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In re Termination of Parent-Child Relationship of O.G.

Court of Appeals of Indiana

December 21, 2016

In re the Termination of the Parent-Child Relationship of: O.G., II (Minor Child)
v.
The Indiana Department of Child Services, Appellee-Petitioner and K.T. (Mother) & O.G. (Father), Appellants-Respondents,

         Appeal from the Marion Superior Court The Honorable Marilyn A. Moores, Judge The Honorable Larry E. Bradley, Magistrate Trial Court Cause No. 49D09-1505-JT-325

          ATTORNEY FOR APPELLANT - MOTHER Steven J. Halbert Carmel, Indiana ATTORNEY FOR APPELLANT - FATHER Patricia Caress McMath Marion County Public Defender Agency Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of Indiana Robert J. Henke David E. Corey Deputy Attorneys General Indianapolis, Indiana

          Baker, Judge.

         [¶1] O.G. (Father) and K.T. (Mother) appeal the juvenile court's order terminating their parent-child relationship with O.G., II (Child). Father argues that the juvenile court erred by admitting certain evidence and both parents argue that there is insufficient evidence supporting the termination order. We find that the juvenile court erroneously admitted certain hearsay evidence. We also find that the evidence does not support the order terminating the parent-child relationship with either parent and reverse and remand for further proceedings.

         Facts

         [¶2] On May 28, 2011, the Department of Child Services (DCS) removed Child after receiving a report that Child had been left with a family friend who could not contact Mother. At that time, Father indicated to DCS that both parents would test positive for marijuana. On June 1, 2011, DCS filed a petition alleging that Child was a child in need of services (CHINS). On June 21, 2011, the juvenile court adjudicated Child to be a CHINS after Mother admitted to the following:

"[Mother] and [Father] have a history of domestic violence in their relationship, and there was a recent altercation where [Father] punched [Mother] in the face and choked her, causing her to lose consciousness. In addition, [Mother] admitted to and tested positive for recent marijuana use, and [Father] has pending charges for possession of cocaine."

DCS Ex. 12. The juvenile court later entered a dispositional decree ordering the parents to, among other things, refrain from use of illegal drugs or alcohol; complete substance abuse, parenting, and domestic violence assessments and comply with all recommendations stemming from those assessments; submit to random drug screens; and refrain from acts of domestic violence.

         [¶3] Mother and Father have a significant history of domestic violence. Mother's first domestic violence assessment led to a recommendation that she complete a 26-week domestic violence class; she failed to complete the classes. She then completed a second assessment, recanting the statements she made regarding Father in the first assessment. The assessor recommended a 26-week class, and this time, Mother completed the classes. In October 2011, Father was charged with felony battery and domestic battery, but Mother eventually recanted and the charges were dismissed.

         [¶4] In August 2012, Child was returned to Mother's care and custody on a trial basis. DCS removed Child after it learned that Father had been in the home, apparently mistakenly believing that there was a no-contact order in place. The juvenile court, however, ordered Child returned to Mother's care because no such order had been entered. In February 2013, the juvenile court entered an order preventing Father from having contact with Child. Child remained in Mother's care and custody until May 31, 2013. Child was once again removed after Father went to Mother's home, kicked down her door, and attacked her. Mother called the police, as the safety plan in place required her to do, and Father was arrested.

         [¶5] Mother testified that her romantic relationship with Father ended in late 2012. The only evidence in the record tending to dispute that testimony was the testimony of the police officer who responded when Father broke down Mother's door. The officer testified that Mother told him that she and Father had been together for three years. The following discussion occurred on cross-examination:

Attorney: Is it possible that she told you that they had been together for three years and not that they [were] currently together?
Officer: It could be.
Attorney: Is it fair to say that sitting here today, you can't specifically recall that [Mother] told you that she was in a current relationship with [Father]?
Officer: That's correct ma'am.
Attorney: And the call that you responded to was that he had kicked in a door. Right?
Officer: Yes.
Attorney: And so, would you agree with me that that's inconsistent with certainly having access to her home with a key. Right?
Officer: One would say, think that, yes.

Tr. p. 288. On re-direct, the DCS attorney showed the officer his police report to refresh his recollection. He then testified as follows:

Attorney: Ok, and what about the relationship that [Mother] described?
***
Officer: Live in boyfriend of three years.

Id. at 290-91.

         [¶6] In November 2012, DCS had asked the juvenile court to order Mother to complete another domestic violence assessment; the court declined to do so. In June 2013, DCS referred Mother for a new assessment anyway, evidently based on the incident when Father invaded Mother's home. Mother participated in the assessment voluntarily. The professional who completed the evaluation testified that there was no evidence of a current violent relationship at that time. Id. at 19; see also id. at 30 (domestic violence assessor testified that there was no evidence of an ongoing violent relationship following April 2014 assessment). The Family Case Manager for DCS testified that she had no reason to think that Mother and Father were in a relationship prior to or during April 2014. Because Mother had already completed the 26-week program with that provider, the provider declined to accept her for another round. DCS failed to refer her to a different provider. At various times during the CHINS case, DCS referred Mother to domestic violence services. She completed the 26-week program once and did not complete it for any of the other referrals.

         [¶7] In August 2012, Mother participated in a mental health evaluation. The social worker who evaluated her diagnosed Mother with bipolar disorder and recommended that she continue with homebased therapy and participate in a medication evaluation. In June 2013, Mother participated in a psychiatric evaluation. The psychiatrist diagnosed Mother with depression and anxiety, recommending that Mother continue with therapy. Additionally, the psychiatrist prescribed Mother thirty days of a mental health medication and asked that she return in thirty days to be re-checked. Mother did not return in thirty days. In 2014, after all DCS services had ceased, Mother went on her own to a mental health provider, at her own cost, for a medication evaluation. That provider recommended anger management classes, which Mother completed, again at her own cost. That provider also helped Mother to find the right mental health medication.

         [¶8] Mother successfully completed homebased case management, as the case manager concluded that she did not need that service. Id. at 309-10. Mother participated inconsistently with homebased therapy, though some of it was not her fault, as multiple therapists left their employment while she was a client. She worked most successfully with Shimura Akins, between March 2014 and February 2015. Akins reported that Mother participated consistently aside from brief periods of incarceration. Mother made progress on all of her goals, visits with Child always went well, and the home she was living in-the same home she was living in at the time of the termination hearing-was safe and appropriate. Akins also stated that Mother was not in a relationship with Father at that time and had made significant progress by admitting to the history of domestic violence. With respect to Mother's mental health, Akins testified that she had sought out a psychologist on her own, had changed her medication with the help of that provider, and was managing her emotions better as a result. Id. at 306. Akins recommended that Mother's parenting time be increased in the summer of 2014 and DCS refused to do so. Mother became incarcerated in 2015; Akins had to close the referral as a result of the incarceration but otherwise reported that Mother had been participating well with that service.

         [¶9] Mother completed a substance abuse evaluation and no substance abuse treatment was recommended. Mother participated in random drug screens and there was no evidence presented at the hearing that she ever provided a dirty screen.

         [¶10] Mother was incarcerated for relatively brief periods of time during the CHINS case. Specifically, she was incarcerated for approximately two weeks in June 2014, approximately one month in April 2015, and approximately one month in October 2015. Id. at 229-32.

         [¶11] DCS had no concerns about Mother's parenting abilities, which is why Mother was never asked to complete a parenting assessment. The Family Case Manager (FCM) testified as follows:

Attorney: . . . [I]sn't it fair to say that . . . [Mother] and [Child] have had a strong bond that you've been able to observe?
FCM: Yes.
Attorney: She's a loving mother to him?
FCM: Yes.
Attorney: Ok, and in those observations that you've had with [Mother] interacting with [Child], he had a strong relationship with her as well? He was bonded with her.
FCM: Yes he was.

Id. at 234. The FCM also testified that Mother never stopped asking DCS or the juvenile court for reinstatement of her visits and services once they had been suspended. Id. at 234-35. Specifically:

Attorney: . . . [W]ouldn't you agree with me that she's never stopped trying to demonstrate that she can safely parent [Child]?
FCM: She's made a requests [sic]. So, she's attempted.
Attorney: Ok, and she's never stopped trying to get him placed back in her care or work towards that?
FCM: Correct.

Id. Mother had generally been consistent with visiting Child, and there were no indications at trial that any provider supervising those visits had any concerns. Mother's visits were suspended on March 31, 2015, and the last time she visited with Child was March 29, 2015.

         [¶12] In April 2015, all of Mother's service referrals had been closed. She asked for a new referral for all services, and DCS refused. In July and October 2015, Mother asked the court to order all services and visits to be reinstated, and the juvenile court refused.

         [¶13] At the time of the termination hearing, Mother was employed in a stable job and had just received a promotion. She was living with her mother, who had been an approved DCS placement during the CHINS case, and had been living there for approximately sixteen months. The FCM reported that Mother was employed more often than not during the CHINS case.

         [¶14] Father was incarcerated throughout much of the CHINS case. The timeline of his incarcerations is not entirely clear from the evidence presented at trial, but ...


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