                                                                            FILED
                                                                        Dec 10 2019, 9:55 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Steven Knecht                                             Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C.                                Attorney General of Indiana
Lafayette, Indiana                                        Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Involuntary                                     December 10, 2019
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of:                                          19A-JT-1211
                                                          Appeal from the Tippecanoe
K.L. and K.J.L. (Minor Children),                         Superior Court
                                                          The Honorable Faith Graham,
and                                                       Judge
B.L. (Mother)                                             Trial Court Cause Nos.
Appellant-Respondent,                                     79D03-1802-JT-25
                                                          79D03-1802-JT-26
        v.

Indiana Department of Child
Services,
Appellee-Petitioner,



Robb, Judge.



Court of Appeals of Indiana | Opinion 19A-JT-1211 | December 10, 2019                           Page 1 of 14
                                  Case Summary and Issue
[1]   The Indiana Department of Child Services (“DCS”) filed petitions to terminate

      the parental rights of B.L. (“Mother”) to two of her children, Ko. and Ki.1 One

      witness testified on the first day of the termination hearing and then the hearing

      was continued. Prior to any witnesses taking the stand on the second day of the

      termination hearing, Mother made a motion for separation of witnesses. The

      juvenile court denied the motion as untimely and the remaining witnesses

      testified in the presence of each other. The juvenile court ultimately issued an

      order terminating Mother’s parental rights to both children. Mother now

      appeals, raising the sole issue of whether she is entitled to a new trial because

      the juvenile court erred in denying her motion for separation of witnesses. The

      State concedes the juvenile court erred and further concedes prejudice is

      presumed in such situation, but argues the error was harmless. Concluding

      there is overwhelming evidence supporting the juvenile court’s order

      terminating Mother’s parental rights to Ko. and Ki. such that Mother’s

      substantial rights were not affected by the juvenile court’s error, we affirm.




      1
       The official designation of this case is In re the Involuntary Termination of the Parent-Child Relationship of
      K.L. and K.J.L and Mother. We have referred to K.L. as Ko. and to K.J.L. as Ki. in this opinion.

      Court of Appeals of Indiana | Opinion 19A-JT-1211 | December 10, 2019                             Page 2 of 14
                            Facts and Procedural History
[2]   Ko. was born in November 2011 and Ki. was born in April 2013. No legal

      father has been established for either child.2 Mother also has a third child, H.,

      who was born in 2016 and is not subject to these proceedings.


[3]   Mother has been diagnosed with and prescribed medication for bipolar

      disorder. She also has a history of using illegal substances. In mid- to late-

      2013, Mother became overwhelmed caring for Ko. and Ki. and asked her sister,

      Natasha Foster, to care for them. For approximately nine months after placing

      her children with Foster, Mother did not have any contact with them. Ki. has

      continued to reside with Foster since 2013. In late 2014, however, Foster also

      became overwhelmed caring for her own two children plus Mother’s two

      children, and Kayla and Derrick Mitchell took over the care of Ko. Mother

      and Foster had known Kayla since childhood. In 2016, the Mitchells filed a

      petition to establish guardianship over Ko. but the guardianship proceedings

      were postponed when these proceedings began.


[4]   On October 29, 2016, DCS received a report that Mother had attempted to

      commit suicide by overdosing on heroin while H. was in her care. Ko. and Ki.

      were legally removed from Mother’s care on November 1, 2016, but Ki.

      remained with Foster in relative placement and Ko. with the Mitchells in




      2
       The petition for termination with respect to Ki. named Mother and an “Unknown Alleged Father” as
      parents. Appellant’s Appendix, Volume II at 15. The petition with respect to Ko. named Mother, L.G. as
      Alleged Father, and “Unknown Alleged Father” as parents. Id. at 19.

      Court of Appeals of Indiana | Opinion 19A-JT-1211 | December 10, 2019                        Page 3 of 14
      kinship placement. The children were adjudicated Children in Need of Services

      (“CHINS”) in January 2017.3


[5]   From November 2016 to July 2017, Mother had four supervised visits and two

      therapeutic visits with the children. The supervised visits occurred before

      Mother was incarcerated in January 2017; thereafter, visits were suspended

      while Mother was incarcerated and then in rehab. When Mother was in a

      position to resume visitation, Ko. and Ki. exhibited anxiety about the

      possibility of returning to Mother’s care and expressed that they wanted to stay

      where they were. They had two therapeutic visits in July 2017, but Ki. refused

      to attend the third scheduled visit. Mother cancelled the next scheduled visit

      and then declined to schedule any further visits because she did not trust the

      visitation supervisor. Mother’s last contact with the children was in July of

      2017.


[6]   When DCS became involved with the family in late 2016, Mother had recently

      begun participating in services with the Assertive Community Treatment

      (“ACT”) Team at Wabash Valley Alliance, which is “an intensive outpatient

      treatment program provided to people with serious mental health issues [and]

      some co-occurring disorder like addiction.” Transcript, Volume 2 at 38-39.

      DCS recommended that Mother continue that treatment and submit to random

      drug screens. Mother received case management services, individual therapy,




      3
        H. is also subject to a CHINS proceeding, but his case has proceeded on a different track due to differences
      in the relationships Mother has with Ki. and Ko. and with H.

      Court of Appeals of Indiana | Opinion 19A-JT-1211 | December 10, 2019                             Page 4 of 14
      and medication management through the ACT Team. However, Mother was

      “not really engaged in treatment.” Id. at 44. She did not regularly attend

      individual therapy and did not work with her case manager. She was also not

      compliant with requests for drug screens; between January 2017 and January

      2018, Mother was a no show for screens twenty-two times and submitted

      several dilute screens.4 Also throughout the proceedings, Mother was not

      regularly taking medication prescribed to address her bipolar disorder and

      anxiety and did not have her own housing or stable employment.


[7]   On February 14, 2018, DCS filed petitions to terminate Mother’s parental rights

      to Ko. and Ki. The termination fact-finding hearing was scheduled to begin on

      May 4. On that date, concerns over service of the termination petitions on the

      children’s fathers prompted the court to set the hearing over until May 9. On

      May 9, the juvenile court granted DCS’s motion to dismiss the termination

      petitions as to the fathers and, as Mother had failed to appear, agreed to initiate

      the termination hearing for Mother, allow DCS to “put on enough evidence to

      secure venue and jurisdiction[,]” and continue the matter. Id. at 19.5 Sally

      Messmer, a case manager with the Tippecanoe County office of DCS, testified

      that she was familiar with the children, both of whom were under the age of




      4
       The drug screens Mother did take were almost always positive because her prescribed medications included
      controlled substances. Mother also tested positive for opiates on two occasions in November 2016,
      methamphetamine on one occasion in January 2017, and alcohol on two occasions in March 2017.
      5
        On May 4, the juvenile court had expressed concern that the termination hearing needed to begin within
      ninety days of the filing of the petition, and as the petitions were filed on February 14, 2018, time was
      running short.

      Court of Appeals of Indiana | Opinion 19A-JT-1211 | December 10, 2019                           Page 5 of 14
       eighteen; she was familiar with the underlying CHINS case that was filed in

       Tippecanoe County in October of 2016; and the permanency plan in the

       CHINS case had changed from reunification to adoption. Id. at 20-22.

       Messmer did not testify to any details of the case.


[8]    Also in May, Mother admitted to her case manager that she had used

       methamphetamine. Mother lost her housing and stayed “quite a few different

       places” after that. Id. at 174. And finally, the ACT Team discharged Mother

       due to her lack of engagement and the fact that there was not “any major

       progress made in her treatment.” Id. at 47.


[9]    When the parties returned to court to continue the termination hearing in

       August, Mother made a motion for separation of witnesses. The juvenile court

       denied her motion because her “time to move for separation of witnesses ha[d]

       passed.” Id. at 31. DCS then called Nicholas DiCarlo, director of the ACT

       Team; Angela Stone, who provided family therapy/therapeutic visitation

       services; and Rachael Queen and Messmer, successive case managers for the

       family, as witnesses. Dorothy Rausch, the children’s court appointed special

       advocate (“CASA”) testified on her own behalf, and Mother called Foster as a

       witness and then testified herself.


[10]   Testimony at the hearing showed that to DCS’s knowledge, Mother had not

       participated in any further case management, therapy, or medication

       management services after her discharge from the ACT Team in May. Mother

       stated that she needed to get back on her medication and admitted she would


       Court of Appeals of Indiana | Opinion 19A-JT-1211 | December 10, 2019   Page 6 of 14
       test positive for heroin if tested that day, although she was “not currently using”

       because she had last used two days ago. Id. at 176. Mother was unemployed –

       she “was supposed to start at the Hampton,” but she did not go because she did

       not have transportation. Id. at 175. As for where she was staying, Mother

       stated, “I don’t even know where I am going after I leave the courtroom.” Id.

       at 174. Finally, when asked if she was “in a position right now to be a caregiver

       for the girls[,]” Mother answered no. Id. at 175.


[11]   Queen testified that termination of Mother’s parental rights and adoption of the

       children by their respective placements was in the children’s best interests

       because it “might not be possible for [Mother] to be a functional parent of these

       children” given Mother’s intermittent positive drug screens and lack of

       consistent pay and housing of her own. Id. at 120. Although when Queen left

       the case in early 2018, she felt they were “on track” to remedy the conditions

       that led to the children’s removal, she believed Mother as the sole caregiver to

       the children would pose a risk to their well-being:


               It became apparent that the relationship with [Mother] as their
               sole caregiver was irreconcilable. There was no way to shift that
               paradigm of who the girls’ parents were. And that there just
               wasn’t the stability and success in the relationship with the
               children and [Mother] that we were looking for.


       Id. at 121, 123. Messmer, who took over as family case manager in February

       2018 after Queen left the case, testified that although Mother had “periods of

       progress[,]” the progress was unsustainable because of the overall lack of

       consistency. Id. at 136. Mother’s mental health and lack of services addressing
       Court of Appeals of Indiana | Opinion 19A-JT-1211 | December 10, 2019       Page 7 of 14
       her mental health were also concerns. Id. at 141. Messmer recommended that

       termination would be in the children’s best interests, noting that Ki. and Ko.

       were “healthy and happy little girls” in their current placements and “never

       mention their Mother.” Id. at 132. The CASA also testified termination was in

       the children’s best interests.


[12]   Ultimately, the juvenile court entered orders concluding there is a reasonable

       probability the conditions that resulted in removal of the children would not be

       remedied; continuation of the parent-child relationships poses a threat to the

       well-being of the children because they need stability and a parent with whom

       they can form a permanent and lasting bond; DCS’s plan of adoption is a

       satisfactory plan for the children; and termination is in the children’s best

       interests: “Further efforts to reunify would have continued negative effects on

       the children.” Appealed Order at 7.



                                  Discussion and Decision
                        I. Motion for Separation of Witnesses
[13]   Mother first contends the juvenile court erred in denying her motion for

       separation of witnesses. Prior to January 1, 1994, the decision to grant a

       motion for separation of witnesses was within the trial court’s discretion.

       Hernandez v. State, 716 N.E.2d 948, 950 (Ind. 1999). On January 1, 1994,

       however, the Indiana Rules of Evidence became effective and altered the

       common law rule. Id. Indiana Rule of Evidence 615 provides:


       Court of Appeals of Indiana | Opinion 19A-JT-1211 | December 10, 2019     Page 8 of 14
               At a party’s request, the court must order witnesses excluded so
               that they cannot hear other witnesses’ testimony. . . . But this
               rule does not authorize excluding:


               (a) a party who is a natural person;


               (b) an officer or employee of a party that is not a natural person,
               after being designated as the party’s representative by its attorney;
               or


               (c) a person whose presence a party shows to be essential to
               presenting the party’s claim or defense.


       (Emphasis added.) Thus, the trial court is now required to grant motions for

       separation of witnesses. Id.


[14]   The juvenile court declined to grant Mother’s motion because “your time to do

       that has passed.” Tr., Vol. 2 at 31. The purpose of Rule 615 is that “witnesses

       should be insulated from the testimony of other witnesses.” Long v. State, 743

       N.E.2d 253, 256 (Ind. 2001); see also Smiley v. State, 649 N.E.2d 697, 699 (Ind.

       Ct. App. 1995) (noting a separation of witnesses order is meant to keep the

       testimony of one witness from influencing the testimony of another), trans.

       denied. To effectively serve that purpose, a motion for separation of witnesses

       should ideally be made before any witness testifies. Williams v. State, 924

       N.E.2d 121, 125 (Ind. Ct. App. 2009), trans. denied. However, Rule 615 does

       not address when such a motion must be made. Therefore, a motion made

       after testimony has begun “may be permissible as long as basic notions of

       fundamental fairness are not offended.” Anderson v. State, 743 N.E.2d 1273,

       Court of Appeals of Indiana | Opinion 19A-JT-1211 | December 10, 2019      Page 9 of 14
       1277 (Ind. Ct. App. 2001). Here, one witness testified on the first day of the

       termination hearing and only “put on enough evidence to secure venue and

       jurisdiction[.]” Tr., Vol. 2 at 19. Mother requested a separation of witnesses

       order at the outset of the second day of the termination hearing before any other

       witnesses had been called. Accordingly, the timing of Mother’s motion did not

       affect the fundamental fairness of the proceeding and the juvenile court should

       have granted the motion and ordered separation of the witnesses. See Anderson,

       743 N.E.2d at 1277 (holding defendant’s motion for separation of witnesses,

       made shortly after the State began questioning its first witness, should have

       been granted because the witness had only begun to testify about general

       background information); see also Brief of Appellee at 15 (DCS conceding the

       juvenile court erred in denying Mother’s motion “because there is no time

       requirement for requesting the separation”).


                          II. Prejudice from Denial of Motion
[15]   Mother requests we reverse the juvenile court’s termination order and remand

       for a new trial because of the error. However, an error with respect to the

       separation of witnesses does not necessarily mandate reversal. The parties

       agree that prejudice is presumed when Rule 615 is violated but that the

       presumption can be overcome if the party supporting the result can show there

       was no prejudice. See Brief of Appellant at 18, Br. of Appellee at 14; see also

       Williams, 924 N.E.2d at 126. The State, although acknowledging the juvenile

       court erred, asserts that the error was harmless and therefore, not grounds for

       reversal. Error in failing to separate witnesses is harmless error if the opposing

       Court of Appeals of Indiana | Opinion 19A-JT-1211 | December 10, 2019    Page 10 of 14
       party presents overwhelming evidence supporting the judgment. See Ray v.

       State, 838 N.E.2d 480, 488-89 (Ind. Ct. App. 2005), trans. denied; see also

       Anderson, 743 N.E.2d at 1277 (noting that denial of a motion to separate

       witnesses is harmless if, in light of all the evidence in the case, the error is

       sufficiently minor so as to not affect the defendant’s substantial rights).


[16]   It is undisputed that the witnesses were all present for each other’s testimony at

       the termination hearing. Cf. Anderson, 743 N.E.2d at 1277 (holding the trial

       court’s erroneous denial of motion for separation of witnesses did not affect

       defendant’s substantial rights because there was no evidence that any witnesses

       were in the courtroom for the testimony of other witnesses). The juvenile court

       named the people in the courtroom at the beginning of the hearing, see Tr., Vol.

       2 at 28-29, and Mother points out several examples of a witness referring to an

       earlier witness’s testimony. For instance, when Messmer was asked why she

       felt it was appropriate to proceed with termination in this case at the same time

       she was recommending a trial home visit in Mother’s case with H., Messer

       answered, “Same as what Rachael Queen had stated. Mother was in two (2)

       different places regarding her relationships with her children.” Tr., Vol. 2 at

       133-34. In addition, DCS referenced earlier witnesses’ testimony in its

       questioning. See, e.g., id. at 101 (DCS asking Queen, “So you heard [Stone]

       testify here today?”). Mother posits that “[i]t is not at all certain that the effect

       of this error on the court’s decision was sufficiently minor so as not to affect

       Mother’s substantial rights.” Br. of Appellant at 21. We disagree.




       Court of Appeals of Indiana | Opinion 19A-JT-1211 | December 10, 2019       Page 11 of 14
[17]   First, the impact of the error was minor. As the State points out, Mother, as a

       party; Messmer and Queen, as DCS representatives; and Rausch, as the CASA,

       would have been permitted to stay in the courtroom as a party’s representative

       or an essential witness. See Evid. R. 615; see also Stafford v. State, 736 N.E.2d

       326, 331 (Ind. Ct. App. 2000) (noting in a criminal case that the State is

       permitted to designate only one investigating officer as its party representative

       but an additional investigating officer may remain if the trial court finds he or

       she is an essential witness in the case), trans. denied. DiCarlo was the first

       witness and thus heard no other witnesses’ testimony before he testified. That

       leaves Stone and Foster as the only witnesses impacted by the juvenile court’s

       erroneous ruling. Stone, as the second witness, heard only DiCarlo’s testimony

       before her own. DiCarlo’s testimony was directed solely to Mother’s

       participation in the ACT Team which involved individual therapy and

       medication management. Stone’s testimony addressed only her counseling of

       the children and her supervision of Mother’s interactions with the children

       during the brief time they engaged in therapeutic visitation. There is little

       chance that DiCarlo’s testimony influenced Stone’s testimony in any way

       because they were involved in entirely different aspects of the case. Foster, who

       was the sixth witness and was called by Mother, provided information about

       how the children came to be in her care and her relationship and interactions

       with Mother. All of her testimony was based on her personal knowledge of

       events occurring in 2013 and 2014. Because Foster testified to events of which

       she had personal knowledge and that occurred before DCS became involved, it

       is unlikely that her testimony was influenced by DCS’s witnesses’ testimony
       Court of Appeals of Indiana | Opinion 19A-JT-1211 | December 10, 2019     Page 12 of 14
       about events occurring after 2016. The juvenile court referenced information

       relayed by Foster’s testimony in two (out of thirty-one) findings of fact,

       providing only background on events that occurred before the CHINS case was

       opened.


[18]   Second, there is overwhelming evidence supporting the juvenile court’s

       judgment independent of Stone and Foster’s testimony. In order to terminate

       parental rights, the State must show by clear and convincing evidence that

       either there is a reasonable probability that the conditions that resulted in the

       children’s removal will not be remedied or there is a reasonable probability that

       continuation of the parent-child relationship poses a threat to the children’s

       well-being; termination is in the children’s best interests; and there is a

       satisfactory plan for the children’s care and treatment after termination. Ind.

       Code § 31-35-2-4(b)(2) (elements of proof); Ind. Code § 31-37-14-2 (burden of

       proof). Mother voluntarily placed her children with a relative and was not in

       contact with them for the next nine months. When DCS became involved and

       Mother was offered the opportunity to resume contact with her children, she

       voluntarily declined to participate after seven months and had not seen her

       children in over a year by the time the termination hearing ended. Mother has

       acknowledged mental health issues that she does not consistently treat, has no

       current employment or permanent place to stay, and has admitted that she was

       not in a position to be a caretaker for her children. Messmer, Queen, and

       Rausch all independently and based on their own experiences with Mother and

       the children testified that termination was in the children’s best interests. As the


       Court of Appeals of Indiana | Opinion 19A-JT-1211 | December 10, 2019         Page 13 of 14
       children had already been out of Mother’s care for three years by the time DCS

       became involved in this case, and as Mother’s participation in services during

       the CHINS proceedings was minimal, we conclude the State has shown by

       overwhelming evidence that the juvenile court’s error in denying her motion for

       separation of witnesses was harmless because in light of all the evidence, it did

       not affect her substantial rights.



                                                Conclusion
[19]   The juvenile court erred in denying Mother’s motion for separation of

       witnesses, but the State has shown that the error did not result in any prejudice

       to Mother because of the overwhelming evidence supporting the juvenile

       court’s judgment. Accordingly, the termination of Mother’s parental rights to

       Ko. and Ki. is affirmed.


[20]   Affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 19A-JT-1211 | December 10, 2019   Page 14 of 14
