In the Matter of the Termination of the Parent-Child Relationship of B.J., J.J., (Children) and M.R. (Mother) M.R. (Mother) 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 Oct 26 2017, 9:24 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
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
T. Andrew Perkins Curtis T. Hill, Jr.
Peterson Waggoner & Perkins, LLP Attorney General of Indiana
Rochester, Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination October 26, 2017
of the Parent-Child Relationship Court of Appeals Case No.
of B.J., J.J., (Children) and M.R. 25A03-1705-JT-993
(Mother); Appeal from the Fulton Circuit
Court
M.R. (Mother), The Honorable A. Christopher
Appellant-Respondent, Lee, Judge
Trial Court Cause No.
v. 25C01-1608-JT-130
25C01-1608-JT-131
The Indiana Department of
Child Services,
Appellee-Petitioner
May, Judge.
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[1] M.R. (“Mother”) appeals the involuntary termination of her parental rights to
B.J. and J.J. (collectively, “Children”). She presents many issues for our
consideration, which we consolidate and restate as:
1. Whether the Department of Child Services (“DCS”) presented
sufficient evidence the conditions under which Children were
removed would not be remedied;
2. Whether DCS presented sufficient evidence termination was
in the best interests of Children; and
3. Whether the trial court abused its discretion when it admitted
alleged hearsay into evidence.
We affirm.
Facts and Procedural History
[2] Mother and Jo.J. (“Father”) 1 are parents of B.J. and J.J., born January 5, 2008,
and November 24, 2009, respectively. On March 18, 2011, DCS removed
Children from Mother’s care after receiving a report J.J. had tested positive for
cocaine after being left in the care of Mother’s boyfriend, who also tested
positive for cocaine. Additionally, Mother was not “home when a transport
bus attempted to drop off [B.J.],” and the family was residing in a motel which
was in a condition “below standards.” (Tr. at 52-3.)
1
Father’s rights were also terminated, but he does not participate in this appeal.
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[3] On May 18, 2011, the trial court adjudicated Children as Children in Need of
Services (“CHINS”), but they were returned to Mother’s care for a temporary
home trial visit. Two or three months later, Children were removed from
Mother’s care at Mother’s request and placed into foster care. On April 4,
2014, Children were returned to Mother’s care and the CHINS case was closed
based on Mother’s compliance with services, improvement based on those
services, and stable housing with Mother’s boyfriend.
[4] On October 7, 2014, DCS again removed Children from Mother’s care after
DCS received a report Mother’s older son, thirteen-year-old Z.D., was smoking
marijuana and drinking alcohol while he was supposed to be providing care for
Children. Additionally, no one present at the home had Mother’s contact
information and the home was not clean. On February 24, 2015, the trial court
adjudicated Children as CHINS. On March 13, 2015, the trial court ordered
Mother to participate in a mental health assessment, homemaker services,
medication management, home-based case management, and individual
counseling; follow all recommendations from those assessments and services;
and participate in supervised visits with Children.
[5] In April 2016, the State charged Mother with Level 4 felony sexual misconduct
with a minor for a sexual relationship she admitted having with a fifteen-year-
old friend of Z.D. from October 2015 to approximately February 2016. Mother
did not participate in services to assist in obtaining stable housing after her
arrest, and services were discontinued in December 2016. Mother attended the
supervised visits but, after some conflict, those visits were changed to
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therapeutic visits. On August 24, 2016, DCS filed a petition for termination of
Mother’s parental rights to Children.
[6] On February 3, 2017, the trial court held a fact-finding hearing on DCS’s
termination petition. On April 7, 2017, the trial court issued an order
terminating Mother’s parental rights to Children.
Discussion and Decision
[7] We review termination of parental rights with great deference. In re K.S., D.S.,
& B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh
evidence or judge 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
juvenile court’s unique position to assess the evidence, we will set aside a
judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied
534 U.S. 1161 (2002).
[8] “The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.” In
re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must
subordinate the interests of the parents to those of the children, however, when
evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d
at 837. The right to raise one’s own children should not be terminated solely
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because there is a better home available for the children, id., but parental rights
may be terminated when a parent is unable or unwilling to meet her parental
responsibilities. Id. at 836.
[9] To terminate a parent-child relationship, the State must allege and prove:
(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.
Ind. Code § 31-35-2-4(b)(2). The State must provide clear and convincing proof
of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g
denied. If the court finds the allegations in the petition are true, it must
terminate the parent-child relationship. Ind. Code § 31-35-2-8.
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[10] When, as here, a judgment contains specific findings of fact and conclusions
thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of
Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the
evidence supports the findings and 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 juvenile court’s
decision, we must affirm. In re L.S., 717 N.E.2d at 208.
[11] Mother challenges the court’s conclusions the conditions under which Children
were removed would not be remedied, the continuation of the parent-child
relationship posed a risk to Children, and termination was in the best interests
of Children. 2
Reasonable Probability Conditions Would Not Be Remedied
[12] The trial court must judge a parent’s fitness to care for her children at the time
of the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App.
2010). Evidence of a parent’s pattern of unwillingness or lack of commitment
to address parenting issues and to cooperate with services “demonstrates the
2
The trial court found the conditions under which Children were removed would not be remedied and the
continuation of the parent-child relationship posed a threat to Children. DCS does not have to prove both.
The statute is written in the disjunctive, and DCS must prove either by clear and convincing evidence. See
Ind. Code § 31-35-2-4. Because the evidence supports the conclusion there was a reasonable probability
conditions leading to Children’s removal would not be remedied, we need not address whether the
continuation of the parent-child relationship posed a threat to Children’s well-being. See In re L.S., 717
N.E.2d 204, 209 (Ind. Ct. App. 1999), reh’d denied, trans. denied, cert. denied 534 U.S. 1161 (2002) (because
statute is written in the disjunctive, court needs to find only one requirement to terminate parental rights).
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requisite reasonable probability” that the conditions will not change. Lang v.
Starke Cty. OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied.
[13] Here, Children were removed from Mother’s care because Children “had been
left by their mother without adult supervision.” (App. Vol. II at 62.) 3
Additionally, the home “did not have running water, clothing was scattered
about, dishes with moldy food were found throughout the home, animal feces
was lying on the floor, and the children’s older brother and his friends were
smoking marijuana while the younger siblings were present[.]” (Id.) Regarding
earlier CHINS adjudications involving Children, the trial court found those
cases “were initially based on Mother’s failure to provide proper supervision,
inappropriate housing, and Mother’s boyfriend [A.C.] and her child, [J.J.,] both
testing positive for Cocaine.” (Id. at 61.)
[14] Mother argues three of the trial court’s findings 4 do not support the conclusion
she had not remedied the conditions under which Children were removed.
These findings stated:
3
The trial court entered identical orders of termination for each child. We cite the order regarding B.J.
4
Mother also contests Findings 10 and 11:
10. At dismissal of the 2011 CHINS cases, DCS reunified the family but did so with lingering
concerns. Delay in closure of these cases resulted from Mother’s failure to maintain stable housing
and employment, and her failure to participate in services during the earlier stages of the cases.
Mother also had unstable, and dependent, relationships with a number of different partners.
11. At dismissal of the 2011 CHINS cases in 2014, DCS felt permanent reunification was largely
dependent upon Mother maintaining a relationship with her current boyfriend, [S.W.], since the
mother did not have her own housing and was not currently employed.
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46. At the time of the termination hearing the Mother had
housing with a female roommate and which was [sic] owned free
and clear by the roommate, and which has room for two
children.
47. At the time of the termination hearing the Mother was
employed full time.
48. The Mother has participated in visits with the children and
was generally compliant with services.
(Id. at 66.) Based on thereon, Mother contends termination was not supported
by sufficient evidence and findings.
[15] When assessing a parent’s fitness to care for a child, the trial court should view
the parent as of the time of the termination hearing and take into account the
changes that have occurred during the proceedings. In re C.C., 788 N.E.2d 847,
854 (Ind. Ct. App. 2003), trans. denied. However, the trial court must also
“evaluat[e] the parent’s habitual patterns of conduct to determine the
probability of future neglect or deprivation of [a] child.” In re J.T., 742 N.E.2d
509, 512 (Ind. Ct. App. 2001), trans. denied.
(App. Vol. II at 61.) Mother asserts the language of the findings “reference DCS’s perception, and not the
trial court’s view[.]” (Br. of Appellant at 19.) Based thereon, Mother argues “DCS’s perception of events,
not the events themselves, somehow support the trial court’s findings and the resulting termination. This
would effectively grant a fact-finding role to DCS.” (Id. at 20.)
We disagree. The trial court must evaluate “the parent’s habitual patterns of conduct to determine the
probability of future neglect or deprivation of child.” In re J.T., 742 NE.2d 509, 512 (Ind. Ct. App. 2001),
trans. denied. We categorize these statements as a reiteration of the history of the case, and nothing more.
While they might restate DCS’s position, they are stated as facts found by the trial court. Under J.T., they
are appropriate for the analysis of Mother’s habitual patterns of conduct.
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[16] While it is laudable Mother had adequate housing and employment at the time
of the termination hearing, DCS also presented evidence Mother lived in four
different residences in 2016, and “failed to follow recommendations to process
a HUD application that might enable her to obtain appropriate housing.”
(App. Vol. II at 64.) Mother presented no evidence of employment, outside of
her own testimony. Mother testified she had worked at Modern Materials for
two weeks and worked at Subway for six months prior. She described her
schedule, but was not sure exactly how much she made per hour. Thus, while
she had housing and employment at the time of the hearing, her situation with
neither could yet be considered stable.
[17] Regarding her compliance with services, the record indicates Mother
participated in the services offered to her. However, “simply going through the
motions of receiving services alone is not sufficient if the services do not result
in the needed change, or only result in temporary change.” In re J.S., 906
N.E.2d 226, 234 (Ind. Ct. App. 2009). Mother does not seem to have benefitted
from the services she completed. As of the termination hearing, her housing
and employment had only recently stabilized, and there existed pending
criminal charges against her for Level 4 felony sexual misconduct with a minor
for incidents involving a fifteen-year-old friend of Z.D. While Mother is
innocent until proven guilty, “[i]ndividuals who pursue criminal activity run the
risk of being denied the opportunity to develop positive and meaningful
relationships with their children.” Matter of A.C.B., 598 N.E.2d 570, 572 (Ind.
Ct. App. 1992).
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[18] Mother’s arguments are invitations for us to reweigh the evidence and judge the
credibility of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265(appellate court does not reweigh evidence or judge the credibility of witnesses).
We therefore conclude DCS presented sufficient evidence to prove there was a
reasonable probability the conditions under which Children were removed from
Mother’s care would not be remedied.
Best Interests of Children
[19] In determining what is in the children’s best interests, the juvenile court is
required to look beyond the factors identified by DCS and consider the totality
of the evidence. In re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans.
dismissed. A parent’s historical inability to provide a suitable environment,
along with the parent’s current inability to do so, supports finding termination
of parental rights is in the best interests of the child. In re A.L.H., 774 N.E.2d
896, 990 (Ind. Ct. App. 2002). The recommendations of a DCS case manager
and court-appointed advocate to terminate parental rights, in addition to
evidence that conditions resulting in removal will not be remedied, are
sufficient to show by clear and convincing evidence that termination is in the
children’s best interests. In re J.S., 906 N.E.2d at 236.
[20] Here, Mother argues termination is not in the best interests of Children because
she shares a bond with them and “[t]he children were difficult to handle
regardless of placement[.]” (Br. of Appellant at 15.) DCS acknowledged the
bond between Mother and Children during its opening statements, and the
supervised parenting coordinator indicated Children were “always excited” to
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see Mother and “appear very attached” to her. (Tr. at 193.) Additionally,
Children’s therapists recognized the behavioral issues for which Children were
being treated were long-term and ongoing. B.J.’s therapist testified, “[w]ith the
therapy we’ve been able to manage some things but a lot of behaviors have
continued throughout the two years I’ve seen him.” (Id. at 78.)
[21] However, B.J.’s therapist also testified B.J. “needs stability and security and
predictability in his life more than anything and a feeling of safety and security
so he needs a home where it’s all those things can be established and
maintained and I don’t - I don’t have any evidence this would happen with his
mom.” (Id. at 80.) J.J.’s therapist similarly stated:
I think it would be really harmful to just continue to change [the
relationship between Mother and J.J.] that he does have just -
he’s already dealing with like attachment issues and anger and all
that other things that are going on so I think it would be really
hard on him to continue to be moved around.
(Id. at 102.) Additionally, Children’s GAL testified she “[didn’t] have any
doubt,” (id. at 208), that termination was in Children’s best interests because
[Children] have never known stability with their mom, and they
need to have it, and I don’t foresee that happening with their
mom, even though she wants it to happen. She clearly wants it
to happen and she clearly has the intention of it happening, but it
hasn’t happened, and if anything - if nothing else, you have to
learn from history, and her history of stability is not good with
the kids.
(Id. at 204.)
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[22] Mother’s arguments are invitations for us to reweigh the evidence and judge the
credibility of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265(appellate court does not reweigh evidence or judge the credibility of witnesses).
Based on the evidence and testimony, we conclude DCS presented sufficient
evidence to prove termination of Mother’s parental rights was in the best
interests of Children. 5
Admission of Hearsay
[23] 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 on impermissible considerations. Id. Even if a trial court errs in a ruling
5
Mother also argues a “generalized need for permanency and stability does not, without more, support
termination of Mother’s rights, particularly when the children are opposed to the stated DCS plan for
permanency.” (Br. of Appellant at 20.) In support of her argument, she cites H.G. v. Indiana DCS, 959
N.E.2d 272 (Ind. Ct. App. 2011), reh’g denied, trans. denied, in which we held, “A child’s need for stability is of
great importance; however, mere invocation of words like ‘stability’ or ‘permanency’ does not suffice to
terminate parental rights.” Id. at 293. H.G. is distinguishable.
In H.G., the trial court noted the improvement mother and fathers had made to comply with the trial court’s
dispositional order and gain back custody of their children. The mother and one of the fathers, who were
incarcerated, had taken multiple classes to lessen their time in prison and had continued relationships with
the children. The other father had secured and provided proof of full time employment and was diligently
looking for a suitable house. Here, Mother testified she had housing and employment, but provided no
evidence to support those assertions. While Mother had completed some services, she ignored DCS’s request
to fill out paperwork for suitable independent housing. Finally, she was facing possible incarceration for her
sexual relationship with a fifteen-year-old boy, which she admitted participating in even after she learned the
boy was underage. We cannot say H.G. applies.
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on the admissibility of evidence, we will reverse only if the error is inconsistent
with substantial justice. Id.[24] Mother argues the trial court abused its discretion when it allowed Family Case
Manager (“FCM”) Bryan Holcomb to testify regarding Mother’s plan to move
into a trailer at the beginning of the CHINS case linked to the termination case.
Holcomb testified he received the information from the notes of a former FCM,
who died suddenly during the proceedings. Mother objected to the admission
of the evidence on the basis of hearsay, and the trial court first sustained that
objection. DCS then laid a foundation for the evidence by asking questions
regarding how Holcomb and other FCMs kept records. Mother again objected
when Holcomb began to testify regarding the former FCM’s notes, and the trial
court overruled, stating:
I am - given the - frankly the unusual history of this part, the fact
that he is eluding [sic] to notes that are evidently kept in the
progression of the case by a family case manager I’m going to
allow him to provide testimony because I think that he has to
have some of the history in order to kind of formulate how he
approached the case moving forward so I’m going to overrule
your objection and allow the testimony.
(Tr. at 117.)
[25] 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). In
the event the trial court made an error in admitting hearsay testimony from
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Holcomb, any error made was harmless. Indiana Appellate Rule 66(A) states,
regarding harmless error:
No error or defect in any ruling or order or in anything done or
omitted by the trial court or by any of the parties is ground for
granting relief or reversal on appeal where its probable impact, in
light of all the evidence in the case, is sufficiently minor so as not
to affect the substantial rights of the parties.
Additionally, “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.” In re E.T., 808 N.E.2d 639, 645-6 (Ind.
2004).
[26] Here, DCS presented evidence Mother had lived four places over the course of
one year, had participated in services but had not seemed to benefit from them,
and had pending charges filed against her for sexual misconduct with a minor.
Children had been in placement for five of the previous six years, and while
they still had behavioral issues, their therapists felt improvement was being
made and it was in Children’s best interest to have a stable home, which
Mother could not provide. As there existed substantial evidence beyond the
contested hearsay, any error in its admission was harmless. See id. (improper
admission of evidence harmless when there exists additional substantial
evidence to support trial court’s decision).
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Conclusion
[27] DCS presented sufficient evidence there was a reasonable possibility the
conditions under which Children were removed from Mother’s care would not
be remedied and termination of Mother’s parental rights were in Children’s best
interests. In addition, any error in the admission of FCM Holcomb’s testimony
regarding the former FCM’s observations of Mother’s housing situation was
harmless. Accordingly, we affirm.
[28] Affirmed.
Barnes, J., and Bradford, J., concur.
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