                                                                       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




      Court of Appeals of Indiana | Opinion 18A-JT-2200 | May 13, 2019         Page 2 of 15
      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

      Court of Appeals of Indiana | Opinion 18A-JT-2200 | May 13, 2019           Page 3 of 15
       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


       Court of Appeals of Indiana | Opinion 18A-JT-2200 | May 13, 2019            Page 4 of 15
       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.

       Court of Appeals of Indiana | Opinion 18A-JT-2200 | May 13, 2019          Page 8 of 15
               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
       Court of Appeals of Indiana | Opinion 18A-JT-2200 | May 13, 2019         Page 9 of 15
       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.

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