In re the Termination of the Parent-Child Relationship of S.K., E.K., and M.K. (Minor Children), and S.K., Sr. (Father) v. Indiana Department of Child Services

FILED
May 13 2019, 7:52 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jennifer Fehrenbach Taylor Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
Abigail R. Recker
Robert J. Henke
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In re the Termination of the May 13, 2019
Parent-Child Relationship of Court of Appeals Case No.
S.K., E.K., and M.K. (Minor 18A-JT-2200
Children), and Appeal from the Warren Circuit
S.K., Sr. (Father), Court
The Honorable Hunter J. Reece,
Appellant-Respondent,
Judge
v. Trial Court Cause Nos.
86C01-1802-JT-10
Indiana Department of Child 86C01-1802-JT-11
86C01-1802-JT-12
Services,
Appellee-Petitioner.

Mathias, Judge.

Court of Appeals of Indiana | Opinion 18A-JT-2200 | May 13, 2019 Page 1 of 15
[1] The Warren Circuit Court terminated S.K.’s (“Father”) parental rights to his

three minor children, and Father appeals. He raises three issues, which we

restate as:

I. Whether the trial court abused its discretion when it allowed the children’s
therapist to testify concerning statements made by the children;

II. Whether the Department of Child Services (“DCS”) proved that it made
reasonable efforts to reunify the children and Father; and

III. Whether the trial court’s order terminating Father’s parental rights is
supported by clear and convincing evidence.

[2] We affirm.

Facts and Procedural History

[3] Father has three children: S.K., Jr. born in October 2004, E.K. born in May

2006, and M.K. born in March 2011. DCS removed the children from Father’s

care in September 2016 after Father was arrested and charged with murdering

the children’s mother. Father was also charged with arson for burning down

Mother’s home. DCS placed the children with D.H., their maternal

grandmother. Father has not seen the children since their removal and his

incarceration.

[4] On September 29, 2016, DCS filed petitions alleging that the children were

Children In Need of Services (“CHINS”). Father admitted that he was unable

to provide for the children’s needs due to his incarceration. The children were

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 adjudicated CHINS on January 11, 2017. Father was ordered to complete

certain services upon his release from incarceration.

[5] In January 2018, Father was found guilty of murdering the children’s mother

and Level 4 arson. On February 22, 2018, Father was ordered to serve an

aggregate sentence of sixty-five years for his murder and arson convictions.

Father has appealed his convictions, and his appeal is pending.

[6] On February 7, 2018, the trial court entered an order that reasonable efforts to

reunify Father and the children were no longer necessary pursuant to Indiana

Code section 31-34-21-5.6. Shortly thereafter, DCS filed petitions to

involuntarily terminate Father’s parental rights to all three children.

[7] Throughout the CHINS and termination proceedings the children have been

under the care of a therapist, who also provides family therapy for the children

and maternal grandmother. The children are understandably traumatized by

their Mother’s murder and Father’s imprisonment. They are both angry with

Father and afraid of him. Tr. p. 105. The oldest child, S.K., Jr., suffers from

panic attacks around court dates.

[8] A fact-finding hearing was held on August 15, 2018. The children’s therapist

testified that each child’s mental health is improving, but she does not

recommend visitation with Father because this would cause the children to

suffer additional trauma. Id. at 109–110. The children still struggle with anxiety

and they need stability. The children’s court appointed special advocate and

their guardian ad litem also testified that the children need stability and

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 terminating Father’s parental rights is in the children’s best interests. Id. at 126,

128.

[9] DCS intends for the children to be adopted by their maternal grandmother. The

children are doing well in their placement with their grandmother, and they are

bonded to her and trust her. Their school performance has improved as well.

Father testified that he would voluntarily terminate his parental rights if he

could be assured that maternal grandmother would be allowed to adopt the

children. Id. at 20–21.

[10] On August 17, 2018, the trial court issued an order terminating Father’s

parental rights to all three children. The trial court noted that the children were

previously adjudicated CHINS in 2011 and were removed from parents. In

those proceedings, a no contact order was served on Father “for the protection

of each of the Children in the respective cases.” Appellant’s Br. at 22. Father

completed assessments for substance abuse, domestic violence, and mental

health. The no contact order eventually expired, and the 2011 CHINS

proceedings were dismissed at DCS’s request.

[11] The trial court also found that in April 2016, Father was charged with and

arrested for battery resulting in bodily injury for battering the children’s mother.

A no contact order was entered against Father for a second time, and the

children were removed from Father’s care. DCS filed a CHINS petition for the

children in June 2016, but the trial court determined that the petition was not

supported by probable cause and did not authorize DCS to file the petition. The

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 battery case was dismissed after Father murdered the children’s mother in

September 2016.

[12] Next, the trial court found that Father does not have the ability to care for his

children. The court also noted that although Father was not ordered to

participate in programs while incarcerated, he has not made any effort to

voluntarily complete programming to better his ability to parent. The court also

found:

20. The Children are no longer bonded to their father.

21. The Children need continuity and stability, as they suffer
from anxiety caused by the prolonged litigation and uncertainty
of permanency.

22. The Children are angry at their Father for the murder of their
Mother, irregardless of the Father’s contention of his innocence
or the jury finding of his guilt.

23. Father has been incarcerated almost two years already and
had no contact with the Children since the murder of the Mother.

24. Father was not subject to any order from any court
preventing him from having contact with the Children since the
murder of the Mother.

25. Children are well adjusted, doing better in school now that
they are in placement, and fully engaged in counseling.

26. Father is incapable of caring for the Children or participating
in their child rearing due to the length of his sentence.

27. The Court takes judicial notice of the process involved in
criminal appeals; the time it takes to complete such complex
appellate cases as a murder trial; the fact that either party could
seek transfer to our Indiana Supreme Court; and that
Court of Appeals of Indiana | Opinion 18A-JT-2200 | May 13, 2019 Page 5 of 15
 proceeding[s] for post-conviction relief are equally time
consuming. Further, should the Father prevail in his criminal
appeal and assuming the State does not seek transfer, the best
possible result would be remand for a new trial, which would
likely return the case to where Father was two years ago. The
Court further takes judicial notice that Father’s trial attorney in
his criminal case withdrew on 3/16/2018, citing essential break
down in the attorney-client relationship and declining to proceed
with the appeal. In the event of [remand], while the State may be
immediately prepared to proceed, a new defense counsel would
need to be appointed and become familiar with the case from
square one.

28. The Father is currently unemployed, housed in the
Department of Correction[] under a 65-year sentence (less time
served), and has paid no child support in the past, almost two
years, there is a history of substantiated neglect with these
Children, and he has a criminal history.

Appellant’s App. pp. 39–40. The trial court also found that any visitation or

placement with Father would cause additional trauma to the children, and that

the children are stable, secure, and bonded to their maternal grandmother.

[13] The trial court terminated Father’s parental rights after concluding that the

conditions that resulted in the children’s removal or reasons for placement

outside the parent’s home will not be remedied, that continuation of the parent-

child relationship poses a threat to the well-being of the children, and

termination of Father’s parental rights was in the children’s best interests.

Father now appeals.

Court of Appeals of Indiana | Opinion 18A-JT-2200 | May 13, 2019 Page 6 of 15
 Standard of Review

[14] “We have long had a highly deferential standard of review in cases involving

the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d

85, 92 (Ind. Ct. App. 2014).

We neither reweigh evidence nor assess witness credibility. We
consider only the evidence and reasonable inferences favorable to
the trial court's judgment. Where the trial court enters findings of
fact and conclusions thereon, we apply a two-tiered standard of
review: we first determine whether the evidence supports the
findings and then determine whether the findings support the
judgment. In deference to the trial court’s unique position to
assess the evidence, we will set aside a judgment terminating a
parent-child relationship only if it is clearly erroneous.

Id. at 92–93 (citations omitted). “A judgment is clearly erroneous if the findings

do not support the trial court’s conclusions or the conclusions do not support

the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).

Hearsay Testimony

[15] First, Father argues that the trial court erred when it admitted the children’s

therapist’s testimony concerning statements the children made to the therapist.

The only statements that Father specifically objected to at the fact-finding

hearing and in his brief are statements the therapist made concerning whether

the children were aware that Father killed their mother and whether they

understood that they could visit Father. Appellant’s Br. at 26–27.

Court of Appeals of Indiana | Opinion 18A-JT-2200 | May 13, 2019 Page 7 of 15
[16] Hearsay is a statement “not made by the declarant while testifying at the trial or

hearing; and is offered in evidence to prove the truth of the matter asserted.”

Ind. Evidence Rule 801(c). Hearsay statements are not admissible, except

pursuant to certain exceptions within the Rules of Evidence. See Ind. Evid. R.

802.

One such exception generally permits statements made for the
purpose of medical diagnosis or treatment to be admitted into
evidence, even when the declarant is available. The statements
must be “made by persons who are seeking medical diagnosis or
treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.” Rule 803(4)’s
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 v. State, 986 N.E.2d 255, 260 (Ind. 2013) (internal citations omitted).

[17] We apply a two-step analysis for admission under Rule 803(4): “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 v. State, 675 N.E.2d 329, 331 (Ind. 1996)).

“[T]he declarant must subjectively believe that he was making the statement for

the purpose of receiving medical diagnosis or treatment.” Id.

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 But . . . where the declarant is a young child brought to the
medical provider by a parent, we have acknowledged that such
an inference may be less than obvious. Such 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. 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.” 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. But whatever its source, this foundation must be present and
sufficient.

Id. at 261 (internal citations omitted).

[18] The children’s therapist testified to her opinions concerning the children’s

mental state based on conversations she had with the children on the day

Father killed their mother and statements made during therapy. The initial

conversations between the therapist and the children were not for the purpose

of therapy, but simply to help the children process their feelings and provide

them with support. Tr. p. 116. We agree that, when they initially interacted

with the therapist, the children likely did not understand that they were making

statements to the therapist for the purpose of diagnosis or treatment.

[19] However, “[t]he improper admission of evidence is harmless error when the

judgment is supported by substantial independent evidence to satisfy the

reviewing court that there is no substantial likelihood that the questioned
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 evidence contributed to the judgment.” In re Termination of Parent-Child

Relationship of E.T., 808 N.E.2d 639, 645–46 (Ind. 2004) (citing D.W.S. v.

L.D.S., 654 N.E.2d 1170, 1173 (Ind. Ct. App. 1995)). And “[i]n bench trials, it

is generally presumed that the trial judge disregards inadmissible evidence and

renders its decision solely on the basis of relative and probative evidence.” In re

A.J., 877 N.E.2d 805, 814 (Ind. Ct. App. 2007), trans. denied.

[20] The children’s therapist’s testimony concerning the children’s fear of and anger

with Father was based primarily on her observations of the children and the

statements made to her during therapy. See Tr. pp. 102–20. The children’s

therapist also testified concerning her treatment plan and the goals she and the

children are working on in therapy. Id. This testimony did not constitute

inadmissible hearsay. And to the extent that the trial court erred by admitting

certain hearsay statements, such error is harmless under the facts and

circumstances of this case.

Efforts to Reunify

[21] Next, Father argues that “DCS did not make a good faith effort to reunify

Father with the children because it failed to make any referrals for him

throughout the life of the children in need of services cases.” Appellant’s Br. at

18. “DCS is generally required to make reasonable efforts to preserve and

reunify families during CHINS proceedings.”1 In re H.L., 915 N.E.2d 145, 148

1
However, this CHINS statutory provision is not a requisite element of our termination statute, and “failure
to provide services does not serve as a basis on which to directly attack a termination order as contrary to

Court of Appeals of Indiana | Opinion 18A-JT-2200 | May 13, 2019 Page 10 of 15
 (Ind. Ct. App. 2009) (citing Ind. Code § 31-34-21-5.5)). But “[i]n determining

the extent to which reasonable efforts to reunify or preserve a family are

appropriate under this chapter, the child’s health and safety are of paramount

concern.” I.C. § 31-34-21-5.5.

[22] Although Father encourages our court to consider the possibility that his

convictions will be reversed on appeal or in post-conviction relief proceedings,

we must consider the circumstances presently before us. Father is incarcerated

for sixty-five years, and his earliest possible release date is in 2065. Due to his

incarceration, DCS was unable to offer services to Father or to evaluate him to

determine what services might benefit him. Under these circumstances, and

most importantly, because Father is incarcerated for killing the children’s

mother, DCS’s failure to offer reunification services to Father does not

constitute a deprivation of his due process rights. See In re H.L., 915 N.E.2d at

148; Castro v. State Office of Family and Children, 842 N.E.2d 367, 377 (Ind. Ct.

App. 2006), trans. denied.

Sufficient Evidence
[23] Finally, Father argues that the evidence is insufficient to support the

termination of his parental rights. “The purpose of terminating parental rights is

not to punish the parents but, instead, to protect their children. Thus, although

law.” In re H.L., 915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009) (citing In re E.E., 736 N.E.2d 791, 796 (Ind.
Ct. App. 2000)).

Court of Appeals of Indiana | Opinion 18A-JT-2200 | May 13, 2019 Page 11 of 15
 parental rights are of a constitutional dimension, the law provides for the

termination of these rights when the parents are unable or unwilling to meet

their parental responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App.

2008) (citation omitted). “[T]ermination is intended as a last resort, available

only when all other reasonable efforts have failed.” Id.

[24] A petition for the involuntary termination of parental rights must allege in

pertinent part:

(B) that one (1) of the following is true:

(i) There is a reasonable probability that the conditions
that resulted in the child’s removal or the reasons for
placement outside the home of the parents will not be
remedied.

(ii) There is a reasonable probability that the continuation
of the parent-child relationship poses a threat to the well-
being of the child.

(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of
the child.

Ind. Code § 31-35-2-4(b)(2).

[25] DCS must prove that termination is appropriate by a showing of clear and

convincing evidence. In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016). If the trial

court finds that the allegations in a petition are true, the court shall terminate

Court of Appeals of Indiana | Opinion 18A-JT-2200 | May 13, 2019 Page 12 of 15
 the parent-child relationship. Ind. Code § 31-35-2-8(a). Finally, because Indiana

Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, the trial court need

only find that one of the three requirements of that subsection has been

established by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs.,

987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.

[26] Father argues that the trial court improperly terminated his parental rights

“based upon criminal history and incarceration,” because he was not afforded

the presumption of innocence during the CHINS proceedings, and appeal of his

convictions is still pending. Appellant’s Br. at 14–15.

[27] The children were removed from Father’s care because he was arrested and

incarcerated for murder and arson. Father is still incarcerated and will likely

remain incarcerated until 2065, at which time, Father’s youngest child will be

fifty-four years old. Father is currently unable to care for the children and will

remain unable to care for them for the foreseeable future. Even if Father’s

convictions and sentence are reversed on appeal on some future date, the

children require stability and permanency now.

[28] For these reasons, we conclude that DCS established by clear and convincing

evidence that there is a reasonable probability that the conditions that resulted

in the children’s removal or the reasons for their placement outside Father’s

home will not be remedied. Therefore, we need not address the other factors

listed in Indiana Code section 31-35-2-4(B)(2)(B). See A.D.S., 987 N.E.2d at

1156.

Court of Appeals of Indiana | Opinion 18A-JT-2200 | May 13, 2019 Page 13 of 15
[29] Father also argues that there is insufficient evidence that the termination was in

the children’s best interests. To determine whether termination of parental

rights is in the best interests of a child, the trial court is required to look at the

totality of the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004),

trans. denied. In so doing, the court must subordinate the interests of the parents

to those of the child involved. Id. Termination of the parent-child relationship is

proper where the child’s emotional and physical development is threatened. In

re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. The trial court

need not wait until the child is irreversibly harmed such that his physical,

mental, and social development is permanently impaired before terminating the

parent-child relationship. Id. In addition, a child’s need for permanency is a

central consideration in determining the child's best interests. In re G.Y., 904

N.E.2d 1257, 1265 (Ind. 2009). Further, the testimony of the service providers

may support a finding that termination is in the child's best interests. McBride v.

Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App.

2003).

[30] In this case, Father destroyed his relationship with his children when he

murdered their mother and burned down their home. Father caused significant

harm and trauma to his children. Even considering the possibility that Father’s

convictions might eventually be reversed on appeal, the children require

stability immediately. They have suffered long enough. The trial court’s

conclusion that termination is in the children’s best interests is also supported

by the opinions of their therapist and the DCS service providers.

Court of Appeals of Indiana | Opinion 18A-JT-2200 | May 13, 2019 Page 14 of 15
 Conclusion

[31] Our court will reverse a termination of parental rights “only upon a showing of

‘clear error’—that which leaves us with a definite and firm conviction that a

mistake has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d

1232, 1235 (Ind. 1992). We find no such error here and therefore affirm the trial

court.2

May, J., and Brown, J., concur.

2
Father also complains that the trial court misinformed him concerning his deadline for filing his notice of
appeal. But Father filed his notice of appeal within the timeframe prescribed by Appellate Rule 9(A)(1) and
has not established that he was prejudiced or harmed by the trial court’s misstatement.

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