ct. App. 2001). In doing
so, the trial court must subordinate the interests of the parents to those of the child
involved. Id. In analyzing a child’s best interests, we recognize that permanency is a
central consideration. In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). The trial court
need not wait until a child is irreversibly influenced such that his physical, mental, and
social growth is permanently impaired before terminating the parent-child relationship.
In re T.F., 743 N.E.2d at 776.
Here, the trial court granted Mother and Father one eight month extension of time
to finish the services provided by DCS. As a condition of this extension, the trial court
ordered Mother and Father to be 100% compliant with the services. Although they did
complete many of the services, Mother and Father missed follow-up psychiatric
appointments, failed to show up for individual therapy appointments, and cancelled
multiple visits with E.M.R. Both parents had relapses, and Father engaged in criminal
activity. These actions demonstrated that, as the trial court concluded, Mother and Father
16
were not committed to sobriety and to acting as proper parents for E.M.R. Thus, we find
that there was sufficient evidence supporting the trial court’s conclusion that termination
was in E.M.R.’s best interests, and the trial court’s erroneous reference to E.M.R.’s
alleged skull fracture was therefore harmless.
II. Permanency Plan
Next, Mother and Father allege that the DCS did not present a satisfactory plan
regarding E.M.R.’s future care and treatment. DCS established during the evidentiary
hearings that E.M.R.’s foster mother wished to adopt him. Mother and Father now claim
that this placement is questionable because E.M.R.’s foster mother has seven children
living with her, including E.M.R., and DCS did not establish whether the square footage
of the foster mother’s house is sufficient to properly house all seven children.
In order for the trial court to terminate a parent-child relationship, the trial court
must find that there is a satisfactory plan for the care and treatment of the child. In re
S.L.H.S., 885 N.E.2d 603, 618 (Ind. Ct. App. 2008). This plan does not need to be
detailed, so long as it offers a general sense of the direction in which the child will be
going after the parent-child relationship is terminated. Id. We have found that a general
plan of adoption is acceptable even if DCS has not yet identified a specific adoptive
family. See In re D.D., 804 N.E.2d 258, 268 (Ind. Ct. App. 2004), trans. denied.
As DCS’ plan was not required to be “detailed,” we conclude that DCS was not
required to provide Mother and Father with the exact square footage of Mother’s home.
See S.L.H.S., 885 N.E.2d at 618. Instead, a general sense of the plan for E.M.R. was
17
sufficient. The trial court satisfied this requirement when it concluded that “E.M.R.
remains in his original foster placement. He has thrived there. His foster mother wishes
to adopt [him]. She offers this child stability, consistency, and love.” (Appellant’s App.
p. 9). As the parents have not otherwise disputed the foster mother’s ability to parent
E.M.R., we conclude that the trial court did not err in determining that her adoption of
E.M.R. was a suitable plan for his care and treatment.
III. Mother’s Petition for an Updated Interview
Mother separately raises the issue of whether the trial court abused its discretion
when it denied her petition for an updated interview. Dr. Wax conducted an assessment
of Mother on May 7, 2009, whereby he formulated opinions regarding her sobriety and
her ability to parent E.M.R. On November 4, 2010, approximately six months after DCS
filed its petition to terminate Mother’s parental rights, Mother filed a petition for an
updated interview with Dr. Wax. In her petition, she claimed that Dr. Wax’s assessment
was outdated as she had become sober and more mature since she had met with him. On
December 9, 2010, after a hearing, the trial court denied Mother’s petition. Mother now
argues that the trial court denied her due process as it prevented her from presenting
evidence of her improved situation by way of expert analysis.
The Due Process Clause of the United States Constitution prohibits state action
that deprives a person of life, liberty, or property without a fair proceeding. Thompson v.
Clark Cnty. Div. of Family and Children, 791 N.E.2d 792, 794-95 (Ind. Ct. App. 2003),
trans. denied. This court has held that “[t]he fundamental requirement of due process is
18
the opportunity to be heard at a meaningful time and in a meaningful manner.” Id. at
795. The nature of process due in a termination of parental rights proceeding turns on the
balancing of three factors: (1) the private interests affected by the proceeding; (2) the
risk of error created by the State’s chosen procedure; and (3) the countervailing
governmental interest supporting use of the challenged procedure. Id. The balancing of
these factors recognizes that although due process is not dependent on the underlying
facts of the particular case, it is nevertheless “flexible and calls for such procedural
protections as the particular situation demands.” Id.Preliminarily, we note that Mother has not satisfied her burden on appeal by
providing us with the transcript of the December 9, 2010 hearing. Without this transcript,
we cannot determine whether the trial court abused its discretion and violated her due
process rights. Nevertheless, we conclude that even if the trial court did abuse its
discretion when it denied Mother’s petition for an updated interview, the error was
harmless as Dr. Wax’s testimony was not the sole basis for the termination of her parental
rights. First, even though the trial court allowed Dr. Wax to testify without updating his
assessment of Mother, Mother had the opportunity to cross-examine him at the hearing.
We have previously commented that cross-examination is “fundamental and essential to a
fair trial,” and thus essential for due process. Id. As a result of this cross-examination,
Mother was able to ask Dr. Wax questions regarding how some of her conditions, if
remedied, would have alleviated Dr. Wax’s concerns or changed his recommendations.
Mother then called her counselor at Community Corrections, Peggy Karamalegos
19
(Karamalegos) as a rebuttal witness to Dr. Wax. Karamalegos testified that Mother had
opened up more over the previous year and was determined to overcome her alcohol
addiction and to become a good parent. Through both her cross-examination of Dr. Wax
and her rebuttal examination of Karamalegos, Mother was able to emphasize that Dr.
Wax’s assessment was outdated and that she had improved since the last time he had seen
her.
Most significantly, though, the trial court did not terminate Mother’s parental
rights as a result of Dr. Wax’s testimony. Instead, the trial court allowed Mother an
additional eight months to comply with its order. Thus, Mother did not suffer any harm
from the alleged due process violation. In light of these facts, we conclude that even if
the trial court did abuse its discretion, Mother was not denied due process as the error
was harmless.
IV. Breathalyzer Device
Finally, Father separately raises the issue of whether the trial court abused its
discretion when it admitted evidence of his breathalyzer test results without verifying that
the breathalyzer device was properly calibrated. At trial, the program specialist for the
BIP, James Sapp (Sapp), testified that Father “blew a .101” on the breathalyzer during his
individual therapy appointment with Sapp on October 29, 2009. (Vol. I Tr. p. 23).
During cross-examination, Father asked Sapp what model of breathalyzer he had used
and whether it had been calibrated that week. Sapp responded to both questions that he
did not know. Because Sapp could not verify that the breathalyzer had been properly
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calibrated, Father now argues that the result of his breathalyzer test was inadmissible at
trial.
We review a trial court’s decision to admit or exclude evidence for an abuse of
discretion. In re S.W., 920 N.E.2d 783, 788 (Ind. Ct. App. 2010). An abuse of discretion
occurs if a trial court’s decision is clearly against the logic and effect of the facts and
circumstances before the trial court. Id. If a trial court abuses its discretion by admitting
the challenged evidence, we will only reverse if “the error is inconsistent with substantial
justice” or if “a substantial right of the party is affected.” Id. (quoting Payne v. State, 854
N.E.2d 7, 13 (Ind. Ct. App. 2006)).
Generally, a party must object to evidence at the time it is offered into the record.
Perez v. Bakel, 862 N.E.2d 289, 295 (Ind. Ct. App. 2007). A party that fails to timely
object waives the right to have the evidence excluded at trial and the right to assert on
appeal that the admission of the evidence was erroneous. Id. As Father failed to object
to the admission of Sapp’s testimony regarding the result of the breathalyzer test, we
conclude that he has waived his claim regarding its admissibility.
Nevertheless, Father now attempts to avoid waiver by arguing that the admission
of the breathalyzer test result was a fundamental error. The fundamental error exception
is an exception to the general rule that the failure to object at trial constitutes a procedural
default precluding consideration of the issue on appeal. S.D. v. State, 937 N.E.2d 425,
429 (Ind. Ct. App. 2010), trans. denied. The exception is extremely narrow and applies
only when the error constitutes a blatant violation of basic principles, the harm or
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potential for harm is substantial, and the resulting error denies the defendant fundamental
due process. Id. It is available only in egregious circumstances. Id.We conclude that the harm that resulted from the admission of Father’s
breathalyzer test results was insubstantial. The breathalyzer test occurred on October 29,
2009—almost two years prior to the trial court’s termination of Father’s parental rights.
Father had subsequent issues with alcohol, as he admitted in his testimony, and as was
evident in his subsequent conviction for driving under the influence and his subsequent
July 3, 2011 arrest for public intoxication. The trial court did not even cite the
breathalyzer test in its findings of fact or conclusions of law. The most relevant of the
trial court’s findings was number twenty-two, which stated that “Mother and Father have
each suffered relapses in their recovery from alcohol addiction. Services were provided
by DCS to assist the parents; services they failed to complete.” (Appellant’s App. p. 8).
As we stated above, absent evidence of Father’s breathalyzer test, there was still evidence
to support the trial court’s conclusion that Father had suffered relapses. In addition, it is
apparent in the trial court’s finding that it considered the evidence that Father had failed
to utilize the services DCS had provided to help him recover from his addiction as
equally significant as Father’s relapses. In light of these circumstances, we cannot
conclude that the trial court committed a fundamental error in allowing Sapp to testify
about the result of Father’s breathalyzer test. Thus, the trial court did not abuse its
discretion.
CONCLUSION
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Based on the foregoing, we conclude that (1) the trial court’s findings of fact
supported its termination of Mother and Father’s parental rights to E.M.R.; (2) the trial
court did not err in finding that DCS had provided a satisfactory plan for E.M.R.’s care
and treatment; (3) the trial court did not abuse its discretion when it denied Mother’s
petition for an updated interview; and (4) the trial court did not abuse its discretion when
it allowed DCS to submit evidence from a breathalyzer test without confirming that the
breathalyzer had been calibrated within the week that the test was performed.
Affirmed.
NAJAM, J. and DARDEN, J. concur
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