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Pursuant to Ind.Appellate Rule 65(D), 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: MICHAEL E. CAUDILL Indianapolis, Indiana

ATTORNEYS FOR APPELLEES: TOBY GILL Marion County Dept. of Child Services Indianapolis, Indiana Guardian Ad Litem: CYNTHIA DEAN Child Advocates, Inc. Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE INVOLUNTARY TERMINATION OF THE PARENT-CHILD RELATIONSHIP OF I.B. and I.D., Minor Children, and LAKEISHA DILLARD, Mother and MICHAEL BROWN, Alleged Father of I.B., and DELANEY WRIGHT, Alleged Father of I.D., ) ) ) ) ) ) ) LAKEISHA DILLARD, ) ) Appellant-Respondent, ) ) vs. ) ) MARION COUNTY DEPARTMENT OF CHILD ) SERVICES, ) ) Appellee-Petitioner, and ) ) CHILD ADVOCATES, INC., ) ) Appellee-Guardian Ad Litem. )

No. 49A04-0603-JV-143

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Charles Deiter, Judge Cause No. 49D08-0306-JT-740

January 25, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

Lakeisha Dillard appeals the termination of her parental rights to I.B. and I.D. She raises three issues, which we reorder and restate as: 1. Whether the process leading to I.D.'s removal from Dillard's care violated

our federal and state constitutions; 2. 3. Whether the court abused its discretion in admitting evidence; and Whether the evidence supports the termination of Dillard's rights.

Because Dillard did not allege prior to this appeal that the process leading to I.D. being declared a Child in Need of Services ("CHINS") was unconstitutional, she has waived such argument on appeal. Any error in the admission of the challenged evidence was harmless. Because the evidence supports the termination of Dillard's rights, we affirm. FACTS AND PROCEDURAL HISTORY On July 15, 2002, Indianapolis Police Officer Erroll Malone was called to the house where Dillard resided with her cousin. Dillard was sitting on the porch holding her son, I.B., and she was crying. Dillard wanted to go to court to support her boyfriend, but her cousin was refusing to care for I.B. Dillard told Officer Malone she was "going down the street to find someone to give her baby to." (Tr. at 18.) Because of that comment and
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the difficulty Dillard was having holding I.B., Officer Malone called Marion County Child Protective Services ("CPS"). I.B. was removed from Dillard's care that evening. Three days later, the Marion County Department of Child Services ("DCS") filed a petition alleging I.B. was a CHINS because: The child's mother and sole, [sic] legal custodian, Lakiesha Dillard, has been endangering her child by her irrational behavior. Ms. Dillard does have a disability for which she receives SSI payments. Mother acted as if she would hurt the child (age one-month) or give the child away to a stranger on the street. Mother admits she needs help caring for the child. Mother is currently homeless and is in a shelter. (Ex. at 2.) The court found probable cause at the initial hearing to support that petition. On October 15, 2002, the court accepted the parties' agreed entry, in which Dillard agreed I.B. was a CHINS and that made I.B. a ward of the State; placed him with Dillard's great-aunt Dorothy Davis; and ordered services for Dillard. (See id. at 19-25.) In November of 2002, Dillard underwent a psychological evaluation, which determined she suffered from dysthymic disorder 1 and would benefit from medication. However, Dillard refused treatment and continues to refuse to take medication or receive mental health counseling. On April 28, 2003, the DCS filed a petition to terminate Dillard's rights to I.B. because Dillard's "behaviors did not change; they were erratic in addition to that home based counseling was having some major concerns with her parenting abilities." (Tr. at 176.) In addition, Dillard was not benefiting from home-based services and was refusing

1

Dysthymia is a "mood disorder characterized by chronic mild depression." The American Heritage Science Dictionary available at http://dictionary.reference.com/browse/dysthymia (last accessed December 18, 2006).

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to follow the psychologist's recommendations. After the petition was filed, Dillard became less willing to cooperate with services. In July and August, she missed a number of visitations with I.B. On February 28, 2004, Dillard signed consents for I.B. to be adopted by Davis, in whose care he had been while a ward of the State. 2 On April 4, 2004, Dillard gave birth to I.D. Soon after she took I.D. home from the hospital, Dillard's mother convinced Dillard to take I.D. to stay with Dillard's aunt, Shirley Bluett. DCS received a phone call that I.D. was with Bluett. DCS took custody of I.D. and, on May 7, 2004, filed a petition alleging I.D. was a CHINS. (Ex. at 26-28.) The court held a hearing that day, found probable cause to support the allegation, made I.D. a ward of the State, removed him from Bluett's care, and placed him in foster care. (Id. at 29-32.) After a fact-finding hearing on September 13, 2004, the court found I.D. was a CHINS and ordered supervised visitation for Dillard. (Id. at 41-42.) At a disposition hearing on November 16, 2004, the court entered a participation decree setting out the behaviors expected of and services to be completed by Dillard. In December 2004, I.B. was removed from Davis' care after it was determined she had been abusing I.B. Because Dillard had consented to adoption by only Davis, the consent she had given for adoption, and thereby her consent to the termination of her parental rights, became invalid. The DCS reinstated the petition to terminate Dillard's parental rights to I.B. On July 27, 2005, the DCS moved to add I.D. to the pending petition to terminate
2

I.B.'s father consented to the termination of his rights so that I.B. could be adopted.

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Dillard's rights to I.B. Following a hearing on October 21, 2005, the court entered an order including the following: MCDCS submits reports and attachments and report [sic] that [Dillard] is not compliant with services and homebased counselor is fearful of her life as to [Dillard]. [Dillard] reports she will not take medication as she had a[n] adverse reaction to medication. . . . GAL, visitation agency, homebased counselor and MCDCS are all in agreement for reduced visitation to one hour per week as to Mother and the Court Grants same. (Id. at 52.) Then, on November 14, 2005, the court decreased Dillard's visitation with I.D. to one time per month. (Id. at 55.) After fact-finding hearings on January 26, 2006, and February 8, 2006, the court entered an order terminating Dillard's parental rights to I.B. and I.D. The court did not enter specific findings; however, the court's conclusions included "a reasonable probability that the conditions that resulted in the children's removal will not be remedied;" "a reasonable probability that the reasons for placement of the children outside the home of the parents will not be remedied;" "continuation of the parent-child relationship poses a threat to the well being of the children;" and "[t]ermination is in the best interests of the children." (App. at 9-10.) DISCUSSION AND DECISION The Fourteenth Amendment to the United States Constitution gives parents a right to establish a home and raise their children. In re D.G., 702 N.E.2d 777, 780 (Ind. Ct. App. 1998). However, a parent's right to her children is balanced against the State's limited authority to interfere for the protection of the children. Id.

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1.

Constitutional Argument

Dillard asserts the DCS has a policy to automatically remove subsequently born children from any parent who already has a child that is a ward of the DCS. She claims such a policy violates her federal and state constitutional rights to raise her children. Dillard's argument challenges the constitutionality of the process by which I.D. was declared a CHINS. Such arguments should be made during the CHINS proceedings and in an appeal therefrom. However, they must be made in the termination proceedings. McBride v. Monroe County Office of Family & Children, 798 N.E.2d 185, 195 n.4 (Ind. Ct. App. 2003) ("To preserve her constitutional claim for appeal, McBride could and should have raised her due process argument during the termination proceedings."). Dillard's attempt to raise this argument on appeal following the termination of her parental rights is untimely and, thus, has been waived. See id. at 195. Waiver notwithstanding, we disagree with Dillard's characterization of the testimony on which her argument is based. Dillard quotes the following testimony of Sharon Profeta, a family case manager from the DCS: Q: Is that typical policy of your Department of Child Services to basically "flag" any subsequent children that are born to parents of children who are already a Ward of the State? Yes. And is it typical for, is it Department of Child Services to file a CHINS based solely upon a subsequent birth and the prior wardship of the previous child? Yes. In this case? Yes. So basically it was the intent of the Department of Child Services to file the CHINS Petition as soon as [I.D.] was born is that correct? Yes.
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A: Q:

A: Q: A: Q: A:

(Tr. at 208-09.) In response, the State cites a portion of Profeta's testimony that Dillard omitted: A: Well what happens is if we have a mother who has children who are in our care that are also Wards not in her care, not in her custody, when there's a birth like an after born; we usually send a letter to the Social Worker at the hospital where she is going to give birth stating that we need to be notified when the baby is born. And why is that? Because if we have a mother who has a child that is a Ward and we're saying that she cannot take care of that child then we have to look and see if she's able to take care of the new baby. So chances are we'll be removing the after born also.

Q: A:

(Id. at 208.) As explained in Profeta's last two answers, the DCS does not have a policy of "automatic" removal of children whose parents already have one child who is a ward of the State. Rather, the DCS has a policy of remaining knowledgeable about

pregnancies in women who already have a child or children who are wards of the State, so the DCS can "look and see if she's able to take care of the new baby" when it is born. (Id.) Dillard has not demonstrated the DCS procedure "does not take into account the particular circumstances of the parent and child at the time." (Appellant's Br. at 13.) Accordingly, her argument fails. 3 2. Admission of Evidence

Dillard asserts the court abused its discretion when it admitted "potential impeachment evidence" when the witness to be impeached had not yet testified and, ultimately, never did testify. The admission or exclusion of evidence is left to the discretion of the trial court, and we may reverse only for an abuse of that discretion. In re A.H., 832 N.E.2d 563, 567 (Ind. Ct. App. 2005). An abuse of discretion occurs when the
3

Because Dillard did not demonstrate the DCS has a policy of "automatic removal," we need not determine whether such a policy would violate a parent's constitutional right to raise his or her children.

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decision was against the logic and effect of the facts and circumstances before the court. Id. When Lonya Thompson, a home-based therapist, was on the stand, the State asked her whether Dillard's mother, Patricia Bannion, ever talked to Thompson directly about Dillard's ability to parent I.D. alone. As Thompson began to answer the question, Dillard objected because Thompson's response would be hearsay. The State argued: Yeah, sure. Judge, yeah I did speak a little bit with [Dillard's counsel] about this. I would ask that the Court would introduce as potential impeachment evidence. We anticipate his, this witness [Patricia Bannion, Dillard's mother] testifying that [Dillard]'s a good parent and she's able, she should be able to appropriate, she should appropriately parent these children. So this is really going to be conditionally relevant upon [Dillard's counsel] calling [Bannion], but in the Court's interest of time and judicial economy I would like to be able to ask each of the next, these first four witnesses about conversations they may have had with [Bannion] about her statements as to [Dillard]'s ability to parent. So it goes to impeachment and not hearsay and it will become relevant after [Bannion] takes the stand. (Tr. at 54.) The court determined "those questions about . . . Patricia Bannion opinions about Ms. Dillard. Okay, so we'll allow them to be asked and answered but not for the truth of any the [sic] assertions, just for the fact that she's expressed those opinions. So go ahead." (Id. at 54-55) (emphasis added). Thompson then testified: [Bannion] felt like [Dillard] could not take care [of] [I.D.] alone. She didn't feel like she was capable of even being there for [I.D.] because according to her Mom, when [Dillard] gets her mind set she'll just up and leave and she didn't feel like [Dillard] feel like [Dillard] [sic] would stay there for [I.D.]. (Id. at 55.) The trial court understood the statements were being offered as potential impeachment testimony for a possible defense witness.
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The court admitted the

statements only as impeachment evidence and "not for the truth" of what was said. (Id.) While we may have had concern about improper influence if this evidence had been presented to a jury, we presume the court is capable of following its own evidentiary rulings. See Shanks v. State, 640 N.E.2d 734, 736 (Ind. Ct. App. 1994) (In trial without a jury, "it may be presumed that the judge will disregard inadmissible and irrelevant evidence in determining" guilt or innocence; thus the harm "arising from evidentiary error is lessened if not totally annulled when the trial is by the court sitting without a jury.") (internal citation and quotations omitted). Thus we presume the court did not consider that hearsay statement when it determined whether the evidence was sufficient to support the termination of Dillard's rights. 4 Finally, in light of the weight of the evidence supporting termination of Dillard's rights, even if error had occurred, Dillard would not have been able to demonstrate her substantial rights had been prejudiced. See Ind. Appellate Rule 66(A) ("No error or defect in any ruling or order . . . is ground for granting relief or reversal on appeal where
Dillard asserts the same error occurred during the testimony of Desiree Tilton, a home-based case manager with St. Vincent New Hope, who took the stand as a State's witness. At the end of her testimony, the following dialogue occurred: [Court]: Any redirect? [State]: I have just a couple of questions related to the potential impeachment evidence, Judge, if I could. [Court]: Okay, so you're going to ask questions about statements made, what was that lady's name again? [State]: Patricia Bannion. [Court]: By Patricia Bannion and you want to ask them solely to show what she uttered and not for the truth of it, like we did with the previous witness? [State]: Yes Judge. And it will only become relevant once she testifies. [Court]: Okay. [Dillard]: And Judge, just show my objection for any reason it's used for the truth of the matter for the limited purposes of impeachment and not then I have no objection. [Court]: Okay, over Ms. Dillard's objection I'll allow such questions; go ahead. (Tr. at 83-84.) However, Tilton testified Bannion had not made any statements to her about Dillard's parenting abilities. Accordingly, no allegedly prejudicial hearsay was admitted during Tilton's testimony.
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its probable impact in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties."). 3. Sufficiency of Evidence

When a parent appeals the termination of her parental rights, we will not reverse the trial court's judgment unless is it clearly erroneous. M.H.C. v. Hill, 750 N.E.2d 872, 875 (Ind. Ct. App. 2001). When determining whether the evidence supports the findings and judgment, we may not reweigh the evidence or reassess the credibility of the witnesses. Id. We will set aside the trial court's findings only if they are clearly erroneous; that is, if the record lacks any evidence or reasonable inferences to support them. Id. We consider only the evidence and reasonable inferences therefrom that support the judgment. In re D.G., 702 N.E.2d at 780. A trial court may not terminate a parent's rights unless the State demonstrates by clear and convincing evidence "there is a reasonable probability that: (i) the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied; or (ii) the continuation of the parent-child relationship poses a threat to the well-being of the child." 5 Ind. Code

Download Invol. Term. of Parent-Child Rel. of I.B. and I.D., Lakeisha Dillard, Michael Br

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