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.)

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
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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.
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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
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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.
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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.
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(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.
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[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
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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.
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[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
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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.
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