FILED
Feb 14 2017, 9:08 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Patricia Caress McMath Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Robert J. Henke
David E. Corey
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination February 14, 2017
of the Parent-Child Relationship Court of Appeals Case No.
of A.F., D.F. & M.F., Minor 49A04-1605-JT-1030
Children, Appeal from the Marion Superior
Court
The Honorable Marilyn Moores,
T.F., Father, Judge
Appellant-Respondent, Trial Court Cause Nos.
49D09-1501-JT-28
v. 49D09-1501-JT-29
49D09-1501-JT-30
The Indiana Department of
Child Services,
Appellee-Petitioner.
Brown, Judge.
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 1 of 33
[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,
1
Mother signed adoption consents for the children.
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 2 of 33
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
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 3 of 33
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.
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 4 of 33
[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.
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 5 of 33
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.
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 6 of 33
[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
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 7 of 33
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
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 8 of 33
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 the risks to her
emotional stability and ability to form trusting relationships.
[20] Hood testified that D.F. exhibited behaviors that concerned her regarding
visitation or parenting time with Father, including that D.F. had an emotional
reaction to Father returning to prison. She recommended that Father not have
parenting time with D.F. based on D.F.’s need for emotional stability and that
“her emotional stability was . . . rather tenuous, and at risk if parenting time
with her father would have been initiated . . . re-initiated.” Id. at 180. She also
testified that if D.F. was returned to Father’s care she would be concerned for
D.F.’s long-term ability to form secure attachments and to be able to have
emotional calm and predictability in her life.
[21] Hood also testified that she was concerned with M.F.’s acting out and verbal
displays of upset surrounding visitations with Father, and again recommended
against parenting time for Father with M.F. She also testified that if M.F. were
allowed to reunify with Father she would be concerned that it would be
destructive to her emotional well-being and her future attachment potential.
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 9 of 33
[22] When asked why she supported adoption, Hood answered:
I support that plan based on the, if my numbers are right this
time, seven, approximately seven, years that they have been, had
multiple transitions and I think it’s time that they live in one
home, stay in that home, reside in that home, not have fear that
they will be removed from that home, and . . . I believe that this
will be the best predictor of their future potential for positive
emotional health, positive self-image and positive emotional,
behavioral adjustment. Their ability to form future secure
attachments will be based on whether they can have some
security and, and the attachments that they currently have, and
up to this point, they have not had that security and they’re
halfway through, they’re almost halfway through their, their
cycle of youth, and it’s, it’s time that they have, have that
security.
Id. at 189-190.
[23] On cross-examination by GAL’s counsel, Hood testified that A.F. was three or
four when she first came to her, and that she would have explained “to any
child at that . . . age, and that was that therapy was some place where she could
come and we would help her with her feelings and we would help her with
things that she was having trouble with.” Id. at 190. She testified that over the
course of therapy, A.F. understood that “this was someplace she was safe.” Id.
at 191. She also stated that she later had a more age-appropriate conversation
with A.F. GAL’s counsel stated that she had laid the appropriate foundation
for Hood to say exactly how A.F. responded and what she said, Father’s
counsel objected and argued that A.F.’s statements would be hearsay, and
GAL’s counsel argued that she was moving to admit the statements under Rule
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 10 of 33
803(4) as statements made for purposes of medical diagnosis or treatment. The
court clarified that the testimony related to the recent letter and not when A.F.
was three years old and found that GAL’s counsel had laid the foundation to
allow the questioning. The following exchange then occurred between GAL’s
counsel and Hood:
Q So could you state, exactly, how [A.F.] reacted upon receipt
of those letters and what she said?
A When [A.F.] read the letter, she did not know at that time that
her father was no longer in jail or prison. She did not know that
it was close to time for him to get out, so she was surprised and
shocked initially. [A.F.], I think, I described a range of
behaviors, and . . . initially, [A.F.] was very angry and she was
angry because he was out of jail and she described that that
meant that she had to worry about that he might go back to jail.
She was angry remembering that he had promised not to go back
to jail and had, indeed, broken that promise. So this was a
trigger to her memory of promises that, she had described earlier,
that her father had made to her. She . . . was very sad and this
was part of her range of emotion because [A.F.] . . . does have a
loyalty to her father and . . . part of her, I mean she really went
from crying in anger to crying in sadness at being apart from her
father, and in remembering . . . it was also a trigger to
remembering the events that had caused them to be apart,
including her observing domestic violence and the . . .
[GAL’s Counsel]: I’m gonna cut you off right there because I
think we’ll probably . . . draw an objection.
A Okay. Okay.
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 11 of 33
Q At any point, did she exhibit her emotions over receipt of the
letter in any other way? Through play therapy or art therapy, like
you described she had participated in?
A [A.F.] did write a letter to her father. Wrote, wrote a response
to, to her father.
Id. at 195-196.
[24] Later, GAL’s counsel asked Hood if she had noticed any sexualized behaviors
during her work with A.F., Hood answered that she had not directly observed
sexualized behaviors but they had been reported to her by several persons, and
Father’s counsel objected on the basis of hearsay. GAL’s counsel argued that it
was not hearsay because Hood was a therapist and she was taking in
information and using it in her treatment of the child, and the court allowed the
testimony.
[25] Hood testified that she felt it would be beneficial for the children to know where
they were going very soon because she had seen their emotional turmoil and
related behavioral acting out. She testified that she expressed to Father that the
children were fearful of him becoming incarcerated and they were dejected,
angry, and sad because he went back to jail.
[26] Debbie Hale, a senior therapeutic support specialist, testified that she
recommended parenting time for Father at one point, but subsequently
recommended against it because of Father’s inability to stay out of jail. During
cross-examination, GAL’s counsel asked why Hale would never recommend
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 12 of 33
that A.F. share a bedroom with one of her sisters, Hale answered “[b]ecause of
her sexualized behaviors, because she has touched her sisters inappropriately,”
and Father’s counsel objected and stated: “Calls for . . . this witness never
clarified that she had personal knowledge of that information for [A.F.]. Calls
for hearsay.” Id. at 256. GAL’s counsel responded that she was just asking for
the basis of her recommendation, and the court overruled the objection.
[27] GAL Cavanaugh testified that her primary responsibility was to be the voice of
the children. She testified that she did not recommend that the children be
returned to Father or that he have overnights with them because she did not
think Father ever fully completed services.
[28] During direct examination, GAL’s counsel asked GAL Cavanaugh what M.F.
told her, Father’s counsel objected on the basis of hearsay, and the court stated:
“I think she can summarize testimony, but, or the, what she said, but not
verbatim.” Id. at 332. The court then said: “Worst case, I’ll let (inaudible).
Being the Guardian ad Litem, that she’s the voice of the child.” Id. GAL’s
counsel asked GAL Cavanaugh to just summarize their wishes. GAL
Cavanaugh testified that if it were possible for her to return to Mother, M.F.
would like to do that, that if she could not be returned to her Mother, Father
makes great pancakes and she would not mind living with him, that if those two
things were not possible, then she feels loved by her foster parents and wants to
be adopted. She testified that D.F. would like Mother and Father to reunite,
and if that cannot happen, then she would like to live with Father, her uncle,
and grandfather, and if that could not happen, then she would be happy being
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 13 of 33
adopted by her foster parents because she believes they love her, and that A.F.
wants only to be adopted. She testified that the children had not had consistent
parenting by Father over time and Father was not in a position to provide
stability for his children and “I don’t know, simply based on what I know, how
much longer he would need in terms of more time to, at least, you know, make
me as the Guardian ad Litem feel that he could do that.” Id. at 335.
[29] GAL Cavanaugh testified that the children had been out of the care of their
parents for so long, that it has affected them, and that she received training on
trauma to children and trauma related to removal from parents. When asked
whether she believed there was trauma in being removed and placed back with
parents, Father’s counsel objected on the basis of lack of foundation and stated:
“We don’t know what the training was that she has received related to trauma
based on removal from the parents. I don’t believe that we know what kind of
expertise she could place on that question.” Id. at 339. The court overruled the
objection. GAL Cavanaugh answered that it “[k]eeps the children emotionally
up and down, not knowing what’s gonna happen next . . . .” Id. She also
testified that it was in the children’s best interests to be adopted and that she did
not believe Father should be given more time to complete services. She stated
that things would “go really well,” parents would drop out of the picture,
sometimes parents “would get incarcerated,” the children would develop a
routine and then it would have to stop through nothing that they had done on
their own. Id. at 343. The children “would get sad” and mad, would want
explanations from her as to why parents were allowed to just stop visiting or go
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 14 of 33
to jail. Id. at 344. When asked why she did not think giving Father more time
would be in the best interests of the children, GAL Cavanaugh stated in part:
That’s part of the issue for me, is that they have been parented to
consistently, in foster care or by the families that they’re with
right now, having them have to wait even more time to develop
new relationships with, at least with, one person they don’t know
and a father who they haven’t lived with for four or five years, I
don’t know what we’re talking about in terms of when the
children would be emotionally ready or safe to do that kind of
thing, and the case has already gone on so long that, given part of
my role to recommend a safe, secure, loving permanent
placement as soon as possible, I, I don’t feel like I could
recommend more time.
Id. at 346.
On April 11, 2016, the court entered an order terminating Father’s parental
rights. It concluded that continuation of the parent-child relationship posed a
threat to the children’s well-being, that there was a reasonable probability that
the conditions that resulted in the removal and continued placement of the
children outside the home would not be remedied, that there exists a reasonably
probability that Father will not remain available in the future given his criminal
history pattern of participating in services only to be incarcerated, that
termination is in the best interests of the children, and that adoption is a
satisfactory plan for the care and treatment of the children.
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 15 of 33
Discussion
[30] The issue is whether the court abused its discretion in admitting certain
evidence. The admission of evidence is entrusted to the sound discretion of the
juvenile court. In re A.J., 877 N.E.2d 805, 813 (Ind. Ct. App. 2007), trans.
denied. We will find an abuse of discretion only where the juvenile court’s
decision is against the logic and effect of the facts and circumstances before the
court. Id. If a juvenile court abuses its discretion by admitting the challenged
evidence, we will reverse for that error only if the error is inconsistent with
substantial justice or if a substantial right of the party is affected. In re S.W., 920
N.E.2d 783, 788 (Ind. Ct. App. 2010).
[31] Father asserts that the trial court improperly admitted: (A) hearsay evidence;
and (B) unqualified expert testimony.
A. Hearsay
[32] Father contends that the trial court improperly admitted three types of hearsay:
(1) testimony regarding the course of treatment of the children; (2) testimony as
the basis for Hale’s recommendation; and (3) testimony admitted through GAL
Cavanaugh as the voice of the children.
[33] Generally, “[a] hearsay statement is one ‘other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.’” VanPatten v. State, 986 N.E.2d 255, 260 (Ind. 2013)
(citing Ind. Evidence Rule 801(c)). Hearsay statements are not admissible,
except pursuant to certain exceptions within the Rules of Evidence. Id. (citing
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 16 of 33
Ind. Evidence Rule 802). “[E]rrors in the admission of evidence are to be
disregarded as harmless error unless they affect the substantial rights of a
party.” Id. at 267 (quoting McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996);
citing Ind. Trial Rule 61). “Admission of hearsay evidence is not grounds for
reversal where it is merely cumulative of other evidence admitted.” Id. (quoting
McClain, 675 N.E.2d at 331-332).
1. Course of Treatment
[34] Father asserts that the court abused its discretion by admitting the testimony of
the children’s behavioral clinician, Tubbs, that she received reports from the
foster home that A.F. was lying and stealing, and by admitting Hood’s
testimony that “she received a report from Dalton & Associates with
information that A.F. had a reported conduct disorder but Dalton & Associates
concluded A.F. had reactive attachment disorder,” and that it had been
reported to her that A.F. exhibited sexualized behaviors. Appellant’s Brief at
10. Father also argues that the use of information for treatment purposes alone
is not a recognized hearsay exception and that the statement must come from
the person seeking diagnosis or treatment to qualify as an exception under Ind.
Evidence Rule 803(4).
[35] As pointed out by DCS, A.F.’s foster mother, J.O., testified without objection
that A.F. would steal and lie and that A.F. had “symptoms of, like, ADHD and
RAD. She definitely had the re-attachment disorder.” Transcript at 7.
Further, she testified without objection that A.F. had sexualized behavior with
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 17 of 33
D.F. and that “[t]hey always wanna play ‘house’ or ‘boyfriend, girlfriend,’ or
‘mom and dad,’ and they would, like, hug each other and kiss each other, but
not in a sisterly manner.” Id. She also testified that when she would give the
children baths she put them in the tub together because they were sisters and
stated: “I’m washing one up and I look back and the other two have their toys
making out. It, or . . . if I’m doing [A.F.], [D.F.] would be taking the toy,
inserting it” and that she ended up separating bath time. Id. at 16-17. On cross-
examination, she testified that she had to do safety planning around the
sexualized behavior of the children, that they could not have bath time together,
they could not sleep together, and they could not play with dolls that did not
have clothes. Without a contemporaneous objection, Tubbs testified that A.F.
“seemed to be over sexualized and more mature for her age.” Id. at 77.
Without objection, Hood testified: “I also have concerns because there’s been
sexual reactivity between these children, sexual acting out, and it would not be
appropriate for them to, the three of them to be in a bedroom together for safety
concerns.” Id. at 188. Hale testified that she observed A.F. dancing
suggestively and making sexualized comments, and that the children were
“stripping dolls, prying their legs apart and looking in between them, um . . .
looking at each other when they were undressed, and showing other signs of
sexual behavior.” Id. at 259. Thus, testimony which was cumulative of that
evidence about which Father complains was admitted without
contemporaneous objection. Accordingly, we cannot say the admission of the
challenged testimony warrants reversal. See Anderson v. Scott, 630 N.E.2d 226,
232 (Ind. Ct. App. 1994) (observing that “[t]estimony which was cumulative of
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 18 of 33
that evidence about which the [appellants] complain was admitted without
objection” and finding no basis for a reversal arising from the testimony), trans.
denied; Homehealth, Inc. v. Northern Ind. Public Serv. Co., 600 N.E.2d 970, 974
(Ind. Ct. App. 1992) (“Even if we could say that the admission of the exhibit
was erroneous, and we decline to say so in this instance, the evidence contained
therein was merely cumulative and therefore harmless.”), reh’g denied.
[36] Father also asserts that Hood was improperly permitted to testify what A.F.
said to her in response to Father’s letter. Father concedes that the therapist told
A.F. when she first started working with her in 2008 that therapy was a place
where A.F. would come for help with her feelings, that A.F. came to
understand that therapy was a safe place, and that when Hood started working
with A.F. again in 2012, they again discussed that therapy was a place A.F.
could express how she was feeling and that Hood was there to help her, but
Father contends that A.F. did not understand the importance of being truthful
with Hood for treatment purposes.
[37] DCS asserts that Father’s argument is misplaced because, although Hood was
asked to testify about what the child had said, she testified only about what she
observed. DCS points out that when the therapist started to testify about what
A.F. may have said, GAL’s counsel asked the therapist to stop over concerns
that the testimony may be moving towards hearsay.
We note that Hood testified without objection that A.F. reacted to Father’s
letter with a range of emotions and was tearful, crying, and sobbing. To the
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 19 of 33
extent Hood’s testimony to which Father’s counsel objected included testimony
regarding what A.F. had said, we will address the merits of Father’s argument.
[38] Ind. Evidence Rule 803(4) provides:
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness: (4)
Statement Made for Medical Diagnosis or Treatment. A
statement that: (A) is made for--and is reasonably pertinent to--
medical diagnosis or treatment; and (B) describes medical
history; past or present symptoms or sensations; their inception;
or their general cause.
[39] This exception is grounded in a “belief that the declarant’s self-interest in
obtaining proper medical treatment makes such a statement reliable enough for
admission at trial—more simply put, Rule 803(4) reflects the idea that people
are unlikely to lie to their doctors because doing so might jeopardize their
opportunity to be made well.” VanPatten, 986 N.E.2d at 260 (citing White v.
Illinois, 502 U.S. 346, 356, 112 S. Ct. 736 (1992) (“a statement made in the
course of procuring medical services, where the declarant knows that a false
statement may cause misdiagnosis or mistreatment, carries special guarantees of
credibility”)). Statements made to non-physicians may fall within Rule 803(4)
if the statement is made to promote diagnosis or treatment. McClain, 675
N.E.2d at 331. In cases where there is a proper showing of reliability, a
statement to a family therapist may be admissible pursuant to the medical
diagnosis or treatment hearsay exception. Id.
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 20 of 33
[40] This belief of reliability, though, necessitates a two-step analysis for admission
under Rule 803(4). Id. “First, ‘is the declarant motivated to provide truthful
information in order to promote diagnosis and treatment,’ and second, ‘is the
content of the statement such that an expert in the field would reasonably rely
on it in rendering diagnosis or treatment.’” Id. (quoting McClain, 675 N.E.2d at
331).
[41] With respect to the first prong, the declarant’s motive to promote treatment or
diagnosis, “[t]he declarant must subjectively believe that he was making the
statement for the purpose of receiving medical diagnosis or treatment.” Id.
(quoting McClain, 675 N.E.2d at 331). “With most declarants, this is generally
a simple matter: ‘[o]ften, for example where a patient consults with a physician,
the declarant’s desire to seek and receive treatment may be inferred from the
circumstances.’” Id. at 260-261 (quoting McClain, 675 N.E.2d at 331).
[42] In cases where the declarant is a child, the Indiana Supreme Court has
acknowledged that such an inference may be less than obvious. Id. at 261
(citing McClain, 675 N.E.2d at 331). In VanPatten, the Court addressed
statements made by the alleged victim, a six-year-old child, and held that
“[s]uch young children may not understand the nature of the examination, the
function of the examiner, and may not necessarily make the necessary link
between truthful responses and accurate medical treatment.” Id. “In that
circumstance, ‘there must be evidence that the declarant understood the
professional’s role in order to trigger the motivation to provide truthful
information.’” Id. (quoting McClain, 675 N.E.2d at 331 (citing U.S. v. Barrett, 8
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 21 of 33
F.3d 1296, 1300 (8th Cir. 1993))). This evidence does not necessarily require
testimony from the child-declarant; it may be received in the form of
foundational testimony from the medical professional detailing the interaction
between him or her and the declarant, how he or she explained his role to the
declarant, and an affirmation that the declarant understood that role. Id. (citing
Barrett, 8 F.3d at 1300). But whatever its source, this foundation must be
present and sufficient. Id. Appellate review of this issue is necessarily case-
specific and turns on the facts and circumstances of each case as they are
reflected in its record. Id. In VanPatten, the Court reviewed a spectrum of
cases.
[43] In McClain, for example, where a family therapist provided hearsay testimony
under Rule 803(4) that a patient told her he had been molested, the Indiana
Supreme Court held that the “requisite indicia of reliability” was missing.
McClain, 675 N.E.2d at 331. “There [was] no evidence that the victim sought
the therapist’s help or that he believed he was receiving any treatment.” Id.
The declarant testified only that he knew his family therapist “was his
‘counselor’ and that he talked to her about what McClain did to him.” Id.
“Thus, the record [was] devoid of any evidence showing that the victim
understood he was speaking to a trained professional for the purposes of
obtaining diagnosis of, or providing treatment for, emotional or psychological
injuries.” Id.
[44] In Cooper v. State, a registered nurse provided hearsay testimony in the form of
statements made to her by a child victim of sexual molestation during the
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 22 of 33
course of a physical examination. 714 N.E.2d 689, 690 (Ind. Ct. App. 1999),
trans. denied. We affirmed the admission of the testimony. Id. at 691. In
assessing whether the first prong of the McClain test was satisfied, we reviewed
the foundational testimony provided by the nurse with respect to the interaction
she has with children prior to those sorts of examinations and the specific
interaction she had with the child victim in that case. Id. at 692-694. A few
critical items of that testimony stood out to the court.
[45] With respect to the nurse’s standard procedure, she testified that “we introduce
ourselves to the child . . . and have the child get to know us,” and “After you do
the initial trying to get to know the child . . . generally I’ll just take my time . . .
just let them know who I am and who the doctor is . . . and then I’ll start
addressing the child, ask them if they know why they’re in the emergency
room.” Id. The State specifically asked the nurse: “When you’re dealing with
the child, you tell them who you are and what your job is?” Id. The nurse
responded that “I usually tell them my name is Kim and I’ll be their nurse and
I’ll be with them the whole time . . . [l]et them know what they are going to
expect, what the doctor is going to do, and that it’s okay for the doctor and
nurse to take a look at them.” Id.
[46] With respect to the victim in Cooper, the nurse testified that she followed that
same procedure, and that she let the victim know that “[h]er mom brought her
in because of something, and if she’s going to tell me what that something is
when she feels comfortable to talk to me about it.” Id. at 693. She said “I asked
her if she knew why she was there in the emergency room, and I believe she
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 23 of 33
thought she was going to get an exam. She needed to get examined, but she
didn’t know why.” Id. at 694. Only after that introduction was made did the
victim make substantive statements to the nurse as to the nature of the
molestation and the perpetrator. Id.
[47] Taken together, the court in Cooper held that the testimony provided a proper
foundation for the admission of the nurse’s testimony under Rule 803(4). The
victim “knew that she was in the emergency room for an examination by a
physician because of the molestation by Cooper. [She] sufficiently understood
the professional role of both the nurse and the doctor who examined her, thus
triggering the motivation to provide truthful information.” Id. at 694.
[48] Later, in In re W.B., two parents appealed the termination of their parental
rights with respect to their two young children. 772 N.E.2d 522, 524 (Ind. Ct.
App. 2002). A factor in the termination decision was a finding by the trial court
that the children were subjected to sexual and physical abuse by the parents—a
finding based entirely on hearsay testimony provided by a therapist who relayed
statements made to her by the children. Id. at 532. The court found that the
testimony failed the first prong of the McClain test because the record was
“devoid of any evidence . . . that the children, in making these statements, were
‘motivated to provide truthful information in order to promote diagnosis and
treatment.’” Id. at 533 (quoting McClain, 675 N.E.2d at 331). The court
highlighted that it “clearly portrayed the young children as mentally and
emotionally incompetent, and no doubt totally unaware of [the therapist’s]
professional purpose.” Id.
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 24 of 33
[49] Finally, in In re Paternity of H.R.M., a father appealed a modification of his
visitation rights that was based largely on hearsay testimony of sexual abuse
given by a clinical social worker. 864 N.E.2d 442, 444-445 (Ind. Ct. App.
2007). The court reviewed the analysis in McClain, W.B., and Cooper, and found
that “the record contain[ed] no indication that H.R.M. had the requisite
motivation to tell the truth, as no evidence indicates that she knew [the social
worker’s] role or that she was being interviewed for the purpose of medical
diagnosis.” Id. at 447.
[50] After reviewing those cases, the court in VanPatten examined the record and
held: “the question before us is whether the record reflects that the child
adequately understood the role of the medical professional and the purpose of
the visit in order for us to infer that the child was motivated to speak
truthfully.” VanPatten, 986 N.E.2d at 265. It observed that the only statements
relevant to the first prong of the McClain test were the nurse’s statement that she
tells children “[i]t’s my job to make sure that you’re okay,” and her affirmative
response to the question “[s]o you ask general health issues and you also talk to
them about why you’re there to see them and provide treatment to them?” Id.
at 266. It also observed that the nurse had no actual recollection of her
conversations with the children and it could not tell how the children responded
or whether they understood what was going on. Id. at 266-267. The court
observed that the nurse expressly said that “she would not have explained to the
girls how important it is that they tell her the truth.” Id. at 267.
[51] The court stated:
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 25 of 33
We do not intend for this evidentiary foundation to present an
insurmountable hurdle, nor do we seek to dictate trial testimony.
But here, for example, a few simple questions asked of E.R. and
S.D. would have helped: “Have you been to a doctor’s office
before?” “Have you been seen by a nurse before?” “Do you
know what nurses do?” “What do they do?” “Do you know the
difference between the truth and a lie?” “Do you tell nurses and
doctors the truth?” “Do you know why you tell the nurses and
doctors the truth?” “Did you know why you were seeing Nurse
Moss?” Firm responses to questions like these would go a long
way in supporting the inference that E.R. and S.D. were
motivated to tell Moss the truth when she examined them.
Likewise, a few more directed questions for Moss would have
been helpful (although given her lack of precise knowledge about
her interactions with E.R. and S.D., we concede that these would
have been difficult in this particular case): “Did you explain the
purpose of the examination to the girls?” “How so?” “Did you
ask if they understood the purpose of the examination?” “Did
you ask if they had been seen by a nurse before?” “Did you
explain how important it was that they tell you the truth?” “How
did they respond?” These sorts of questions—and solid
responses—reflected in the record would certainly help a
reviewing court confirm that the hearsay testimony sought to be
admitted was sufficiently reliable.
Along those same lines, a few simple questions asked of E.R. and
S.D.—or their parents—could have clarified the purpose of the
visit in the first place. “Why were you seeing Nurse Moss?”
“Did the police ask you to take your daughter to the Sexual
Assault Treatment Center?” “Why did you take your daughter
there?” “Why not take her to a hospital before taking her to
DCS?” This sort of evidentiary foundation would certainly
ameliorate our concern that the visit was intended to obtain
evidence as part of a law enforcement investigation.
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 26 of 33
Id. at 266.
[52] Here, on cross-examination by GAL’s counsel, Hood testified that A.F. was
three or four when she first came to her, and that she would have explained “to
any child at that . . . age, and that was that therapy was some place where she
could come and we would help her with her feelings and we would help her
with things that she was having trouble with.” Transcript at 190. The
following exchange occurred:
Q Okay. Was that type of conversation what you would think
would be developmentally appropriate for a child at that age?
A Yes.
Q Okay. Did she exhibit to you that she understood that it was
a safe place where she was coming where you could help her?
A At that time, [A.F.], I think over the course of time [A.F.] did,
I don’t, I don’t believe on the intake that [A.F.] understood what
that meant.
Q Okay. How-
A But, over the course of therapy, I, I believe that she
understand that this was someplace she was safe.
Id. at 190-191.
[53] GAL’s counsel then asked Hood about the more recent treatment of A.F.:
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 27 of 33
Q Okay, and then when you most recently started working with
[A.F.] again, was there any additional talk about your role as her
therapist? Between you and [A.F.].
A Yes, a similar description . . . with a little bit more age-
appropriate with, with again, age-appropriate conversation about
that therapy is a place where you can express how you’re feeling,
what you’re thinking and where we can work together to solve
problems and help with how life is going for you.
Q Is there any conversation about the importance of being
truthful in therapy?
A Certainly.
Q Do you recall any specifics about those conversation [sic]?
A Well, one of . . . [A.F.], as with many children, did have
difficulty, at times, with truthfulness. And so, as reported by her
foster mother, and so it . . . the difference between what is the
truth, what is a lie is important to discuss with the child.
Q Did you discuss, though, the importance of being truthful in a
therapeutic setting?
A The way that I discuss that with children is to talk about them
feeling safe, and not feeling fearful. Not needing to say
something that I want to hear or what that they think I want to
hear. Being able to talk about how they are experiencing life,
how they ex- are experiencing even the setting of, of therapy. To
be able to talk about that and, and to reduce any fear that they
might have, um . . . assist children to be truthful and open, what I
could call, “open,” in a therapy session.
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 28 of 33
Q And then, in this most recent session, had you communicated
to [A.F.] that you were there to help her?
A Yes, most definitely.
Q You described a little bit on direct examination about [A.F.’s]
response when she received the letter from her father.
A Yes.
Q I believe I’ve now laid the appropriate foundation that would
allow you to say exactly how she responded and what she said,
so could you tell the Court that, please?
Father’s Counsel then objected and GAL’s counsel responded in
part that “Statements to a therapist can certainly be included, as
long as the child understands she’s there for therapy.” Id. at 194.
[54] The record reveals that A.F. was born in September 2005 and that Hood went
over Father’s letter with her in October 2015 when she was ten years old.
Based upon the testimony, A.F. understood she was someplace safe, and Hood
explained that therapy was where they could work together to solve problems
and that she was there to help her. Under the circumstances, we cannot say the
trial court abused its discretion in admitting A.F.’s statements to Hood pursuant
to Rule 803(4).
2. Basis for Recommendation
[55] Father argues that the trial court abused its discretion by admitting the
testimony of Hale, the foster home therapeutic support specialist for the
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 29 of 33
children, that A.F. had touched her sister inappropriately. DCS argues that the
statement was not offered for the truth of the matter and was offered as the
basis why the witness would not recommend the children share a bedroom.
[56] As noted, testimony from J.O., Tubbs, and Hood, to which Father’s counsel
did not object, addressed the sexualized behavior of A.F. Even assuming that
Hale’s testimony to which Father objected was admitted for the truth of the
matter asserted, we cannot say that the admission warrants reversal. See
Anderson, 630 N.E.2d at 232; Homehealth, Inc., 600 N.E.2d at 974.
3. Voice of the Children
[57] Father argues that the trial court abused its discretion by allowing GAL
Cavanaugh to summarize and testify to what the children had said because she
was the voice of the children. He asserts that there is nothing about the role of
the guardian ad litem that creates an exception to the hearsay rule prohibiting
testimony about out-of-court statements and that summarizing out-of-court
statements is no less hearsay than repeating the statements verbatim.
[58] DCS argues that it appears Father acquiesced to the GAL providing the
summaries because he objected only when it appeared that the GAL was going
to testify to one child’s specific statement, and that Father waived his argument
because he raised it for the first time on appeal.
[59] We note that Father did not object following the trial court’s statement that
GAL Cavanaugh could summarize but not repeat what the children said
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 30 of 33
verbatim. Further, as pointed out by DCS, GAL Cavanaugh testified that A.F.
indicated that she wants only to be adopted but that M.F. would not mind
living with Father if that was a possible option, and that D.F. would like to live
with Father if Mother and Father could not reunite. Thus, two of the three
children indicated that they would live with Father. Under the circumstances
and in light of the other evidence including Father’s multiple incarcerations, the
recommendation of FCM Fahnbulleh that placement and adoption was in the
children’s best interests, and Hood’s support for the adoption plan, we cannot
say that reversal is warranted.
B. Expert Testimony
[60] Father contends that the trial court abused its discretion by admitting GAL
Cavanaugh’s testimony that there was trauma to the children from being
removed from their parents, placed back with parents, and removed again. He
cites Ind. Evidence Rule 702, which governs the admission of expert testimony,
and asserts that the testimony did not establish that the GAL was an expert and
there was no evidence of what scientific principles the GAL’s testimony about
trauma to the children rested upon, much less that it was reliable. 2
2
Ind. Evidence Rule 702 is titled “Testimony by Expert Witnesses” and provides:
(a) A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if the expert’s scientific, technical,
or other specialized knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue.
(b) Expert scientific testimony is admissible only if the court is satisfied that the expert
testimony rests upon reliable scientific principles.
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 31 of 33
[61] DCS argues that Father’s argument is misplaced because counsel did not tender
GAL Cavanaugh as an expert witness nor did the court qualify her as an expert.
DCS also asserts that even assuming that the trial court erred, there was
independent evidence of the trauma the children suffered.
[62] Father’s counsel did not specifically mention Rule 702 at the hearing; rather,
counsel stated: “Objection, Judge. Lack of foundation. We don’t know what
the training was that she has received related to trauma based on removal from
the parents. I don’t believe that we know what kind of expertise she could place
on that question.” Transcript at 339.
[63] A lay witness may testify as to opinions or inferences which are rationally based
on some combination of the witness’s own personal observation, knowledge,
and past experience. See Ind. Evidence Rule 701. 3 GAL Cavanaugh testified
that she served as a guardian ad litem for more than sixteen years, that she was
assigned as the guardian ad litem for the children, and that she observed the
children and spoke with them individually. Without objection, GAL
Cavanaugh testified that she recommended that phone contact be suspended
based upon things the children said during a visit, including that M.F. was very
confused about the contact because she did not remember Father and A.F. was
not comfortable with the phone calls. She also testified that she recommended
3
Ind. Evidence Rule 701 provides: “If a witness is not testifying as an expert, testimony in the form of an
opinion is limited to one that is: (a) rationally based on the witness’s perception; and (b) helpful to a clear
understanding of the witness’s testimony or to a determination of a fact in issue.”
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 32 of 33
the plan change to adoption in December 2014 because Father had not
completed services and the children had unstable parenting for many years.
She testified that she received training on trauma and following the objection of
Father’s counsel based upon lack of foundation and the court’s overruling of the
objection, GAL’s counsel asked: “Do you believe that there is any trauma
involved, speaking of these children in particular, because of their living with
parents, being removed, living with parents; the cycle that they’ve been
through?” Transcript at 339. GAL Cavanaugh answered: “Keeps the children
emotionally up and down, not knowing what’s gonna happen next . . . .” Id.
We conclude that GAL Cavanaugh’s opinion was rationally based on her
personal observation, knowledge, and past experience, and thus that the court
did not abuse its discretion when it admitted her testimony that the children
suffered trauma.
Conclusion
[64] For the foregoing reasons, we affirm the termination of Father’s parental rights.
[65] Affirmed.
Robb, J., and Mathias, J., concur.
Court of Appeals of Indiana | Opinion 49A04-1605-JT-1030 | February 14, 2017 Page 33 of 33