Preview:

FOR PUBLICATION
ATTORNEY FOR APPELLANT: KATHERINE A. CORNELIUS Indianapolis, Indiana ATTORNEY FOR APPELLEE: M. BRUCE SCOTT Tourkow, Crell, Rosenblatt & Johnson Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE INVOLUNTARY TERMINATION OF THE PARENT CHILD RELATIONSHIP OF A.H., L.H., C.H., and J.H., MINOR CHILDREN and THEIR MOTHER ANNETTE JOHNSTON and THEIR FATHER, JAY HANEY, JAY HANEY, Appellant-Respondent, vs. ADAMS COUNTY OFFICE OF FAMILY AND CHILDREN, Appellee-Petitioner. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 01A05-0501-JV-33

APPEAL FROM THE ADAMS CIRCUIT COURT The Honorable Frederick A. Schurger, Judge Cause No. 01C01-0306-JT-03;01C01-0306-JT-04;01C01-0306-JT-06

August 10, 2005 OPINION- FOR PUBLICATION

BAKER, Judge

Appellant-respondent Jay Haney appeals from the trial court's order terminating his parental rights as to his minor children, AH, LH, CH, and JH. Specifically, Haney contends that the trial court erroneously admitted a psychiatric evaluation into evidence regarding Haney's eligibility for social security disability, and that the appellee-petitioner Adams County Office of Family and Children (OFC) failed to establish that his parenting contributed to his children's problems or prohibited reunification with him. Concluding that the admission into evidence of the psychological evaluation did not amount to reversible error, and that the evidence was sufficient to support the order terminating Haney's parental rights over his children, we affirm the judgment of the trial court. FACTS Haney and Annette Johnston 1 were married and had four children. When the termination proceedings commenced in 2001, JH and CH--who are twins--were seven years old, AH was five, and LH was three. On April 13, 2001, all four of the children were detained by the OFC after receiving a complaint that Johnston was failing to supervise the children. During this time, Haney was in prison, serving an eighteen-month sentence for forgery. When the children were removed, it was determined that there was an open investigation in another county regarding the family. In particular, the Wells County OFC had been involved with the family from August 1997 through December 1999. That office

2

had received reports regarding disciplinary problems and lack of supervision over the children. Also, the children had been removed from the home after a report that one of them had set a fire in the residence. The children were returned to Johnston several days later, but she ultimately left the two oldest children at the OFC, claiming that she could not "handle them." Tr. p. 781. This occurred three days before Haney was to be released from prison. As a result of Johnston's actions, the oldest boys were placed in licensed foster care, where they continue to reside. All four of the children were adjudged to be Children In Need of Services (CHINS) on December 21, 2001. The trial court entered a dispositional decree on September 9, 2002, whereupon both Johnston and Haney were ordered to participate in various services and counseling programs offered by the OFC. On May 27, 2003, the two youngest children--who were still in Johnston's custody--were detained by the OFC as a result of Johnston's physical abuse of AH. Johnston ultimately pleaded guilty to battery for this offense. Both AH and LH were then placed in foster care with the other children. It was revealed that Haney had attempted to undergo some counseling while in prison, but he could not continue in light of anger control issues. Haney had been diagnosed with a number of mental health problems, including intermittent explosive disorder, anti-social personality disorder and avoidant personality disorder. During the pendency of the CHINS proceeding, Haney displayed a complete lack of ability to control his anger during court

1

At some point, Haney and Johnston were married to each other. However, during the pendency of these

3

proceedings and visitations with his children. Haney also became combative and angry with the service providers. It was also determined that even though Haney had the opportunity to obtain adequate housing for the children, he failed to do so. Between the period of time that Haney was released from prison and the time of the termination hearing, he had occupied at least five different residences spanning two different counties. On June 30, 2003, the OFC petitioned for the termination of parental rights with respect to Haney and Johnston and their four children. At the termination hearing, it was revealed that three of the four children were in special education classes at Monmouth Elementary School. The children's special education teacher, Claudia Klingaman, testified at length as to the twins' complete lack of educational and social skills. However, after the older boys had been removed from Johnston's home and placed in foster care, it was determined that every aspect of their intellectual development had improved. A Guardian Ad Litem (GAL) was also involved in the case, and she issued the following report regarding Haney's behavior: I also believe that Jay Haney truly believes that he can control his anger and his reactions to his children. He believes that he can provide what is necessary to adequately parent his children. I disagree with the assessment. Because of his disorders, he will not be able to adequately and safely parent his children. He does not have the ability to benefit from services. He cannot control his behavior well enough to be able to parent very provocative, special needs children. Again, his disorders allow him to believe that he can do what is necessary for his children, when this is not the case. Appellant's App. p. 367. The GAL also issued a report detailing the condition of the children at the times of their various detentions as well as the improvements made while

proceedings, the marriage was dissolved.

4

outside the care of either parent. An OFC case manager testified that it was the agency's plan to have the children adopted, and he detailed the particular steps that would be taken to locate, investigate, and place the children in an appropriate adoptive home. Also at the final hearing, Dee McClurg, a licensed social worker from Park Center, testified about the mental health counseling services that were offered to Haney. McClurg had prepared a psychiatric evaluation of Haney in November 1999, for the purpose of securing social security disability benefits for him. The report detailed Haney's various mental disorders that had been diagnosed, and it included a prognosis that was "guarded due to oppositional and noncompliant attitude and behaviors." OFC Ex. 2. Haney's counsel objected and asserted that the report was inadmissible because Haney had not signed a release of the information contained in the report. Over Haney's objection that he had not waived his right to privacy, the trial court admitted the report into evidence. McClurg went on to testify that Haney failed to keep his appointments, did not comply with the various treatment directives, and did not take his medications. Dr. Anthony Flores, a psychologist who evaluated Haney in September 2002, testified that Haney engaged in threats and intimidation to get his way. Dr. Flores also noted that Haney has a history of drug and alcohol abuse, and that he lacked parenting skills. He further observed that Haney would often express intense unwarranted anger over inconsequential situations. On one occasion, Haney threatened to bomb the OFC, and he threatened the life of one of the case managers. Dr. Flores acknowledged that it would be difficult for anyone with Haney's symptoms and disorders to parent normal children, "not to

5

mention children with special needs." Appellant's App. p. 25. When CH and JH were first placed in foster care, their behavior was described as radical. They exhibited poor personal hygiene and were unable to concentrate at school because they were not sure about what was going to happen to their parents. When AH arrived in foster care, he hit himself, would cause trouble at school by starting fights, screaming at the teachers, and not following the rules. The evidence further showed that both Johnston and Haney missed visitation appointments with the children. However, it was determined that when visitation did occur, the children were angry, hyper and unruly. On the other hand, all of the children showed significant improvement in both social and academic areas after they had been placed in foster care. On November 15, 2004, Haney's parental rights were terminated, and he now appeals. 2 DISCUSSION AND DECISION I. Admission of Psychiatric Report Haney first contends that it was error to admit the psychiatric report McClurg had prepared along with his testimony that pertained to that evaluation. Specifically, Haney argues that the admission of the report and McClurg's testimony was error because he did not sign a release for the admission of the report and, therefore, his right of privacy was violated pursuant to the 1996 Health Insurance Portability and Accountability Act (HIPAA).

2

Johnston is not a party to this appeal.

6

In resolving this issue, we first note that the admission of evidence is left to the sound discretion of the trial court, and we will not reverse that decision except for an abuse of that discretion. Mann v. Russell's Trailer Repair, Inc., 787 N.E.2d 922, 926 (Ind. Ct. App. 2003), trans. denied. An abuse of discretion occurs when the trial court's decision is against the logic and effect of the facts and circumstances before it. HIPAA protects individuals from unwarranted dissemination of medical and mental health records without consent. Pub. Law No. 104-191 (1996). The statute restricts access to medical records without the individual's direct consent. However, exceptions do exist, which include the reporting of child abuse. 42 CFR

Download 08100505jgb.pdf

Indiana Law