Court of Appeals of Indiana | Memorandum Decision 19A-JT-752 | August 20, 2019 Page 1 of 10

MEMORANDUM DECISION

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

Harold E. Amstutz

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Michael Vo Sherman

Certified Legal Intern

Robert J. Henke

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Termination of the

Parent-Child Relationship of:

H.M. (Minor Child),

and

A.M. (Father),

Appellant-Respondent,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner

August 20, 2019

Court of Appeals Case No.

19A-JT-752

Appeal from the Tippecanoe

Superior Court

The Honorable Bradley K. Mohler, 

Special Judge

Trial Court Cause No.

79D03-1809-JT-125
Court of Appeals of Indiana | Memorandum Decision 19A-JT-752 | August 20, 2019 Page 2 of 10

Baker, Judge.

[1] A.M. (Father) appeals the juvenile court’s order terminating his parent-child 

relationship with H.M. (Child), arguing that the evidence is insufficient to 

support the order and that the juvenile court erred when it improperly admitted 

written reports as hearsay evidence. Finding that the evidence is sufficient and

that the juvenile court committed, at most, only harmless error, we affirm.

Facts

[2] Child was born to B.L. (Mother)1 and Father on February 2, 2016. On 

November 1, 2016, the Department of Child Services (DCS) became involved 

with the family and removed Child from the home due to Mother’s untreated 

mental health problems, substance abuse issues, and a failed attempt at suicide. 

DCS did not place Child with Father because Father could not provide 

documentation proving paternity of the Child. Even after Father established 

paternity, Child remained in foster care. 

[3] On November 2, 2016, DCS filed a petition alleging that Child was a Child in 

Need of Services (CHINS). The juvenile court adjudicated Child to be a 

CHINS on December 29, 2016, and entered a dispositional decree on January 

20, 2017. Under the terms of that dispositional decree, Father was required to

keep in contact with the Family Case Manager (FCM), maintain housing, not

 

1 Child’s mother is not part of this appeal. 
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possess or consume alcohol or illegal substances, submit to random drug 

screens, obtain employment, and follow all recommendations from 

assessments. By February 27, 2018, the juvenile court found that Father had not 

met the objectives of the dispositional decree, noting that Father had failed to 

comply with all required services, attend any visitations with Child or make any 

effort to see Child, or produce clean drug screens. Moreover, Father had been

arrested for possession and use of methamphetamine. Following that hearing, 

“[t]he Court did not authorize parenting time for the Father, noting that the 

Father did not wish to proceed with reunification.” Appellant’s App. Vol. II p. 

20-21. Father never participated with services during the CHINS case and has 

not seen or had contact with Child since December 2016.

[4] On October 18, 2017, Father pleaded guilty to Level 5 felony dealing in 

methamphetamine, Level 5 felony dealing in a narcotic drug, and Level 6 

felony operating a vehicle as an habitual traffic violator. At the time of the 

termination hearing, Father believed that his earliest possible release date from 

the Department of Correction (DOC) was April 19, 2019. Father “completed 

beneficial programs while incarcerated, including Recovery While Incarcerated, 

Mothers Against Meth, Inside Out Dads, and vocational programs.” Id. at 22.

Additionally, Father had a pending theft charge against him, with an initial 

hearing set for April 22, 2019. 

[5] DCS filed a petition for termination of parental rights on September 4, 2018. At 

the January 31, 2019, fact-finding hearing, Father testified that he had

completed various programs while incarcerated and that he had hoped to 
Court of Appeals of Indiana | Memorandum Decision 19A-JT-752 | August 20, 2019 Page 4 of 10

continue treatment services once released from the DOC. He admitted that he 

had refused to participated in DCS services because he was “mad,” id. at 23, 

that he was hostile to DCS and its efforts for rehabilitation and reunification, 

that he had consistently refused to submit to drug screens, that he “wasn’t 

gonna jump through all [of DCS’s] hoops,” tr. vol. II p. 160, and that he had 

not seen Child since Christmas 2016. It was also revealed that Father had no 

prospective employment, housing, or treatment options after his release from 

the DOC. 

[6] FCM Sally Messmer testified at the termination hearing that termination of 

parental rights was in Child’s best interest. Additionally, Court-Appointed 

Special Advocate (CASA) Hilary Laughner, who had not worked on Child’s 

case from the beginning, brought written reports from the original CASA: 

Dottie Rausch. CASA Laughner then testified that based on her personal 

observations, Child was doing well in his current placement with his halfsibling; Child had been removed and separated from both parents for 

approximately twenty-seven months; Child required stability and permanency;

DCS had a permanency plan for Child’s current foster parents to adopt him; 

and termination of parental rights was in Child’s best interests. CASA 

Laughner also submitted CASA Rausch’s original reports, which the juvenile 

court admitted into evidence. On March 31, 2019, the juvenile court entered an 

order granting the termination petition. Father now appeals.
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Discussion and Decision

I. Standard of Review

[7] When reviewing an order on the termination of a parental relationship: 

We do not reweigh the evidence or determine the credibility of 

witnesses, but consider only the evidence that supports the 

judgment and the reasonable inferences to be drawn from the 

evidence. We confine our review to two steps: whether the 

evidence clearly and convincingly supports the findings, and then 

whether the findings clearly and convincingly support the 

judgment. Reviewing whether the evidence “clearly and 

convincingly” supports the findings, or the findings “clearly and 

convincingly” support the judgment, is not a license to reweigh the 

evidence.

In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (internal citations omitted) (some 

internal quotations omitted). We must give “due regard” to the trial court’s 

ability to judge witness credibility firsthand, and we will not set aside its 

findings or judgment unless clearly erroneous. Id.

[8] Pursuant to Indiana Code section 31-35-2-4(b)(2), DCS must prove the 

following in order to terminate the parental rights for a CHINS: 

(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. 
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(iii) The child has been removed from the parent and has 

been under the supervision of a local office 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.

DCS must prove these allegations by clear and convincing evidence. In re N.G., 

51 N.E.3d 1167, 1170 (Ind. 2016).

II. Sufficiency

[9] First, Father argues that the evidence does not establish that termination of his 

parental rights was in Child’s best interests. Father contends that termination 

was ordered solely based on his incarceration, which is improper.
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[10] Father is correct that the fact that a parent is incarcerated does not, alone, prove

by clear and convincing evidence that termination of parental rights is 

appropriate. K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641, 648 (Ind. 2015). 

Rather, DCS must proffer additional evidence in tandem with a parent’s 

incarceration to establish that placement with the parent is not in the child’s 

best interest. Id.

[11] Here, the record is replete with evidence aside from Father’s incarceration that 

termination is in Child’s best interests. At the beginning of the CHINS case, 

Father had yet to establish paternity of Child. Even after proving paternity, 

Father did not comply with any part of the dispositional decree, failing to 

attend rehabilitative services, to participate in court-ordered programs, to attend 

any visitations with Child, and to produce clean drug screens. Additionally, 

Father was charged with and eventually pleaded guilty to felony drug offenses, 

with a theft charge pending against him. As of the termination hearing, Father 

had not seen or had any contact with Child for over two years.

[12] And while Father had made some progress by completing various programs in 

the DOC, Father admitted that before his incarceration, he had refused to 

submit to drug screens, been belligerent and uncooperative with DCS 

employees, and had refused to “ jump through all [of DCS’s] hoops[,]” in order 

to see Child. Tr. Vol. II p. 160. See, e.g., Lang v. Starke Cty. Office of Family and 

Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007) (holding that the juvenile 

court may “consider the parent’s response to the services offered through . . . 

DCS[]” in CHINS proceedings). The FCM and current CASA both testified 
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that Child is currently in a safe, comfortable, and healthy environment with his 

foster parents and that Child needs this stability in order to grow and prosper. 

In their opinion, termination of parental rights was in the Child’s best interests, 

and Father proffered no evidence to the contrary.

[13] In sum, the juvenile court did not err by determining that there is clear and 

convincing evidence apart from Father’s incarceration that termination is in 

Child’s best interests.

III. Admission of Evidence

[14] Next, Father argues that the juvenile court erred when it admitted evidence of 

the original CASA’s written reports and conclusions. Specifically, Father argues 

that this evidence constituted inadmissible hearsay. The admission of evidence 

is left to the trial court’s sound discretion, and we will not disturb that decision 

unless it is against the logic and effect of the facts and circumstances before it. 

In re Involuntary Termination of Parent Child Relationship of A.H., 832 N.E.2d 563, 

567 (Ind. Ct. App. 2005).

[15] It should be noted that Father failed to object to the introduction of the original 

CASA’s written reports, thereby waiving the issue for appeal. See In re Des.B., 2 

N.E.3d 828, 835 (Ind. Ct. App. 2014). Though Father failed to object, we will 

nevertheless address his argument because Mother did raise a hearsay objection 

and, as a result, the juvenile court was able to consider and rule on the issue. 
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[16] A statement is hearsay if it “is 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 inadmissible in a 

court of law unless an exception, rule, or other law applies. Ind. Evidence Rule 

802. Here, DCS proffered the written reports and conclusions of CASA Dottie 

Rausch, an unavailable declarant, to prove the truth of the matter asserted—

namely, that termination of Father’s parental rights is warranted and necessary 

in this situation. This presentation of evidence plainly violates the prohibition 

against hearsay evidence. Thus, the juvenile court erred when it admitted the 

Rausch reports.

[17] However, the juvenile court’s error was, at most, harmless. “An error is 

harmless if it does not affect the substantial rights of the parties.” In re C.G., 933 

N.E.2d 494, 508 (Ind. Ct. App. 2010). Also, the trial court commits harmless 

error “if the erroneously admitted evidence was cumulative of other evidence 

appropriately admitted.” In re S.W., 920 N.E.2d 783, 788 (Ind. Ct. App. 2010). 

Rausch’s written reports represented just one among many pieces of evidence 

proffered by DCS during the fact-finding hearing. The new CASA, Hilary 

Laughner, provided her own recommendations together with the FCM. 

Additionally, there was well-documented proof that Father had been noncompliant with most, if not all, DCS-related services. Furthermore, Father had 

been incarcerated due to drug convictions, had neglected to secure stable 

housing and employment upon his release from the DOC, and most 

importantly, had failed to create any sort of meaningful relationship with Child 
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from the time of his birth. Though Rausch’s written reports were erroneously 

admitted into evidence, we find that the error was harmless when looking at the 

wealth of evidence that was properly admitted.

[18] The judgment of the juvenile court is affirmed.

Kirsch, J., and Crone, J., concur.