ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEE:
BRUCE N. ELLIOTT DEBORAH S. BURKE
Marion, Indiana Marion, Indiana
IN THE COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION )
OF THE PARENT-CHILD RELATIONSHIP )
OF W.B. and J.B., the children, )
WILLIAM M. BARTRUM and )
PATRICE BARTRUM, )
vs. ) No. 27A02-0201-JV-76
GRANT COUNTY OFFICE OF FAMILY )
AND CHILDREN, )
(Tr. p. 145).
Herman testified that, by that time, the Parents had lived at the same address for a year or more. He testified further that he had visited the Parents present home numerous times and that it was always clean, appropriate, and stocked with food. He also testified that the Parents always complied with his instructions.
The Court Appointed Special Advocate (CASA) testified that from the time the oldest Bartrum child was born in 1993, the Parents had lived in fourteen (14) different places. Prior to the removal of the older Bartrum children, the family was evicted from at least six (6) residences and sued for back rent. Occasionally, the Parents and the older Bartrum children stayed with relatives; a few nights they even slept on the street. After the removal of the older Bartrum children, the Parents moved from Marion to Gas City and back, living in several different places during this period.
Father testified that he was currently self-employed in his own construction business. He had just begun submitting bids on various projects, however, and had made very little money so far. Prior to his current situation, Father had been unemployed for several years except for one (1) month when he worked a temporary job. His last regular job was for four (4) years, on and off, ending in about 1998. Father had pled guilty to four (4) felony counts of theft in June 2000 and spent 63 days in jail. In December of 1998, Father pled guilty to welfare fraud and was ordered to pay restitution, which remains unpaid. At the time of the termination hearing, there was a pending criminal action against Father for five (5) counts of neglect of a dependent child Class D felonies for the older Bartrum children. The Parents had planned for Father to be a stay-at-home dad if they got custody of the twins.
Mother testified she had been employed at her present job since June 2000, and that she had received three (3) raises. Mother also testified that she had a miscarriage the week preceding the removal of the older Bartrum children, which left her feeling very sick, tired, and depressed. Both parents testified that at the time the older Bartrum children were removed, they were in the process of moving from one trailer to a larger, better trailer, and that was why the smaller trailer, visited by Kelly, was so messy. At the time of the termination hearing, Mother had five (5) counts of child neglect pending against her.
At the termination hearing, the trial court also heard testimony from two (2) counselors who had worked with the older Bartrum children. Their individual testimonies corroborated the following facts: when the older Bartrum children were first observed by these professionals, they were severely delayed developmentally, socially, emotionally, and intellectually. For example, with respect to the oldest, S.B., who was almost six (6) years old when she was first seen, Diane Burks testified that:
Um, she had minimal language. Um, we estimated it to be at approximately 18 to 24 months, but very, very simplified. Um, she had no object identification. Um, for example, in food products, the only thing she could identify was an egg. Um, she was uninhibited, had very few boundaries . . . she would, um, be all over somebody, climbing all over, climbing right up your body, so forth. . . . She had poor hand-eye coordination and poor fine motor skills. . . . She knew no colors. she knew no shapes. She knew no alphabetic, alphabet letters. She knew no numbers. She could not count. Um, she had poor impulse control.
(Tr. pp. 77-8.) Regarding K.B., she had some very bazaar symptoms of, uh, kicking furniture, being very aggressive, having wild laughter, making animal sounds, uh, if she was scared, she would go to a corner and make the only way we could ever describe them was animal sounds. (Tr. p. 91). While K.B. acted out[,] [D.M.B.] acted in. Um, he would withdraw and in severe cases he would withdraw into this fetal position. He was not attached. He was not bonded. He was not interactive. He was very isolated. (Tr. p. 96.) In addition, K.B. and S.B. acted out sexually on occasion. The behaviors mentioned here were just some of the inappropriate behaviors exhibited by the three (3) oldest of the older Bartrum children. These three (3) children were diagnosed with Post-Traumatic Stress Syndrome. The two (2) youngest of the older Bartrum children, due to their extremely young age, exhibited less bizarre behavior. Since their removal from the Parents home, the older Bartrum children have made significant strides towards normalcy.
The CASA for the twins was also the CASA for the older Bartrum children. The CASA recommended termination.
My recommendation is based on the findings in the first termination of the five children. The children have made allegations of sexual abuse at the hands of both parents. There were three, uh, proven cases of a dirty home. Uh, the claims that the children are making of sexual abuse has been consistent from, uh, the beginning of their placement, within two weeks of their initial placement to current. Um, their stories have not varied. Theyve told therapists. Theyve told foster, foster care providers. Theyve told this CASA stories, and in their consistency, I find it difficult to believe that they are not true, and because of that I could not advocate for children to live with parents who have even possibly committed those acts.
(Tr. p. 303).
Finally, the factual background would not be complete without mentioning that Father is Mothers second husband. Mother was formerly married to Robert Colburn, and had three (3) sons by him, namely: R.C., born May 1, 1981; B.C., born August 19, 1982; and M.C., born April 16, 1984. These boys were removed from Mother and Robert Colburns care and custody on July 14, 1988, due to neglect. These three (3) children have had numerous behavior problems and have been placed in various homes and institutions. Mother had her parental rights involuntarily terminated to these three (3) children. After removal, these children were also found to be developmentally delayed and to have been physically and/or sexually abused. None of Mothers three (3) oldest boys ever found permanent placement. One has been in a mental health facility, then in a sexual offenders program, all before age eighteen (18).
On September 24, 2001, the trial court entered its Judgment of Involuntary Termination of Parent-Child Relationships (Judgment).
The Parents now appeal. Additional facts will be added as needed.
(b) Both Parents have a long history of failing to maintain consistent employment
in order to provide a safe and stable home for their children.
At the time of the hearing, Fathers pattern continued; however, Mother has maintained
adequate employment for over a year at Riverbend Learning Center.
(c) Although Parents have now remained in one residence for over a year
and maintained it in an appropriate manner, the Court finds it likely that
Parents previous patterns would continue given the longer history of unstable and unsuitable
(d) Parents, and each of them, were charged with five counts of Neglect
of a Dependent, a Class D Felony, one count for each of the
older five Bartrum children and probable cause was found to exist for such
charges. The criminal charges are pending and if convicted, Parents face possible
(Appellants Brief pp. 5-6).
The Parents assert that the trial court erred by focusing on their past failures instead of present successes. Specifically, they argue that [t]he courts finding that the parents would relapse into unstable and unsuitable living conditions is at odds with the current information at the time of the termination hearing. (Appellants Brief p. 16). To refute the trial courts findings, the Parents cite to the following evidence: the Parents had been residing in the same house for at least one (1) year prior to the termination hearing; by all accounts their house was clean and appropriate for the twins; there was adequate food and transportation available; Mother had been working at the same job for over a year during which time she had received several pay raises and Father had started his own business; that the Father would be available to watch the children while Mother worked; and the trial courts use of their pending criminal charges against them was mere speculation.
As stated above, the OFC had to demonstrate, among other things, the reasonable probability that the conditions that resulted in the childrens initial removal would not be remedied. I.C. § 31-35-2-4(b)(2)(B)(i). In making this determination, the trial court should judge the parents fitness to care for their children at the time of the termination hearing. In re D.J., 755 N.E.2d 679, 684 (Ind. Ct. App. 2001). Any improvement in the Parents ability to care for the twins since the filing of the CHINS petition is relevant. However, the trial courts inquiry does not stop there. The trial court must also evaluate the parents habitual patterns of conduct to determine their long-term effect on the Parents short-term improvements. B.D.J., 728 N.E.2d at 201.
This balancing of past conduct in light of present behavior is even more crucial where, as here, the children at issue have never resided with the Parents. In cases like this, where the children have never resided with the parents, we focus on the conditions that led to the welfare departments retention of custody. See In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997) (holding that when the child is not in the custody of the parents, the focus of the termination inquiry is what conditions led to the [OFC] retention of the custody of the child.) Thus, we find that the trial court did not wrongly focus on the Parents past behavior.
It was, however, incumbent on the trial court to determine whether there was a reasonable probability that the conditions leading to removal have been, or would be, remedied. Id. The trial court made a specific finding that the conditions most likely would not be remedied, and supported that finding with specific reasons. The Parents submit that to have so concluded, the trial court must have ignored the evidence recited above, which they claim demonstrates the conditions have already been remedied. In making their argument, the Parents focus solely on the evidence favorable to them. For example, the Father testified that they stopped paying rent to the various landlords if the landlords failed to recognize and fix any problems with the residence. (Appellants Brief p. 15). This evidence, they suggest, refutes the trial courts finding that the childrens home life was unstable as Parents were evicted numerous times while the children were in their care. (Appellants Brief p. 5). Such analysis is inappropriate where, as here, we may only consider the evidence favorable to the trial courts findings. B.D.J., 728 N.E.2d at 199. By asking us to consider the evidence favorable to them, the Parents improperly invite us to reweigh the evidence and judge the credibility of the witnesses. This we may not do. Id.
Moreover, while the Parents have undeniably made improvements in their personal habits and lives, these improvements came at a time when they were not burdened by caring for two (2) young children. Whether the improvements would continue once the Parents added the additional, and significant, burden of childrearing remains unseen. For this reason, a court need not wait until a child is irreversibly harmed such that his physical, mental, and social development is permanently impaired before terminating a parent-child relationship. Id. at 201.
After reviewing the record, we conclude that the trial courts findings rest on sufficient evidence.
(a) Mothers parental rights as to eight (8) children have been previously terminated.
All eight children were initial [sic] removed from Mothers care and determined
to be children in need of service (CHINS). Despite being offered and
participating in services through a proceeding for the three oldest children (the Colburns),
Mothers parental rights were terminated on July 19, 1989. Five other children,
[S.B., K.B., D.M.B., D.E.B., and M.B.], were removed from Mothers care by the
Grant County OFC on may 21, 1999 and later determined to be children
in need of services. Again, despite being offered and participating in services
in that CHINS proceeding, Mothers parental rights regarding those children were terminated on
November 28, 2000.
(b) Fathers parental rights regarding [S.B., K.B., D.M.B., D.E.B., and M.B.] were also
terminated on November 28, 2000. Those five children had also been removed
from Fathers care and his rights terminated after Father was offered and participated
(c) That four of the five older Bartrum children, full siblings of [J.B. and W.B.], were found to be severely developmentally delayed upon removal from the care of Mother and Father. The probable cause of their pervasive delays was neglect by Mother and Father. The children progressed and thrived in foster care.
(d) That [S.B., K.B., and D.M.B.] were subjected to sexual and physical abuse while in the care of Mother and Father.
(e) Although Mother and Father deny they sexually or physically abused any children in their care, the Court finds the evidence presented by the Grant County OFC compelling and that nothing in the evidence convinces the Court that such neglect and abuse would not occur again in Parents home should they have the care of the children.
(f) Returning the children to their parents care would be equivalent to this Court waiting for the childrens very survival to be threatened, a standard which is not required by law.
(Appellants Brief pp. 6-7).
The Parents take issue specifically with the trial courts finding [t]hat [S.B., K.B., and D.M.B.] were subjected to sexual and physical abuse while in the care of Mother and Father. (Appellants Brief p. 7). For the trial court to so find, the Parents reason, it must have improperly accepted as true certain hearsay allegations of sexual abuse made by the older Bartrum children to their therapists that were offered into evidence, not to prove the truth of the matter asserted, but rather to explain the course of treatment OFC provided those children.
These statements were admitted under the hearsay exception found at Ind. Evidence Rule 803(4), which establishes a hearsay exception for [s]tatements made for purposes of 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 the external source thereof insofar as reasonably pertinent to diagnosis or treatment. Such statements are permitted as an exception to the hearsay rule based upon the belief that a declarants self-interest in seeking medical treatment renders it unlikely that declarant will mislead the person he wants to treat him. McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996).
A trial court has inherent discretionary power when ruling on the admissibility of evidence; thus, its decisions are reviewed only for abuse of that discretion. Myers v. State, 617 N.E.2d 553, 558 (Ind. Ct. App. 1993). Even though it is hearsay, a medical history is relevant when it forms the basis of a medical opinion. Id. The information contained in the patients history, however, may not be used as proof of the facts given by the patient. Id. Thus, any facts within a medical history given by the patient are not admissible as substantive evidence. Id. In McClain, our supreme court stated:
The underlying rationale for this hearsay exception requires a two-step analysis for evaluating whether a statement is properly admitted pursuant to Evid. R. 803(4): 1) is the declarant motivated to provide truthful information in order to promote diagnosis and treatment; and 2) is the content of the statement such that an expert in the field would reasonably rely on it in rendering diagnosis or treatment.
Id., 675 N.E.2d at 331.
The Parents contend that the OFC failed to establish that the out-of-court declarants - in this case, the older Bartrum children - were motivated to provide truthful information in order to promote diagnosis or treatment. Thus, Parents contend, the admission of this evidence was an abuse of the trial courts discretion and, further, the trial court impermissibly relied on these hearsay statements in finding that the Parents had abused their older children.
Dr. Creta Roberts (Roberts) testified that she was first asked to do an assessment of the older Bartrum children, and then to provide therapy. Much of her testimony, which was objected to by the Parents, included hearsay statements allegedly made by the older Bartrum children to her and to others regarding alleged sexual and physical abuse by the Parents. In overruling some of the objections, the trial court stated its opinion that the allegations of abuse were an exception to the hearsay rule under Evid. R. 803(4), because the statements were relied upon by the therapist to determine a course of treatment. This purpose meets the second prong of the test set forth in McClain. However, we find the record devoid of any evidence of the first prong - that the children, in making these statements, were motivated to provide truthful information in order to promote diagnosis and treatment. McClain, 675 N.E.2d at 331. As Parents counsel pointed out several times in his objections, Roberts testimony clearly portrayed the young children as mentally and emotionally incompetent, and no doubt totally unaware of Roberts professional purpose. As our supreme court observed in McClain, this exception does not lend itself easily to the testimony or statements of young children. Id.
Where that inference is not obvious, as in this case involving a young child brought to treatment by someone else, there must be evidence that the declarant understood the professional's role in order to trigger the motivation to provide truthful information. Here the requisite indicia of reliability are missing. There is no evidence that the victim sought the therapist's help or that he believed he was receiving any treatment. The child testified that Heiny was his "counselor" and that he talked to her about what McClain did to him. Thus, the record is devoid of any evidence showing that the victim understood that he was speaking to a trained professional for the purposes of obtaining diagnosis of, or providing treatment for, emotional or psychological injuries. Because the declarant's motive to promote treatment or diagnosis is crucial to reliability, the therapist's testimony was not shown to be within the medical diagnosis or treatment hearsay exception.
Id., 675 N.E.2d at 331 (citations omitted). Thus, OFC failed to establish that Roberts testimony met the first prong of the McClain test. For this reason, we conclude that the trial court erred in admitting the statements made by the children to their therapists. Moreover, it was wrong of the trial court, to the extent that it did so, to rely on the substance of the statements as proof of the matters stated. Id.
The improper admission of hearsay evidence does not warrant reversal, however, unless it affects the Parents substantial rights. Id. Here, in addition to Roberts testimony, the record includes the testimony of the childrens case workers and another therapist, all of whom testified to direct observations of behavior by the children that leave us firmly convinced that the children were traumatized during the time they lived with their parents. Moreover, the trial courts finding of sexual and physical abuse was but one of several findings supporting its ultimate finding that the continuation of the parent-child relationship posed a threat to the twins well-being. Even after eliminating the objectionable findings, sufficient findings remain to support the trial courts conclusion that continuation of the parent-child relationship with the twins posed a threat to their well-being.