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In re Termination of The Parent-Child Relationship of A.F.

Court of Appeals of Indiana

February 14, 2017

In the Matter of the Termination of the Parent-Child Relationship of A.F., D.F. & M.F., Minor Children,
v.
The Indiana Department of Child Services, Appellee-Petitioner. T.F., Father, Appellant-Respondent,

         Appeal 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

          BROWN, JUDGE.

         [¶1] 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.

         Facts and Procedural History

         [¶2] 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.[1] 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.

         [¶3] 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.

         [¶4] 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.

         [¶5] 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.

         [¶6] 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.

         [¶7] 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.

         [¶8] 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.

         [¶9] 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.

         [¶10] 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 incarceration.

         [¶11] 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.

         [¶12] 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.

         [¶13] 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.

         [¶14] 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 time.

Id. at 128.

         [¶15] 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.

         [¶16] 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 therapy.
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.

         [¶17] 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 occur.

         [¶18] 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 excited utterances.
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 letter.

Id.

         [¶19] 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 ...


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