In the Matter of the Termination of the Parent-Child Relationship of D.B.M. and H.B. (Father) v. Indiana Department of Child Services , 20 N.E.3d 174 ( 2014 )

FOR PUBLICATION
Nov 03 2014, 10:14 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
GREGORY L. FUMAROLO GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
ROBERT J. HENKE
CHRISTINE REDELMAN
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF )
D.B.M. (Minor Child) and )
)
H.B. (Father), )
)
Appellant-Respondent, )
)
vs. ) No. 02A03-1405-JT-171
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Charles F. Pratt, Judge
The Honorable Lori K. Morgan, Magistrate
Cause No. 02D08-1309-JT-103
November 3, 2014
OPINION – FOR PUBLICATION
VAIDIK, Chief Judge
Case Summary
H.B.’s (“Father”) rights to his son D.B.M. were terminated earlier this year. He
now appeals, arguing that the testimony of an Allen County Department of Child
Services (“ACDCS”) supervisor should not have been admitted at the termination
hearing. He contends that without this testimony, there is insufficient evidence to support
the trial court’s order terminating his parental rights. We conclude that any error in
admitting this evidence was harmless, and even setting this evidence aside, there is
sufficient evidence to support the termination order. We affirm.
Facts and Procedural History
D.M. (“Mother”) gave birth to D.B.M. in July 2003.1 ACDCS removed D.B.M.
from Mother’s care in January 2012, and D.B.M. was adjudicated a child in need of
services (“CHINS”) the following month. The trial court’s CHINS order detailed the
reasons for D.B.M.’s removal and CHINS status, including:
 Mother’s previous involvement with DCS
 Mother’s personality and intellectual disorders
 Mother’s recent hospitalization for mental-health concerns
 D.B.M.’s frequent hospitalizations, which were based on Mother’s
unsubstantiated claims that someone was poisoning D.B.M.
 The use of Mother’s home, where D.B.M. was living, for drug
trafficking
Pet’rs Ex. 1. Father and Mother were not living together when D.B.M. was adjudicated a
CHINS, and Father and D.B.M. had little to no contact with each other.
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Mother voluntarily relinquished her parental rights, and she does not participate in this appeal.
2
To facilitate reunification, the trial court ordered both parents to do a number of
things, including refrain from criminal activity, maintain appropriate housing, cooperate
and communicate with caseworkers, obtain a family-functioning assessment, and
participate in services recommended by the family-functioning assessment. Father was
also ordered to establish paternity.
Father failed to fully comply with the trial court’s order, and in September 2013
ACDCS filed a petition to terminate his parental rights. The trial court held a hearing on
the petition in March 2014. Father did not attend.
At the hearing, ACDCS supervisor Heather Rouns testified that although Father
maintained contact with ACDCS for a time after the CHINS adjudication, he eventually
stopped communicating with ACDCS altogether. Tr. p. 24. As a result, “from reviewing
the file,” Supervisor Rouns reported that ACDCS “has not had a valid address for him[]
on a multitude of occasions . . . .” Id. at 25. She also testified that Father failed to notify
ACDCS of any housing or employment changes. Id. at 26. At this point, Father’s
counsel objected, saying that Supervisor Rouns lacked “firsthand knowledge as to these
matters and is in effect trying to bootstrap what would be the anticipated testimony of the
family case manager, who is not with us . . . .” Id. Counsel was referring to family case
manager Marquitta Byers (“FCM Byers”), who was on maternity leave.
Counsel for ACDCS established, through additional questioning, that Supervisor
Rouns had personal knowledge of the case. See id. at 27-36. Father’s counsel then
clarified that his objection was actually that Supervisor Rouns’ testimony was hearsay.
Id. at 36. In response, ACDCS’s counsel argued that DCS employees routinely rely on
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hearsay when monitoring parents, such as “service-provider reports, letters, all of that
information, [and] that’s all hearsay. It’s acceptable hearsay because it’s part of their
job.” Id. at 37. The trial court overruled Father’s objection. Id. at 38. Supervisor Rouns
went on to testify that Father had failed to comply with the trial court’s order to
participate in services recommended by the family-functioning assessment and had not
exercised any parenting time with D.B.M. throughout the case. Id. at 39-55. She also
testified that D.B.M. was thriving in his foster-care placement. Id. at 46-48.
Family case manager Brianna Norris (“FCM Norris”), who replaced FCM Byers,
also testified that Father had not complied with the trial court’s order: “he [did] not
complete[] recommended services and [did] not visit[] with D.B.M.” Id. at 55. FCM
Norris likewise told the court that D.B.M. was flourishing in his current foster-care
placement. Id. at 54. Beth Webber, the guardian ad litem (“GAL”) assigned to the case,
summarized Father’s lack of involvement in the case and D.B.M.’s life:
[D.B.M.] hasn’t had contact with [Father]. [F]ather came to a couple of the
first court hearings, but [he] hasn’t been involved for the pendency of this
case. He[] initially had some telephone contact, but has basically fallen off
the face of the earth and we haven’t always known where he has been. He
hasn’t shown interest by visiting. He hasn’t shown interest by maintaining
contact with [ACDCS] or trying to maintain contact with the family that
has [D.B.M.] and he doesn’t even come to regularly scheduled court
hearings.
* * * * *
[Father and D.B.M] didn’t have much of a relationship prior to [ACDCS]
getting involved a couple of years ago. They had been estranged at that
time, so it would take some work to even try to make reunification occur.
And in this instance, [Father] hasn’t tried. He did the family-functioning
assessment and then never followed through with any of the
recommendations [from] that, so we can’t even look at him as a potential
for anything because we don’t even know what his situation is and he
hasn’t even visited with [D.B.M.]. [D.B.M.] is doing remarkably well under
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the circumstances. And with no contact with [Father], it doesn’t leave us
with many options, and so this child needs permanency. Twenty-six months
in the care of [ACDCS] is way too long . . . .
Id. at 61-62. GAL Webber recommended terminating Father’s rights. Id. at 62-63.
The trial court took the matter under advisement, and in April 2014 it entered an
order terminating Father’s parental rights.
Father now appeals.
Discussion and Decision
Father contends that Supervisor Rouns’ testimony was inadmissible hearsay. He
argues that the trial court should not have allowed her testimony, and without it, there is
insufficient evidence to support the trial court’s order terminating his parental rights.
“The admission of evidence is entrusted to the sound discretion of the trial court.”
In re A.J., 877 N.E.2d 805, 813 (Ind. Ct. App. 2007), trans. denied. An abuse of
discretion only occurs where the trial court’s decision is against the logic and effect of the
facts and circumstances before it. Id. “The fact that evidence was erroneously admitted
does not automatically require reversal, and we will reverse only if we conclude the
admission affected a party’s substantial rights.” Id. “In general, the admission of
evidence that is merely cumulative of other evidence amounts to harmless error as such
admission does not affect a party’s substantial rights.” In re Paternity of H.R.M., 864
N.E.2d 442, 450-51 (Ind. Ct. App. 2007).
Over Father’s objection, Supervisor Rouns was permitted to testify about Father’s
lack of progress during the time FCM Byers was assigned to Father’s case. The
implication from her testimony and counsel’s colloquy with the trial court is that
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Supervisor Rouns based her testimony on documents prepared by FCM Byers and others.
On appeal, Father argues that this constituted inadmissible hearsay and “no exception to
the rule excluding hearsay was presented.” Appellant’s Br. p. 7. It is undisputed that
Supervisor Rouns’ testimony was admitted to prove the truth of the matter asserted, and
her testimony therefore constitutes hearsay, see Ind. Evidence Rule 801(c), which
generally is not admissible unless an exception applies, see Ind. Evidence Rule 802.
To the extent Supervisor Rouns’ testimony was based on records in ACDCS’s
possession, it would likely be admissible pursuant to the hearsay exceptions for public or
business records. See Ind. Evidence Rule 803(6), (8). The business-records exception
states that the following is not excluded by the rule against hearsay, regardless of whether
the declarant is available as a witness:
(6) Records of a Regularly Conducted Activity. A record of an act,
event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by—or from information
transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly conducted
activity of a business, organization, occupation, or calling, whether
or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian
or another qualified witness, or by a certification that complies
with Rule 902(9) or (10) or with a statute permitting certification;
and
(E) neither the source of information nor the method or
circumstances of preparation indicate a lack of trustworthiness.
Evid. R. 803(6). “[T]he rule unequivocally requires the proponent of business records to
establish, by the testimony of the custodian or other qualified witness, that the records are
regularly made.” J.L. v. State, 789 N.E.2d 961, 965 (Ind. Ct. App. 2003) (citing Ground
v. State, 702 N.E.2d 728, 731 (Ind. Ct. App. 1998)). Absent proof that the records are
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regularly made, the proponent of the business records has not laid a proper foundation
under Rule 803(6), and the records are inadmissible. Ground, 702 N.E.2d at 731.
The public-records exception exempts the following from the hearsay rule:
(8) Public Records.
(A) A record or statement of a public office if:
(i) it sets out:
(a) the office’s regularly conducted and regularly
recorded activities;
(b) a matter observed while under a legal duty to
[observe and] report; or
(c) factual findings from a legally authorized
investigation; and
(ii) neither the source of information nor other circumstances
indicate a lack of trustworthiness.
(B) Notwithstanding subparagraph (A), the following are not
excepted from the hearsay rule:
(i) investigative reports by police and other law enforcement
personnel, except when offered by an accused in a criminal
case;
(ii) investigative reports prepared by or for a public office,
when offered by it in a case in which it is a party;
(iii) factual findings offered by the government in a criminal
case; and
(iv) factual findings resulting from a special investigation of a
particular complaint, case, or incident, except when offered
by an accused in a criminal case.
Notably, Rule 803(8) does not contain several of the foundational requirements for
business records found in Rule 803(6).
Here, there was no evidentiary foundation laid; thus, we cannot determine whether
either exception applies. Yet we need not decide whether the trial court erred in
admitting Supervisor Rouns’ testimony. Even if it did, her testimony was cumulative of
other evidence, making any error a harmless one. That is, Supervisor Rouns testified that
Father failed to comply with the trial court’s order to participate in services
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recommended by the family-functioning assessment and had not exercised any parenting
time with D.B.M. throughout the case. She also testified that D.B.M. was thriving in his
foster-care placement. ACDCS presented the same evidence—and more—through the
testimony of FCM Norris and GAL Webber. As a result, any error in this context was
harmless.
II. Termination of Parental Rights
“The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children.” In re K.T.K., 989
N.E.2d 1225, 1230 (Ind. 2013) (citations omitted). The parent-child relationship is one of
our culture’s most valued relationships. Id. (citation omitted). “And a parent’s interest in
the upbringing of their child is ‘perhaps the oldest of the fundamental liberty interests
recognized by the courts.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)).
But parental rights are not absolute—“children have an interest in terminating parental
rights that prevent adoption and inhibit establishing secure, stable, long-term, continuous
relationships.” Id. (citations omitted). Thus, a parent’s interests must be subordinated to
a child’s interests when considering a termination petition. Id. (citation omitted). A
parent’s rights may be terminated if the parent is unable or unwilling to meet their
parental responsibilities by failing to provide for the child’s immediate and long-term
needs. Id. (citations omitted).
When reviewing the termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. Id. at 1229 (citation omitted). Instead,
we consider only the evidence and reasonable inferences that support the judgment. Id.
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(citation omitted). “Where a trial court has entered findings of fact and conclusions of
law, we will not set aside the trial court’s findings or judgment unless clearly erroneous.”
Id. (citing Ind. Trial Rule 52(A)). In determining whether the court’s decision to
terminate the parent-child relationship is clearly erroneous, “we review the trial court’s
judgment to determine whether the evidence clearly and convincingly supports the
findings and the findings clearly and convincingly support the judgment.” Id. (citation
omitted).
A petition to terminate parental rights must allege:
(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.
(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.
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(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). “DCS must prove the alleged circumstances by clear and
convincing evidence.” K.T.K., 989 N.E.2d at 1231 (citation omitted). On appeal, Father
challenges the sufficiency of the evidence supporting the trial court’s judgment as to
subsection (B) of the termination statute. See Appellant’s Br. p. 11.
Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive. Therefore,
ACDCS was required to establish, by clear and convincing evidence, only one of the
three requirements of subsection (B). Because we find it to be dispositive, we discuss
only whether there was a reasonable probability that the conditions resulting in D.B.M.’s
removal or the reasons for his placement outside Father’s home would be remedied.
In determining whether the conditions that resulted in a child’s removal or
placement outside the home will not be remedied, we engage in a two-step analysis. In re
E.M., 4 N.E.3d 636, 643 (Ind. 2014) (citation omitted). We first identify the conditions
that led to removal or placement outside the home and then determine whether there is a
reasonable probability that those conditions will not be remedied. Id. (quotation
omitted). The second step requires trial courts to judge a parent’s fitness at the time of
the termination proceeding, taking into consideration evidence of changed conditions,
and balancing any recent improvements against “habitual patterns of conduct to
determine whether there is a substantial probability of future neglect or deprivation.” Id.
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(citations omitted). In so doing, trial courts have discretion to “weigh a parent’s prior
history more heavily than efforts made only shortly before termination,” and courts may
find “that parents’ past behavior is the best predictor of their future behavior.” Id.
Here, the trial court concluded that there was a reasonable probability that the
conditions resulting in D.B.M.’s removal from Father’s care or placement outside his
home would not be remedied. As the court explained:
[Father’s] whereabouts are currently unknown. He completed a Family
Functioning Assessment, but did not comply with the recommendations.
The child has been removed from the home for fifteen months and [Father]
has not had any contact with the child, has not paid child support, or
otherwise provided for the necessities of a suitable home for the raising of
the child.
The court finds that [Father’s] lack of involvement in the child’s life and
failure to provide materially or financially for the child’s well-being which
condition existed at the time of the initiation of the CHINS proceedings in
the underlying CHINS cause continued to exist at the time of the
termination hearing. [Father] has wholly failed to provide the child with the
basic necessities of a suitable home. The reasons for the placement of the
child outside the parents’ home have not been remedied.
Appellant’s App. p. 11.
The evidence presented at the termination hearings supports the trial court’s
findings. FCM Norris and GAL Webber testified that Father did not comply with the
court’s order to participate in services recommended by the family-functioning
assessment and had not exercised any parenting time with D.B.M. throughout the case.
Additionally, GAL Webber testified that Father—who did not attend the termination
hearing—had “basically fallen off the face of the earth and we haven’t always known
where he has been.” Tr. p. 61. GAL Webber and FCM Norris also stated that Father had
no relationship with D.B.M. Id. at 55, 61.
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Based on the foregoing, we conclude that the evidence supports the trial court’s
determination that there was a reasonable probability that the conditions resulting in
D.B.M.’s removal or the reasons for his placement outside Father’s home would not be
remedied.
Affirmed.
FRIEDLANDER, J., and MAY, J., concur.
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