Opinion
24A-JT-991
10-09-2024
In the Matter of the Termination of the Parent-Child Relationship of A.B. (Minor Child); v. Indiana Department of Child Services, Appellee-Petitioner S.O. (Mother), Appellant-Respondent
Attorney for Appellant Katherine N. Worman Evansville, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Vanderburgh Superior Court The Honorable Gary J. Schutte, Judge Trial Court Cause No. 82D04-2308-JT-1417
Attorney for Appellant
Katherine N. Worman
Evansville, Indiana
Attorneys for Appellee
Theodore E. Rokita
Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Tavitas, Judge.
Case Summary
[¶1] S.O. ("Mother") appeals the trial court's termination of her parental rights to A.B. ("Child"). Mother argues that: (1) the trial court abused its discretion by admitting certain exhibits during the fact-finding hearings; and (2) the trial court's order terminating Mother's parental rights is clearly erroneous. We conclude that the trial court did not abuse its discretion by admitting Mother's drug testing records. The State concedes that the trial court erred by admitting certain other records, but we conclude that the error was harmless. Finally, we conclude that the trial court's termination of Mother's parental rights is not clearly erroneous. Accordingly, we affirm.
Issues
[¶2] Mother raises several issues, which we revise and restate as:
Mother also argues that the trial court erred by adopting DCS's proposed findings of fact and conclusions thereon verbatim. Mother points out that the trial court's order even includes "Proposed" in the title. Further, the order references a statute for incarcerated parents, although Mother was not incarcerated. "The practice of adopting a party's proposed findings verbatim is not prohibited." Country Contractors, Inc. v. A Westside Storage of Indianapolis, Inc., 4 N.E.3d 677, 694 (Ind.Ct.App. 2014). "Although we by no means encourage the wholesale adoption of a party's proposed findings and conclusions, the critical inquiry is whether such findings, as adopted by the court, are clearly erroneous." Id. This practice, however, "weakens our confidence as an appellate court that the findings are the result of considered judgment by the trial court." Cook v. Whitsell-Sherman, 796 N.E.2d 271, 274 n.1 (Ind. 2003). To be sure, there are some errors in the trial court's order. Given the evidence presented here and the remainder of the trial court's findings and conclusion, however, the errors do not weaken our confidence in the judgment.
I. Whether the trial court abused its discretion by admitting several exhibits.
II. Whether the trial court's termination of Mother's parental rights is clearly erroneous.
Facts
[¶3] The Child was born to Mother and M.B. ("Father") in January 2018. In December 2022, the Department of Child Services ("DCS") received a report that Mother and the Child were homeless. DCS arranged for Mother and the Child to stay at a shelter. Mother, however, left the shelter with the Child, and when they were located, Mother tested positive for methamphetamine. DCS removed the Child from Mother's care and placed the Child in the care of a relative. At that time, the Child was underweight and had multiple cavities. DCS then filed a petition alleging that the Child was a child in need of services ("CHINS"). After a hearing, the trial court found that the Child was a CHINS.
Father's whereabouts are unknown, and he is not a party to this appeal.
[¶4] The trial court entered a dispositional order on February 7, 2023, and ordered Mother to participate in supervised visits with the Child, participate in drug screening, complete a mental health and substance abuse evaluation, and complete a parenting assessment. Although Mother participated in some services, Mother failed to make consistent progress. Mother had a habit of participating in services for a few months and then stopping services for a few months.
[¶5] Several supervised visits between Mother and the Child had to be terminated early due to Mother's "emotional dysregulation" and inability to calm herself. Tr. Vol. II p. 56. Mother's behavior during child family team meetings was also disruptive. Mother yelled, "erratically pace[d] the room," and, on one occasion, threw a phone at a supervisor and chased the supervisor around the room. Id. at 60. As a result, Mother was charged with battery against a public safety official, a Level 6 felony, in January 2024. During one court hearing, Mother "stormed out of the courtroom" and said, "You all are trying to kill me." Id. at 61. Mother came back into the courtroom and was still crying and yelling.
[¶6] Mother received mental health treatment at Tulip Tree, but she failed to follow their recommendations. DCS referred Mother to substance abuse treatment at Southwestern Behavioral Health ("Southwestern"). Mother completed the evaluation, and Southwestern recommended that Mother participate in one-on-one therapy, "parenting and recovery and AA meetings." Id. at 42. Southwestern discharged Mother in July 2023 due to noncompliance. Mother went to Hickory Recovery in August 2023, but Mother "left against medical advice" after a few days. Id. at 46. Mother returned to Southwestern in September 2023 and participated in one-on-one therapy. Southwestern recommended that Mother participate in residential treatment due to substance abuse. Mother, however, refused residential treatment and continued to test positive for methamphetamine and THC. In fact, Mother again tested positive for methamphetamine and THC in February 2024, during the fact-finding hearings.
[¶7] Mother was employed as a certified nursing assistant ("CNA") and had several different employers during the proceedings. At the time of the February 2024 fact-finding hearing, she was "between jobs." Id. at 78. At the time of the March 2024 fact-finding hearing, Mother was employed as a CNA through an agency. Mother was living in a trailer with maternal grandmother, who had previously admitted to using methamphetamine.
[¶8] DCS filed a petition to terminate Mother's parental rights in August 2023. The trial court held hearings on the matter on November 14, 2023, February 22, 2024, and March 7, 2024. During the hearings, DCS sought the admission of several exhibits during the testimony of Family Case Manager Amanda Smith ("FCM Smith"). Mother objected to the admission of: (1) DCS Exhibits 2A, 2B, and 2C, which were certified records regarding Mother from Southwestern; (2) DCS Exhibits 3A, 3B, 3C, and 3D, which were certified records from Cordant Health Solutions ("Cordant") regarding Mother's random drug testing results; (3) DCS Exhibits 4A, 4B, and 4C, which were certified records from Ireland Home Based Services ("Ireland"); and (4) DCS Exhibits 5A and 5B, which were certified records from Southwestern regarding the Child. Mother objected on the grounds that the exhibits contained hearsay and that DCS failed to establish a foundation for the exhibits. The trial court overruled Mother's objections.
[¶9] On April 10, 2024, the trial court issued findings of fact and conclusions thereon terminating Mother's parental rights. Mother now appeals.
Discussion and Decision
[¶10] The Fourteenth Amendment to the United States Constitution protects the traditional rights of parents to establish a home and raise their children. In re K.T.K. v. Ind. Dep't of Child Servs., 989 N.E.2d 1225, 1230 (Ind. 2013). "[A] parent's interest in the upbringing of [his or her] child is 'perhaps the oldest of the fundamental liberty interests recognized by th[e] [c]ourt[s].'" Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054 (2000)). We recognize that parental rights are not absolute and must be subordinated to the child's best interests when determining the proper disposition of a petition to terminate parental rights. Id.; see also In re Ma.H., 134 N.E.3d 41, 45 (Ind. 2019) ("Parents have a fundamental right to raise their children-but this right is not absolute."). "When parents are unwilling to meet their parental responsibilities, their parental rights may be terminated." Ma.H., 134 N.E.3d at 45-46.
[¶11] Pursuant to Indiana Code Section 31-35-2-8(c), the trial court "shall enter findings of fact that support the entry of the conclusions required by subsections (a) and (b)" when granting a petition to terminate parental rights. Here, the trial court did enter findings of fact and conclusions thereon in granting DCS's petition to terminate Mother's parental rights. We affirm a trial court's termination of parental rights decision unless it is clearly erroneous. Ma.H., 134 N.E.3d at 45. A termination of parental rights decision is clearly erroneous when the trial court's findings of fact do not support its legal conclusions, or when the legal conclusions do not support the ultimate decision. Id. We do not reweigh the evidence or judge witness credibility, and we consider only the evidence and reasonable inferences that support the trial court's judgment. Id.
Indiana Code Section 31-35-2-8, governing termination of a parent-child relationship involving a delinquent child or CHINS, provides as follows:
(a) Except as provided in section 4.5(d) of this chapter, if the court finds that the allegations in a petition described in section 4 of this chapter are true, the court shall terminate the parent-child relationship.
(b) If the court does not find that the allegations in the petition are true, the court shall dismiss the petition.
I. Mother's arguments regarding the admission of DCS's exhibits fail.
[¶12] Mother challenges the trial court's admission of DCS Exhibits 2A, 2B, 2C (Mother's certified Southwestern records); Exhibits 3A, 3B, 3C, and 3D (Mother's certified Cordant records); Exhibits 4A, 4B, and 4C (Mother's certified Ireland records); and Exhibits 5A and 5B (the Child's certified Southwestern records). Trial courts have broad discretion whether to admit or exclude evidence. In re K.R., 154 N.E.3d 818, 820 (Ind. 2020). We generally review decisions to admit evidence for an abuse of discretion. Id. An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances. Id. Not all trial court error, however, is reversible. In re Termination of Parent-Child Relationship of E.T., 808 N.E.2d 639, 645 (Ind. 2004) (citing Ind. Trial Rule 61). "The 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." Id. at 645-46.
A. Cordant Records
[¶13] We first address Mother's arguments regarding the admission of Exhibits 3A, 3B, 3C, and 3D, the certified Cordant records, which detailed Mother's drug screening. Relying upon our Supreme Court's opinion in K.R., 154 N.E.3d 818, Mother contends that the records were inadmissible under the business records exception to the hearsay rule.
[¶14] Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted. Ind. Evid. Rule 801(c). Although hearsay evidence is generally inadmissible, see Ind. Evid. Rule 802, Evidence Rule 803(6) provides the following records are not inadmissible as hearsay regardless of whether the declarant is available as a witness:
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(11) or (12) 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.
[¶15] "In essence, the basis for the business records exception is that reliability is assured because the maker of the record relies on the record in the ordinary course of business activities." E.T., 808 N.E.2d at 643. In K.R., our Supreme Court resolved a split of authority regarding the admissibility of drug test reports and concluded that the drug test records in a termination of parental rights case fell under the hearsay exception for records of a regularly conducted activity. 154 N.E.3d at 820. The Court held that "drug test reports are required for a laboratory that provides drug testing services to operate, both to keep necessary certifications and as a practical matter." Id. at 821. The Court also concluded that, based upon the testimony of the laboratory director, the drug test reports were sufficiently reliable. Accordingly, the Court held that the trial court did not err by admitting the drug test records over the parents' objections.
[¶16] Mother, however, argues that the exhibits here were inadmissible because neither the lab director nor any other witness was called to testify about the reliability of the drug screens. We note that Evidence Rule 902(11), which is referenced in Evidence Rule 803(6)(D), provides that the following evidence is "self-authenticating" and requires "no extrinsic evidence of authenticity in order to be admitted":
Certified Domestic Records of a Regularly Conducted Activity. Unless the source of information or the circumstances of preparation indicate a lack of trustworthiness, the original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification under oath of the custodian or another qualified person. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record-and must make the record and certification available for inspection-so that the party has a fair opportunity to challenge them.
"Self-authentication does not guarantee admissibility; rather, it relieves the proponent from providing foundational testimony." Wells Fargo Bank, N.A. v. Hallie, 142 N.E.3d 1033, 1038 (Ind.Ct.App. 2020). "Evidence will be excluded if the source of information contained in the record or the circumstances of its preparation indicate a lack of trustworthiness." Id.
[¶17] The drug testing records here were accompanied by the affidavit of Melissa Wells, a "laboratory certifying official of Cordant Health Solutions," which detailed the laboratory's certifications, analytical methods, chain of custody, and standard operating procedures. Ex. Vol. II pp. 6-7. The only question of reliability or trustworthiness raised by Mother is that she recently started a new job, she "was drug tested as part of the hiring process," and "she presumably passed the screen." Appellant's Br. p. 17. Mother, however, did not testify that she passed employment-related drug screens and did not present any evidence of those screens. Under these circumstances, we conclude that the Cordant records were trustworthy, and the trial court did not abuse its discretion by admitting the exhibits.
B. Southwestern and Ireland Records
[¶18] The State concedes that the trial court abused its discretion by admitting Mother's Southwestern and Ireland records because "Mother is correct that this Court has previously held that records of a parent's participation in services did not qualify under the business records exception." Appellee's Br. p. 16; see E.T., 808 N.E.2d at 645 (holding that reports of home visits and supervised visitations "were inadmissible as hearsay and should not have been introduced over the parents' timely objection"). The State also concedes that Mother's and Child's Southwestern records were not admissible under the medical diagnosis exception to the hearsay rule. Appellee's Br. pp. 19-20 (discussing Ind. Evidence Rule 803(4)).
[¶19] The State, however, argues that any error in the admission of these exhibits was harmless. These exhibits concerned details of Mother's visits with the Child, Mother's records of substance abuse treatment at Southwestern, and the Child's therapy records at Southwestern. According to the State, independent evidence existed of Mother's continued methamphetamine use and continued erratic behaviors and the Child's behaviors. Mother's drug testing records, which were properly admitted, demonstrated Mother's continued use of methamphetamine, even during the time period of the fact-finding hearings. FCM Smith testified regarding Mother's erratic behaviors even shortly before the fact-finding hearings, which included throwing a phone at a DCS employee. Further, FCM Smith and the Child's foster father testified regarding the Child's behaviors. Accordingly, we conclude that any error in the admission of the exhibits is harmless. The judgment is supported by substantial independent evidence, and there is no substantial likelihood that improperly admitted exhibits contributed to the judgment.
Mother briefly argues that her due process rights were violated by the admission of inadmissible hearsay evidence and the reliance on the "sole testimony of the FCM to terminate her rights." Appellant's Br. p. 19. Mother's drug testing results were properly admitted; the admission of the other exhibits at issue is harmless; and Mother's parental rights were not terminated solely based upon FCM Smith's testimony. Accordingly, Mother's argument, to the extent that it is cogent, fails. See Ind. Appellate Rule 46(A)(8)(a).
III. The trial court's termination of Mother's parental rights is not clearly erroneous.
[¶20] Next, Mother challenges the trial court's findings of fact and conclusions thereon. Indiana Code Section 31-35-2-8(a) provides that "if the court finds that the allegations in a petition described in [Indiana Code Section 31-35-2-4] are true, the court shall terminate the parent-child relationship." Indiana Code Section 31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship involving a child in need of services must allege, in part:
This statute was amended effective March 11, 2024. These proceedings occurred prior to the amendment, although the trial court's order was issued shortly after the amendment. The parties, however, do not mention the amendment, and the parties apply the earlier version of the statute.
(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 establish these allegations by clear and convincing evidence. In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).
A. Mother's Challenge to Findings Fails.
[¶21] Mother first argues that several of the trial court's findings are clearly erroneous. Mother argues that Finding B.a., which provides that "the admitted exhibits accurately reflect the reasons for the child's removal from parents . . .," is clearly erroneous. Appellant's App. Vol. II p. 49. According to Mother, this finding refers to DCS Exhibit 1, which only contained the CHINS CCS. The CHINS petition and other CHINS documents were not included in the record. FCM Smith, however, testified as to the reasons that Child was removed from Mother's care. Accordingly, any error in the finding is harmless.
[¶22] Next, Mother challenges Finding B.j., which provides: "Mother's disposition was held, and mother was ordered to engage in services to address her mental health, substance abuse, and homelessness. A Dispositional decree was entered on February 7, 2023." Id. at 51. Mother argues that this finding is clearly erroneous because the dispositional order was not entered into evidence. FCM Smith, however, testified regarding the dispositional order. Accordingly, the finding is not clearly erroneous.
[¶23] Next, Mother challenges Finding C.a., which provides:
While mother has housing at the time of this termination hearing, she is living with her mother, who also tested positive and admitted to using methamphetamine at the time of the removal. Mother testified that she knew her mother admitted to using Methamphetamine, but didn't believe it (that the test was accurate). Mother may have housing, but she does not have appropriate housing for the child.Id. Mother contends that neither the CASA nor FCM Smith has visited her residence and that her mother's methamphetamine use is based on questionable evidence. Mother is merely requesting that we reweigh the evidence, which we cannot do. At the time of the fact-finding hearings, Mother was living with maternal grandmother, who previously admitted to using methamphetamine. The finding is not clearly erroneous.
[¶24] Mother also challenges Finding C.d., which provides:
Mother has made no progress since the beginning of the case and has completed none of her court-ordered services. Mother
testifies that someone should have sat her down and told her in black and white what she needed to do throughout the CHINS case, but mother signed a copy of a Motion for Services in the Child's Best Interest that laid out what services mother needed to engage with and was present in Court when the Dispositional order was entered.Id. at 52. Mother argues that the Motion for Services was not entered as an exhibit, that she completed a parenting assessment, and that she participated in visitations, therapy, and random drug screens. The Motion for Services and its contents were discussed during Mother's testimony. When Mother was asked, "You signed the document, correct?," Mother responded, "I know. I understand that." Tr. Vol. II p. 101. Although Mother completed a parenting assessment, she failed to successfully complete the remainder of her services. Mother's argument is merely a request that we reweigh the evidence, which we cannot do. The finding is not clearly erroneous.
[¶25] Finally, Mother also challenges Finding C.l., which provides: "Further, this Court finds that statute states the court shall enter a dispositional decree that provides a reasonable opportunity for the child's parent who is incarcerated to maintain a relationship with the child if they have maintained a meaningful role in the child's life. Ind. Code Ann § 31-34-19-6(6) (West)." Appellant's App. Vol. II p. 53. Mother is correct that this statute has no relevancy here. This finding, however, is mere surplusage, and any error is harmless.
B. The trial court's finding of a reasonable probability that the conditions that resulted in the Child's removal will not be remedied is not clearly erroneous.
[¶26] Mother challenges the trial court's conclusion that 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."I.C. § 31-35-2-4(b)(2)(B)(i). "In determining whether 'the conditions that resulted in the [Child's] removal . . . will not be remedied,' we 'engage in a two-step analysis.'" In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). "First, we identify the conditions that led to removal; and second, we 'determine whether there is a reasonable probability that those conditions will not be remedied.'" Id. at 643 (quoting K.T.K., 989 N.E.2d at 1231). In analyzing this second step, the trial court judges the parent's fitness "'as of the time of the termination proceeding, taking into consideration evidence of changed conditions.'" Id. (quoting Bester, 839 N.E.2d at 152). "We entrust that delicate balance to the trial court, which has discretion to weigh a parent's prior history more heavily than efforts made only shortly before termination." Id. "Requiring trial courts to give due regard to changed conditions does not preclude them from finding that parents' past behavior is the best predictor of their future behavior." Id.
Mother also argues that there was no reasonable probability that the continuation of the parent-child relationship posed a threat to the well-being of the Child. Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive. Consequently, the DCS was required to demonstrate by clear and convincing evidence of a reasonable probability that either: (1) the conditions that resulted in the Child's removal or the reasons for placement outside the home of the parents will not be remedied, or (2) the continuation of the parent-child relationship poses a threat to the well-being of the Child. See, e.g., Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 148 n.5 (Ind. 2005). The trial court here found a reasonable probability that the conditions that resulted in the Child's removal or reasons for placement outside Mother's home will not be remedied, and there is sufficient evidence to support that conclusion. Accordingly, we do not address whether the continuation of the parent-child relationship poses a threat to the well-being of the Child.
[¶27] Here, the Child was removed from Mother's care due to Mother's homelessness and methamphetamine use. Mother participated in individual therapy, but Mother left Hickory Recovery against medical advice and refused to participate in residential treatment even though it was recommended by Southwestern. Mother continued to test positive for methamphetamine throughout these proceedings, including during the same time period as the fact-finding hearings. Although Mother would test negative for a few months, she would revert to using methamphetamine and would test positive again for several months.
[¶28] Mother's employment during the proceedings was inconsistent, but she was employed as a CNA at the time of the final fact-finding hearing. Mother also had housing, but she was living with her mother, who also previously admitted to using methamphetamine. Finally, Mother's mental health issues persisted during these proceedings. Several visits with the Child ended early due to Mother's emotional dysregulation. Mother had extreme outbursts during court proceedings and meetings with DCS. During a January 2024 meeting, Mother threw a phone at a DCS employee and was charged with battery as a result. Under these circumstances, the trial court's finding that the conditions that resulted in the Child's removal will not be remedied is not clearly erroneous.
C. The trial court's finding that termination of parental rights is in the Child's best interests is not clearly erroneous.
[¶29] Next, Mother argues that the trial court's finding that termination of her parental rights is in the Child's best interests is clearly erroneous. In determining what is in the best interests of a child, the trial court is required to look at the totality of the evidence. Ma.H., 134 N.E.3d at 49. In doing so, the trial court must subordinate the interests of the parents to those of the child involved. Id. Termination of a parent-child relationship is proper where the child's emotional and physical development is threatened. K.T.K., 989 N.E.2d at 1235. A trial court need not wait until a child is irreversibly harmed such that his or her physical, mental, and social development is permanently impaired before terminating the parent-child relationship. Id. Additionally, a child's need for permanency is a "central consideration" in determining the best interests of a child. Id.
[¶30] Mother argues that she was engaged during visits with the Child and that the Child is bonded with her. The Child is placed in relative care, where she has made progress with her speech delays and other issues. Both FCM Smith and the CASA recommended termination of Mother's parental rights due to Mother's instability, lack of progress in services, and continued substance abuse. Despite the services offered, Mother has continued to test positive for methamphetamine, and Mother has ongoing mental health issues. Given this evidence, the trial court's finding that termination of Mother's parental rights was in the Child's best interests is not clearly erroneous.
Conclusion
[¶31] The trial court's termination of Mother's parental rights is not clearly erroneous. Accordingly, we affirm.
[¶32] Affirmed.
May, J., and Kenworthy, J., concur.