In the Matter of the Termination of the Parent-Child Relationship of A.F., D.F. & M.F., Minor Children,
The Indiana Department of Child Services, Appellee-Petitioner. T.F., Father, Appellant-Respondent,
from the Marion Superior Court Trial Court Cause Nos.
49D09-1501-JT-28 49D09-1501-JT-29 49D09-1501-JT-30 The
Honorable Marilyn Moores, Judge
Attorney for Appellant Patricia Caress McMath Marion County
Public Defender Agency Indianapolis, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Robert J. Henke David E. Corey Deputy Attorneys
General Indianapolis, Indiana
T.F. ("Father") appeals the involuntary termination
of his parental rights with respect to his daughters A.F.,
D.F., and M.F. Father raises one issue which we revise and
restate as whether the trial court abused its discretion in
admitting evidence. We affirm.
and Procedural History
Father lived with J.C. ("Mother") between 2003 and
2007. Father and Mother had A.F., born in 2005, D.F., born in
2006, and M.F. born in 2007. In April 2005, Father was charged with
domestic battery, battery, and invasion of privacy. In May
2005, Father was sentenced for domestic battery against
Mother. In February 2006, Father was again charged with
domestic battery and battery against Mother.
In January 2008, the Department of Child Services
("DCS") removed the children from Father's
care. That same month, Father was charged with intimidation,
battery by bodily waste, and furnishing alcohol to a minor.
In February 2008, Father pled guilty to battery by bodily
waste and spent about 6 weeks in jail and ninety days on work
release. During that time, there was a Child in Need of
Services ("CHINS") case open regarding the
children. In approximately January 2009, the children were
returned to Father's care.
In June 2009, Father was charged with resisting law
enforcement and with domestic battery against Mother while
the children were in the back bedroom, and spent about one
month in jail. DCS filed another CHINS petition, and Father,
who was incarcerated, admitted that the children were CHINS.
In January 2010, Father was arrested for robbery with bodily
injury. He pled guilty, was sentenced to two years in the
Department of Correction, and was incarcerated between August
2010 and the end of 2012. The second CHINS case involving the
children concluded in 2011.
Meanwhile, in May 2012, DCS filed a verified petition
alleging that A.F., D.F., and M.F. were CHINS. The petition
alleged in part that Father was incarcerated with an earliest
expected release date of July 2014. On September 4, 2012,
Father admitted that he was incarcerated and was not
available to parent his children, and the court found the
children to be CHINS. On September 25, 2012, the court
entered a dispositional order and a parental participation
order ordering Father to contact DCS within forty-eight hours
of his release from incarceration to engage in services.
In November 2012, Guardian ad Litem Patti Cavanaugh
("GAL Cavanaugh") recommended that phone contact
between Father and the children be suspended based on things
the children had said to her at a visit she made to their
foster home, including M.F. not remembering Father and A.F.
not being comfortable with the phone contact.
On July 15, 2013, Father was released. The next day the court
entered an order authorizing supervised parenting time for
Father upon positive recommendations from the children's
therapist, and ordering Father to participate in homebased
therapy and case management, a parenting assessment, and to
follow any recommendations. Father participated in services.
In May 2014, Father was incarcerated for violating his parole
after he was charged with operating a vehicle while
intoxicated and tested positive for marijuana. On December
30, 2014, the court held a hearing, and GAL Cavanaugh
recommended that the plan be changed to adoption because
Father had not completed services and the children had had
unstable parenting for many years. The court ordered that the
permanency plan for the children be adoption.
On January 15, 2015, DCS filed a verified petition for the
involuntary termination of Father's parental relationship
with the children, and in July 2015, Father was released from
Meanwhile, on March 7 and 15, 2015, the court held an
evidentiary hearing. J.O., a foster mother, testified that
A.F. was placed with her in 2009 and was initially defiant,
would steal and lie, had symptoms of ADHD and RAD, was
harmful to animals, had re-attachment disorder, and exhibited
sexual behavior. She also testified that D.F. was placed with
her in 2010, 2011, and 2012, and that M.F. was placed with
her in May 2012. J.O. stated that A.F. and D.F. were placed
with her daughter at some point because, when DCS recommended
that the children be returned to foster care, she had room
for only one more child and took M.F.
Father testified regarding his incarceration, participation
in services, and letters to the children. When asked why he
chose to engage in criminal activity while he had children,
he answered: "Stupid choice. Being dumb. No real reason
or explanation." Transcript at 47.
During direct examination, Tequaysha Tubbs, a behavioral
clinician who worked with the children from April 2014 until
January 2016, testified that A.F.'s behavior of lying and
stealing was a concern to her. Tubbs later stated: "I
addressed with [A.F.], there were reports from foster home of
lying and stealing." Id. at 81. Father's
counsel objected on the basis of hearsay. The court stated:
"she's saying what she went over with the child, so
I would, I'll allow it." Id. Tubbs
testified that stability would help A.F.'s behavior, that
M.F. had incidences of stealing and lying, and that stability
would help both M.F.'s and D.F.'s behaviors.
Family Case Manager Henry Momo Fahnbulleh ("FCM
Fahnbulleh") indicated that placement and adoption was
in the best interests of the children. When asked why he
thought any attempts to reunify with Father threatened the
children's well-being, FCM Fahnbulleh answered:
Because of the, the, the time lag between the, the services
that [Father] has participated in, and there were, in his, in
the present time, this was just from August of 2015, and this
time, that he has actively participated in services, I
believe, is shorter than the previous opportunities that were
given to him for the children to be re-, reunified with him.
So it would be a disruption of their, of their family at this
Id. at 128.
Gloria Hood, a therapist and the executive director of the
Indiana Center for Children and Families, a subsidiary of
Mental Health America of Indiana, testified that she became
familiar with A.F., D.F., and M.F. when she was working at
the Indianapolis Institute for Families in 2008 after their
first removal from the parents' care, and that she began
working with A.F. again in 2012 following another removal
from her parents' home. She testified that she had been
A.F.'s primary outpatient therapist since 2012.
Hood testified that it would be important to be aware of a
diagnosis for a child because it could influence a treatment
plan. DCS's counsel asked Hood if A.F. came to her with
any diagnosis, Father's counsel objected on the basis of
hearsay, and the court overruled the objection. The following
exchange then occurred:
A I, I was aware that [A.F.] was evaluated by Dalton and
Associates, and was given an, a diagnosis of reactive
attachment disorder, this was in the, she didn't come
with that, with that diagnosis, but in the course of
treatment that was provided, as well as the attention deficit
disorder. I think previous to that, she, it was mentioned in
the Dalton and Associates report that there was . . .
[Father's Counsel]: And, Judge, any testimony on the
Dalton and Associates report I'm gonna object to it.
It's hearsay. We don't have that report into the
exhibits from DCS, so I'm gonna object as to, testifying
as to that specific report from Dalton and Associates.
[GAL's Counsel]: Judge, she's the therapist, though,
and this is information she's relying on and providing
THE COURT: Yeah, I'll allow it in.
A Previous to the Dalton Associate report, Dalton Associates
reported that there was a conduct disorder and, I, I just
recall that they'd been talking about a conduct disorder
. . .
[Father's Counsel]: Judge, I, I'm sorry to interrupt
the witness again. Now she's reporting to what Dalton and
Associates is reporting. If it's her understanding of
what the, the diagnosis is, and that was her work with the
child as the therapist, but now she's testifying as to
what someone else reported as the diagnosis for the child.
THE COURT: And she's relying on that for treatment under
. . . 803(4), so, I'm allowing it under that.
MS. HOOD: May I continue?
[DCS's Counsel]: Yes.
A The purpose of my mentioning the conduct disorder was that
the Dalton Associates' conclusion was that there was not
a conduct disorder occurring, but that instead, it was
reactive attachment disorder having to do with her
instability in attachments and multiple transitions.
Id. at 161-162.
Hood testified that A.F. needed to be able to reside in a
stable home and in a home where she does not anticipate
frequent change in caregivers. Hood testified that she
observed A.F. experience emotional upset, including being
sad, confused, and angry, before and after visitation. She
recommended that visitation between Father and A.F. not
Hood testified regarding a letter from Father to A.F. in
which Father told A.F. that he was no longer in prison,
commented that he was sorry that he was taken away from them,
expressed his love to the children, and that he wanted to see
them. When asked why this letter was gone over during
therapy, Hood testified without objection that this was a
decision made during a Child and Family team meeting, that
Father would be allowed to write letters to communicate to
his daughters, and that these letters would be read only in
therapy and processed in therapy. Hood testified that it was
important for her treatment "[b]ecause of the emotional
issues that she had had surrounding her father and contact
with her father, it was important that, that she had
assistance in dealing with any emotions when she discovered
that he was no longer in, in jail or in prison."
Id. at 171. The following exchange then occurred:
Q How did she react from the letter from her father?
A What I observed was a range of emotions, from crying to
Q What do you mean by "excited utterances"?
A She was . . . expressing . . . she was expressing her
thoughts and her feelings with a change in tone, with
emotional . . . there was a lot of emotional energy that she
was expressing when she was reading this letter, and that she
went back and forth between that presentation and between
tearful, crying, actual, actually sobbing, when she read this
Hood testified that she did not think it was important to try
to rectify A.F.'s relationship with Father because there
were other primary needs such as stability, permanency, and
security of environment. She also expressed concerns if A.F.
were to be reunified with Father such as ...