In re the Termination of the Parent-Child Relationship of: O.G., II (Minor Child)
The Indiana Department of Child Services, Appellee-Petitioner and K.T. (Mother) & O.G. (Father), Appellants-Respondents,
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,
ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of
Indiana Robert J. Henke David E. Corey Deputy Attorneys
General Indianapolis, Indiana
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.
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
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.
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.
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.
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
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?
Attorney: And so, would you agree with me that that's
inconsistent with certainly having access to her home with a
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]
Officer: Live in boyfriend of three years.
Id. at 290-91.
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.
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
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.
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
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.
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
Attorney: . . . [I]sn't it fair to say that . . .
[Mother] and [Child] have had a strong bond that you've
been able to observe?
Attorney: She's a loving mother to him?
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
Attorney: Ok, and she's never stopped trying to get him
placed back in her care or work towards that?
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.
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.
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
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 ...