Term. of the Parent-Child Rel. of K.C., a/k/a R.L., and A.L., Minor Children S.L., Father v. Indiana Dept. of Child Services

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any Apr 30 2013, 9:18 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

AMY KAROZOS PATRICK M. RHODES
Greenwood, Indiana Indiana Dept. of Child Services
Indianapolis, Indiana

ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF )
K.C., a/k/a R.L., and A.L., Minor Children, )
)
S.L., Father, )
)
Appellant-Respondent, )
)
vs. ) No. 49A02-1207-JT-585
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marilyn E. Moores, Judge
The Honorable Larry Bradley, Magistrate
Cause Nos. 49D09-1202-JT-7083, 49D09-1202-JT-7084

April 30, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
 S.L. (“Father”) appeals the termination of his parent-child relationship with K.C.1

and A.L. (“Children”). He raises two issues: whether the juvenile court erred in

admitting hearsay statements over Father’s objection, and whether there is sufficient

evidence to support the termination. We affirm.

FACTS AND PROCEDURAL HISTORY

Father, J.C. (“Mother”), 2 Children, and Mother’s child, A.W., lived in Wisconsin.

In March 2010, Mother took Children to Indiana without Father’s knowledge or

permission. Then, in May 2010, she reported Children as Children in Need of Services

(“CHINS”), and they were placed in foster care.

At a January 4, 2012, CHINS pre-trial hearing, Father admitted a history of

domestic violence with Mother that had caused coercive intervention for Children. At a

subsequent dispositional hearing, the juvenile court ordered Father to, among other

things, maintain a stable source of income adequate to support Children, obtain and

maintain suitable housing, participate in counseling and parenting assessment and

successfully complete all recommendations resulting from assessment, and complete a

psychological evaluation. Father thereafter moved to Indiana to complete court-ordered

services and preserve his parental rights. Father participated in supervised visits with

Children.

During a permanency hearing on February 21, 2012, the Department of Child

Services (“DCS”) changed the permanency plan from reunification to termination of

1
K.C. is also known as R.L.; however, both parties refer to the child as K.C.
2
Mother is not a party to this appeal.

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parental rights and adoption because Father was not completing the services successfully.

It requested suspension of Father’s supervised visitation until he showed progress with

completing ongoing services.

In Indianapolis, Father did not complete homebased counseling due to a lack of

regular contact with the counselor. Father’s homebased therapist, Children’s Court

Appointed Special Advocate (“CASA”), and Family Case Manager (“FCM”) claimed

Father had stress and anger issues. Father completed a domestic violence assessment but

did not complete the recommended domestic violence classes. Father labeled Mother the

aggressor and him the victim in all domestic violence between them. Father contended

the domestic violence services were for batterers, and he refused to complete them

because he wanted to avoid that designation.

Just before the termination hearing, Father moved into a house unsuitable for

children, but claimed he could fix it in six months to a year. He relied on disability

benefits to pay his bills and, at the time of termination, faced eviction if rent was not paid

in fifteen days. Father indicated he planned to provide for Children with food stamps.

On June 25, 2012, the juvenile court terminated Father’s parental rights.

DISCUSSION AND DECISION

We review termination of parental rights with great deference. In re K. S., 750

N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge the

credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.

denied. Instead, we consider only the evidence and reasonable inferences most favorable

to the judgment. Id. In deference to the trial court’s unique position to assess the

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evidence, we will set aside a judgment terminating a parent-child relationship only if it is

clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied,

cert. denied 534 U.S. 1161 (2002).

When, as here, a judgment contains specific findings of fact and conclusions

thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family

& Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine first whether the evidence

supports the findings and, second, whether the findings support the judgment. Id.

“Findings are clearly erroneous only when the record contains no facts to support them

either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If

the evidence and inferences support the decision, we affirm. In re L.S., 717 N.E.2d at

208.

1. Hearsay Objection

We review decisions concerning admission of evidence for an abuse of discretion.

Walker v. Cuppett, 808 N.E.2d 85, 92 (Ind. Ct. App. 2004). An abuse of discretion

occurs if the trial court’s decision was clearly erroneous and against the logic and effect

of the facts and circumstances before the court. Id. A trial court also abuses its

discretion if its decision is without reason or is based upon impermissible considerations.

Id. Even if a trial court errs in a ruling on the admissibility of evidence, we will reverse

only if the error is inconsistent with substantial justice. Id.

Hearsay is an out-of-court statement offered in a judicial proceeding to prove the

truth of a matter asserted in the statement. Ind. Evidence Rule 801(c). During the

termination trial on June 25, 2012, a DCS case manager testified Mother said Father

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physically abused her. Father’s hearsay objection was overruled because the court

mistakenly thought Mother’s statement was being offered against Mother, when it was, in

fact, offered against Father. See Ind. Evid. R. 801(d)(2) (“A statement is not hearsay if: .

. . [t]he statement is offered against a party and is (A) the party’s own statement . . . .”).

Nevertheless, any error in admitting that statement is not reversible because “error

may not be predicated upon a ruling which admits or excludes evidence unless a

substantial right of the party is affected.” Evid. R. 103(a). Even if the case manager’s

testimony was inadmissible hearsay, there was independent evidence of domestic abuse

in the form of certified exhibits in the underlying CHINS proceedings and Father’s

admissions of domestic violence. The CHINS Petition included Mother’s allegations of

Father’s abuse, the juvenile court admitted and transcribed such allegations, and Father

admitted several violent acts. Therefore, Father cannot demonstrate that a substantial

right was violated. See In re E.T., 808 N.E.2d 639, 646 (Ind. 2007) (improper admission

of hearsay evidence ruled harmless because other circumstantial evidence was sufficient

for termination of parental rights).

2. Sufficiency of the Evidence

To terminate a parent-child relationship, DCS must allege and prove by clear and

convincing evidence that there is a reasonable probability: “(i) 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 (ii) the continuation of the parent-child relationship poses a threat to

the well-being of the child.” Ind. Code § 31-35-2-4(b)(2).

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 The juvenile court must determine a parent’s fitness to care for the children at the

time of the termination hearing to determine whether there is a reasonable probability the

parent will not remedy the conditions that led to the children’s removal. In re A.B., 924

N.E.2d 666, 670 (Ind. Ct. App. 2010). The juvenile court must evaluate the parent’s

habitual patterns of conduct to determine the possibility of future neglect or deprivation

of the children. Id. These patterns include, but are not limited to, historical failure to

provide support and lack of adequate housing and employment. McBride v. Monroe

County OFC, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003).

We consider a parent’s unresponsiveness, uncooperativeness, and unwillingness to

complete assigned services when determining sufficiency of evidence for termination of

parent-child relationship, although it is not an element of termination proceedings. In re

L.S., 717 N.E.2d 204 at 210 (“pattern of unwillingness to deal with parenting problems

and to cooperate with those providing social services, in conjunction with unchanged

conditions, support a finding that there exists no reasonable probability that the

conditions will change”); In re E.E., 736 N.E.2d 791, 796 (Ind. Ct. App. 2000) (provision

of services not element of termination statute). Therefore, to determine sufficiency we

consider Father’s failure to successfully complete services in conjunction with other

unchanged factors.

DCS must establish a reasonable probability that Father’s behavior will remain

unchanged. In re Kay L., 867 N.E.2d 236 (Ind. Ct. App. 2007). At the termination

hearing, Father requested up to two years to make his current home suitable. In

Wisconsin, Father had “many different residences where [he] had to keep moving.” (Tr.

6
at 84.) In Indianapolis, he stayed with two different relatives before settling in his

residence as of April 2012. Renovations and repairs were needed at the time of

termination. He relied on $875 a month in disability, $475 of which was for rent. The

disability payments did not cover phone, storage, and loan payments. He had no plan for

a room or bedding for Children, was facing eviction if rent was not paid in fifteen days,

and planned to use food stamps to provide food for Children if given custody.

In addition, Father claimed his cousins had robbed him and kept him captive at his

current residence during April 2012. Father claimed they kept him hostage with BB guns

and he did not call police because he feared the captors would kill him. Father did not

contact service providers during the alleged captivity.

We agree that, based on these facts, there is a reasonable probability that Father’s

failure to provide adequate housing will not be remedied. This factor, in conjunction

with Father’s failure to complete services, is clear and convincing evidence of a

reasonable probability that he will not remedy the conditions that resulted in Children

being placed outside his care.3 See In re C.C., 788 N.E.2d 847, 854-55 (Ind. Ct. App.

2003) (father’s lack of adequate housing in conjunction with failure to complete services

established clear and convincing evidence of reasonable probability that conditions

leading to children’s removal would not be remedied), trans. denied.

3
We need not address the question of a threat to the Children’s well-being because only one prong under
Ind. Code § 31-35-2-4(b)(2) must be satisfied to permit termination of parental rights. See Prince v.
Dep’t of Child Servs., 861 N.E.2d 1223, 1229 n.2 (Ind. Ct. App. 2007) (State needs prove only one prong
of test).

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 CONCLUSION

Father cannot demonstrate he was prejudiced by the admission of the hearsay

evidence at issue. There was clear and convincing evidence of a reasonable probability

Father could not remedy the conditions that caused Children to be placed outside his care,

and termination of his parental rights therefore was not error.

Affirmed.

ROBB, C.J., and PYLE, J., concur.

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