MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                            Oct 22 2015, 5:34 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
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
James T. Knight                                           Gregory F. Zoeller
Logansport, Indiana                                       Attorney General of Indiana

                                                          Robert J. Henke
                                                          David E. Corey
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              October 22, 2015
Parent-Child Relationship of:                             Court of Appeals Case No.
G.J. and J.E., II (minor                                  25A04-1504-JT-140
children),                                                Appeal from the Fulton Circuit
and                                                       Court
                                                          The Honorable A. Christopher
                                                          Lee, Judge
D.J. (mother),
                                                          Trial Court Cause No.
Appellant-Respondent,                                     25C01-1403-JT-30
                                                          25C01-1403-JT-31
        v.

The Indiana Department of
Child Services,
Appellee-Petitioner.


Court of Appeals of Indiana | Memorandum Decision 25A04-1504-JT-140 | October 22, 2015       Page 1 of 13
      May, Judge.


[1]   D.J. (Mother) appeals the involuntary termination of her parental rights to G.J.

      and J.E., II (collectively, Children). Mother argues the trial court abused its

      discretion when it admitted certain evidence and the Department of Child

      Services (DCS) did not present sufficient evidence that termination of her

      parental rights was in the best interests of Children.


                                     Facts and Procedural History
[2]   Mother 1 gave birth to G.J. on August 1, 2007, and to J.E., II, on July 29, 2009.

      DCS first became involved with the family after Mother’s husband (Stepfather 2)

      abused Mother in November 2011 and January 2012. After each incident, DCS

      worked with Mother to put a safety plan in place in the event of further

      domestic abuse incidents. On February 26, 2012, police arrested Stepfather for

      a third domestic violence occurrence against Mother.


[3]   On March 13, 2012, DCS filed a petition alleging Children were Children in

      Need of Services (CHINS) based on the domestic violence against Mother.

      Children remained in Mother’s care, and the trial court adjudicated Children as

      CHINS on March 20, 2012, on Mother’s admission. The trial court ordered




      1
       The parental rights of Children’s fathers were also involuntarily terminated. The fathers do not participate
      in this appeal.
      2
          Mother did not marry Stepfather until July 2012. However, for clarity, we will refer to him as “Stepfather.”


      Court of Appeals of Indiana | Memorandum Decision 25A04-1504-JT-140 | October 22, 2015              Page 2 of 13
      Mother to complete parenting and substance abuse services, and submit to

      random drug tests.


[4]   DCS removed Children from Mother’s home and placed them in foster care on

      May 21, 2012, when Mother was arrested for a probation violation. In June

      2012, Mother attempted suicide. In November 2012, DCS allowed Children to

      return to Mother’s home. In January 2013, Mother was arrested. Children

      remained in Mother’s home with Stepfather in an effort to maintain stability.

      On April 19, 2013, DCS removed Children from Mother’s home after Mother

      and Stepfather tested positive for methamphetamine twice and Mother

      admitted to using methamphetamine. Mother was arrested on April 29, 2013,

      and was incarcerated again on September 25, 2014.


[5]   On March 6, 2014, DCS filed a petition to involuntarily terminate Mother’s

      parental rights to Children. The trial court held fact-finding hearings on

      December 16 and 17, 2014. On March 3, 2015, the trial court entered orders

      terminating Mother’s parental rights to Children. 3


                                        Discussion and Decision
[6]   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




      3
       The trial court entered an order for each child. The orders were nearly identical except for identifying
      characteristics of each child. For the purposes of this opinion, we will cite the termination order regarding
      G.J.

      Court of Appeals of Indiana | Memorandum Decision 25A04-1504-JT-140 | October 22, 2015             Page 3 of 13
      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 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).


[7]   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.


                                           Admission of Evidence

[8]   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 on impermissible considerations. Id. Even if a trial court errs in a ruling




      Court of Appeals of Indiana | Memorandum Decision 25A04-1504-JT-140 | October 22, 2015   Page 4 of 13
       on the admissibility of evidence, we will reverse only if the error is inconsistent

       with substantial justice. Id.

                                                       Exhibit 6


[9]    During the termination fact-finding hearing, DCS tendered Exhibit 6, consisting

       of Mother’s counseling records. Mother objected, stating, “I am going to

       object, Your Honor . . . I’m not able to cross-examine anybody about the

       contents; and there’s so [sic] a variety of hearsay statements in this document as

       well.” (Tr. at 106.) The trial court admitted the record over Mother’s

       objection. 4 Mother argues the trial court abused its discretion when it allowed

       DCS’s Exhibit 6 into evidence because it contained hearsay and Mother was

       not able to cross-examine the individuals who prepared the records.


[10]   Regarding Mother’s mental health counseling at Four County Counseling

       Center, the trial court found:

               10. Mother initially participated well in services. Mother was
               already participating in substance abuse services as a result of
               convictions for alcohol related offenses.
                                             *****
               12. In June of 2012, the Mother attempted to commit suicide
               and was committed briefly to Four County Counseling Center.


       4
[1]      DCS provided documentation indicating the records were “made pursuant to Indiana Rules of Evidence
       Sections 803(6) and 902(9).” Exhibit 6. Ind. R. Evid. 902(9) relates to “Commercial paper, a signature on it,
       and related documents, to the extent allowed by general commercial law.” In her brief, Mother argues, “IRE
       902(9) is not an appropriate basis upon which to admit medical treatment records.” (Br. of Appellant at 9.)
       We are unable to consider Mother’s argument regarding Ind. R. Evid 902(9), as she did not present it before
       the trial court. See Dennerline v. Atterholt, 886 N.E.2d 582, 594 (Ind. Ct. App. 2008) (issue not presented
       before trial court is waived for appellate review), reh’g denied, trans. dismissed.



       Court of Appeals of Indiana | Memorandum Decision 25A04-1504-JT-140 | October 22, 2015           Page 5 of 13
                                            *****
             26. Kathy Strong, a substance abuse therapist at Four County
             Counseling Center, provided substance abuse services to Mother
             for an extended period of time.
             27. Ms. Strong has concerns about Mother’s ongoing use of
             prescription medications and that [Mother] had been regularly
             taking these medications since she was 18 years old.
             28. Following the positive test result for methamphetamine,
             attempts were made to get Mother into inpatient substance abuse
             treatment but were unsuccessful because of Mother’s prior
             suicide attempt. Evidently, folks with a recent history of self-
             harm are excluded from in patient substance abuse treatment.
             29. Kathy Strong advised [Mother’s Family Case Manager] that
             Four County Counseling Center had no additional programs
             available to address [Mother’s] substance abuse issues and
             suggested DCS look for alternative programs available through a
             different service provider.
                                            *****
             40. Mother regularly failed to come into Four County
             Counseling and submit to random drug testing despite being
             advised that a failure to get tested would result in a presumed
             positive drug screen. The Court accepts that Mother had
             difficulties getting to Four County for testing because she did not
             have a license.
       (App. at 15-18.)


[11]   However, the trial court made forty-three findings about other matters that

       support the termination of Mother’s parental rights to Children, including:

               2. On February 26, 2012, Mother was physically assaulted by
               [Stepfather], resulting in serious bruising to her right eye and
               requiring medical treatment.
               3. There were five children living in Mother’s home on February
               26, 2012. The oldest of the five children had to forcible [sic]
               remove [Stepfather] off of the Mother while another child called
               911. [Children were] present during the incident. Law
       Court of Appeals of Indiana | Memorandum Decision 25A04-1504-JT-140 | October 22, 2015   Page 6 of 13
        Enforcement arrived and [Stepfather] was arrested for domestic
        battery. [Stepfather] was consuming alcohol in advance of the
        incident.
                                       *****
        6. [Children] remained in the home with Mother immediately
        after the February 26, 2012 incident and Mother was instructed
        to call 911 if there was any further contact with [Stepfather]. At
        that point, [Stepfather] was barred from having contact with
        [Mother] as the result of a no contact order issued in
        [Stepfather’s] criminal case.
                                       *****
        15. In January, 2013, Mother was arrested for driving while
        suspended and possession of a controlled substance. [Children]
        remained in the home with [Stepfather] while Mother remained
        incarcerated.
        16. In March of 2013, Mother was not participating fully in
        services and the conditions in Mother’s home began to
        deteriorate.
        17. In April of 2013, Mother tested positive twice for
        Methamphetamine. [Stepfather] also tested positive for
        Methamphetamine in April, 2013. At the point of the positive
        drug test, Mother had already participated in substance abuse
        services. At this point [Mother] was not participating in services
        in a meaningful fashion.
        18. On April 13, 2013, the trial home visit was disrupted and
        [Children were] removed from Mother’s home[.]
        19. Shortly after the positive drug screen in April, 2013 [Mother]
        was again incarcerated and remained so until July or August of
        2013.
        20. Mother remained incarcerated until July or August of 2013.
        Mother did not visit with [Children] during her incarceration.
        21. Mother’s visits with [Children] were suspended on the
        recommendation of [Children’s] therapist, Sandra Ringer.
        22. Sandra Ringer felt the visits should be suspended because of
        the multiple disruptions in visits because Mother was in and out
        of jail. The on again - off again visits were hurtful to [Children].


Court of Appeals of Indiana | Memorandum Decision 25A04-1504-JT-140 | October 22, 2015   Page 7 of 13
        23. Sandra Ringer was also concerned that [Mother] had a
        history of substance abuse, had tested positive for
        Methamphetamine, and was not actively participating in
        treatment.
                                      *****
        25. Mother has not seen [Children] in over a year.
                                      *****
        45. Mother’s criminal history includes:
               a. 09/08/2011: 25D01-1004-CM-148 Operating a Motor
               Vehicle with a BAC .08% or greater.
               b. 09/08/2011: 25D01-1011-CM-424 Public Intoxication.
               c. 12/12/2012: 25D01-1205-CM-179 Driving While
               Suspended.
               d. 04/24/2013: 25D01-1301-FD-13 Driving While
               Suspended.
               e. 03/25/2014: 25D01-1309-FD-631 Conversion.
        46. Mother’s multiple incarcerations on initial arrest, failures to
        appear, and probation reviews frustrated attempts at reunification
        because services were disrupted, visits were suspended, and
        placements with Mother were modified or terminated.
                                      *****
        49. On December 12, 2014, less than a week before the
        termination hearing, Mother called law enforcement and
        requested assistance because of a domestic dispute between
        [Stepfather] and one of her older sons. Mother advised law
        enforcement that [Stepfather] choked her son. [Stepfather] drove
        from the scene despite not having a valid license. Mother also
        told law enforcement that [Stepfather] had threatened her life.
        Mother now claims that it was her son that was choking
        [Stepfather]. The Court finds that [Mother] told law enforcement
        that [Stepfather] choked her son because [Stepfather] was the
        aggressor in the dispute. The Court further finds that Mother’s
        claim that it was her son that choked [Stepfather] is false.
(Id. at 14-19.)




Court of Appeals of Indiana | Memorandum Decision 25A04-1504-JT-140 | October 22, 2015   Page 8 of 13
[12]   An error in the admission of evidence is harmless when “the judgment is

       supported by substantial independent evidence to satisfy the reviewing court

       that there is no substantial likelihood that the questioned evidence contributed

       to the judgment.” In re E.T., 802 N.E.2d 639, 646 (Ind. 2004). Based on the

       numerous findings that supported the termination of Mother’s parental rights

       without referencing Mother’s treatment at Four County Counseling Center, we

       hold there existed substantial evidence independent of the evidence to which

       Mother objects, such that any error in that evidence’s admission was harmless.

                                               Mother’s Testimony


[13]   During the fact-finding hearing, Mother was DCS’s first witness. During her

       testimony, DCS asked Mother about domestic violence involving Stepfather

       and about Mother’s prior history with DCS. Mother’s counsel objected and

       argued DCS asked about domestic violence “solely to impeach [Mother], and

       these are questions that would be happening on cross-examination, not on

       direct.” (Tr. at 32.) Mother’s counsel also objected to questions about

       Mother’s prior history with DCS because the questions were “improper for

       direct examination. He’s leading the witness and, again, just calling her for

       purposes of impeachment.” (Id. at 46.) The trial court overruled both

       objections and Mother continued her testimony.


[14]   On appeal, Mother asserts “Indian[a] courts forbid impeachment of one’s own

       witness by prior inconsistent statement[s] if the sole purpose in calling the




       Court of Appeals of Indiana | Memorandum Decision 25A04-1504-JT-140 | October 22, 2015   Page 9 of 13
       witness was to place otherwise inadmissible evidence before the jury. 5” (Br. of

       Appellant at 9) (footnote added). However, she does not identify what

       evidence was “otherwise inadmissible” or explain why it was “otherwise

       inadmissible.” (Id.) Under Ind. R. Evid. 607, a witness’ credibility may be

       attacked by any party, including the party calling the witness, and under Ind. R.

       Evid. 611(c), leading questions are allowed when questioning a hostile witness

       or an adverse party. Therefore, the trial court did not abuse its discretion when

       overruling counsel’s objections during Mother’s testimony.


                                            Best Interests of Children

[15]   “The traditional right of parents to establish a home and raise their children is

       protected by the Fourteenth Amendment of the United States Constitution.” In

       re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A juvenile court

       must subordinate the interests of the parents to those of the child, however,

       when evaluating the circumstances surrounding a termination. In re K.S., 750

       N.E.2d at 837. The right to raise one’s own child should not be terminated

       solely because there is a better home available for the child, id., but parental

       rights may be terminated when a parent is unable or unwilling to meet his or

       her parental responsibilities. Id. at 836.




       5
        We note the hearing was not before a jury. “We presume the trial judge is aware of and knows the law and
       considers only evidence properly before him or her in reaching a decision.” Conley v. State, 972 N.E.2d 864,
       873 (Ind. 2012), reh’g denied.

       Court of Appeals of Indiana | Memorandum Decision 25A04-1504-JT-140 | October 22, 2015         Page 10 of 13
[16]   To terminate a parent-child relationship in Indiana, the State must allege and

       prove:


                (A)     that one (1) of the following is true:
                        (i)     The child has been removed from the parent for at
                        least six (6) months under a dispositional decree.
                        (ii)    A court has entered a finding under IC 31-34-21-5.6
                        that reasonable efforts for family preservation or
                        reunification are not required, including a description of
                        the court’s finding, the date of the finding, and the manner
                        in which the finding was made.
                        (iii) The child has been removed from the parent and
                        has been under the supervision of a county office of family
                        and children or probation department for at least fifteen
                        (15) months of the most recent twenty-two (22) months,
                        beginning with the date the child is removed from the
                        home as a result of the child being alleged to be a child in
                        need of services or a delinquent child;
                (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.
[17]   Ind. Code § 31-35-2-4(b)(2). The State must provide clear and convincing proof

       of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g

       denied. If the court finds the allegations in the petition are true, it must

       terminate the parent-child relationship. Ind. Code § 31-35-2-8.




       Court of Appeals of Indiana | Memorandum Decision 25A04-1504-JT-140 | October 22, 2015   Page 11 of 13
[18]   Pursuant to Ind. Code § 31-35-2-4(b)(2)(C), DCS must provide sufficient

       evidence “that termination is in the best interests of the child.” In determining

       what is in the best interests of a child, the trial court is required to look beyond

       the factors identified by DCS and consider the totality of the evidence. In re

       J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). In so doing, the trial court must

       subordinate the interests of the parent to those of the child. Id. The court need

       not wait until a child is harmed irreversibly before terminating the parent-child

       relationship. Id. Recommendations of the case manager and court-appointed

       advocate, in addition to evidence the conditions resulting in removal will not be

       remedied, are sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests. Id.


[19]   A parent’s historical inability to provide a suitable environment, along with the

       parent’s current inability to do the same, supports finding termination of

       parental rights is in the best interests of the children. Lang v. Starke County Office

       of Family & Children, 861 N.E.2d 366, 373 (Ind. Ct. App. 2007), trans. denied.

       Mother argues the termination of her parental rights was not in the best

       interests of Children because “substantial evidence indicated that [she] was

       cooperating in services[.]” (Br. of Appellant at 10.)


[20]   DCS presented evidence Mother did not successfully complete many services

       offered, tested positive for illegal substances multiple times throughout the

       proceedings, was arrested multiple times throughout the proceedings, and

       continued a relationship with Stepfather, who committed domestic violence

       against Mother in front of Children, including an incident days before the fact-

       Court of Appeals of Indiana | Memorandum Decision 25A04-1504-JT-140 | October 22, 2015   Page 12 of 13
       finding hearing. Mother’s arguments are invitations for us to reweigh the

       evidence, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate

       court cannot reweigh evidence).


                                                 Conclusion
[21]   Any error in the admission of Mother’s counseling records contained in Exhibit

       6 was harmless because DCS presented sufficient independent evidence to

       support the termination of Mother’s parental rights to Children. The trial court

       did not abuse its discretion when it overruled objections regarding DCS’s

       questions to Mother because the questions were permitted under the Indiana

       Rules of Evidence. Finally, DCS presented sufficient evidence that termination

       of Mother’s parental rights was in the best interests of Children. Accordingly,

       we affirm.


[22]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 25A04-1504-JT-140 | October 22, 2015   Page 13 of 13
