Carter v. KCOFC

• Decision Date: 28 November 2001
• Docket Number: No. 42A05-0104-JV-151.,42A05-0104-JV-151.
• Citation: 761 N.E.2d 431
• Parties: Sandra CARTER, Appellant-Respondent, v. KNOX COUNTY OFFICE OF FAMILY AND CHILDREN, Appellee-Petitioner.
• Court: Indiana Appellate Court

761 N.E.2d 431

Sandra CARTER, Appellant-Respondent, v. KNOX COUNTY OFFICE OF FAMILY AND CHILDREN, Appellee-Petitioner.

No. 42A05-0104-JV-151.

Court of Appeals of Indiana.

November 28, 2001.

Publication Ordered January 14, 2002.

Joe D. Black, Vincennes, IN, for Appellant.

Robert D. Lewis, Vincennes, IN, for Appellee.

OPINION

SHARPNACK, Chief Judge.

Sandra Carter ("Mother") appeals the trial court's judgment involuntarily terminating her parental rights. Mother raises six issues, which we consolidate and restate as:

1. Whether the involuntary termination proceedings were unfair to Mother because of bias on the part of the presiding trial court judge who had previously approved a permanency plan that had recommended termination of Mother's parental rights;

2. Whether the trial court erred by permitting a health-care provider to use medical records to refresh her recollection while testifying and by admitting into evidence certain mental health records over Mother's drug and alcohol privilege objection.

We affirm.

The trial court's findings of fact are not in dispute.¹ Prior to March, 2000, the Knox County Office of Family and Children ("KCOFC") filed a petition alleging that D.C. was a Child in Need of Services ("CHINS"), and the trial court held a CHINS hearing. At the CHINS hearing, the KCOFC submitted the required permanency plan, which proposed that "the only appropriate permanency plan for ... [D.C.] begins with the termination of parental rights of [Mother]." Appellant's Appendix at 17; see Ind.Code §§ 31-34-21-5.7(b), 31-34-21-7.5. On March 24, 2000, the trial court entered an order approving the permanency plan.

Subsequent to the CHINS proceeding, Mother agreed to voluntarily terminate her parental rights if Mother's sister, Sarah, adopted D.C. The trial court approved the agreement; however, Sarah decided ultimately that she did not wish to adopt D.C. Accordingly, the trial court rescheduled the termination hearing, and the same trial court judge who had heard the CHINS case presided over the termination hearing. At the hearing, the trial court permitted, over objection, a health-care provider to use Mother's mental health records, including drug and alcohol records, to refresh her memory regarding Mother's past drug and alcohol problems. On March 29, 2001, the trial court entered judgment terminating Mother's parental rights.

Before addressing the two issues raised by Mother, we note that involuntary termination of parental rights is the most severe action a juvenile court can take. In re A.N.J., 690 N.E.2d 716, 720 (Ind.Ct. App.1997). Termination severs all rights of a parent to his or her child. In re D.G., 702 N.E.2d 777, 780 (Ind.Ct.App.1998). Therefore, termination is designated to be a last resort, available only when all other reasonable efforts have failed. In re B.D.J., 728 N.E.2d 195, 199 (Ind.Ct.App. 2000). This policy is in recognition of the constitutional right of parents to the custody of their children and of the State's authority to interfere with that right only in certain limited circumstances. In re D.G., 702 N.E.2d at 780. With this policy as our backdrop, we address Mother's two allegations of error.

I.

The first issue is whether the involuntary termination proceedings were unfair to Mother because of bias on the part of the presiding trial court judge who had previously approved a permanency plan that had recommended termination of Mother's parental rights. Prior to the termination hearing, Mother requested a change of judge, which the trial court denied. A ruling upon a motion for a change of judge rests within the sound discretion of the trial judge and will be reversed only upon a showing of abuse of that discretion. Reynolds v. State, 575 N.E.2d 28, 30 (Ind. Ct.App.1991), trans. denied. Reversal is appropriate only where a record discloses actual bias and prejudice against a party. Smith v. State, 477 N.E.2d 857, 864 (Ind. 1985).

Initially, Mother argues that the trial court judge violated Canon 3 of the Judicial Code of Conduct² by presiding over the termination proceeding after previously approving a permanency plan recommending the termination of her parental rights. However, because the Indiana Supreme Court has exclusive jurisdiction over alleged violations of the Code of Judicial Conduct, we cannot determine whether a trial court judge violated a Judicial Canon. Cook v. State, 612 N.E.2d 1085, 1087 (Ind.Ct.App.1993). Thus, the trial judge's action in relation to the Code of Judicial Conduct is not a proper consideration for this court. See, e.g., id.

Next, Mother asserts that it is "fundamentally unfair"³ for a trial judge who previously approved a permanency plan supporting termination of Mother's parental rights to act as trier of fact in a proceeding to determine whether Mother's parental rights should be terminated. The law presumes that a judge is unbiased and unprejudiced. James v. State, 716 N.E.2d 935, 940 (Ind.1999). To overcome this presumption, the moving party must establish that the judge has personal prejudice for or against a party. Lasley v. State, 510 N.E.2d 1340, 1341 (Ind.1987). Such bias or prejudice exists only where there is an undisputed claim or the judge has expressed an opinion on the merits of the controversy before him. Wallace v. State, 486 N.E.2d 445, 456 (Ind.1985), reh'g denied, cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 723 (1986). Adverse rulings and findings by the trial judge do not constitute bias per se. Lasley, 510 N.E.2d at 1341. Instead, prejudice must be shown by the judge's trial conduct; it cannot be inferred from his subjective views. Wallace, 486 N.E.2d at 456.

Moreover, Indiana courts credit judges with the ability to remain objective notwithstanding their having been exposed to information which might tend to prejudice lay persons. In re Johnson, 612 N.E.2d 569, 572 (Ind.Ct.App.1993), trans. denied. Thus, the mere fact that a party has appeared before a certain judge in a prior action or the judge has gained knowledge of the party by participating in other actions does not establish the existence of bias or prejudice. Lasley, 510 N.E.2d at 1341. Indeed, our courts have recognized that in the area of termination proceedings, a judge is very likely to have knowledge of previous proceedings because the juvenile court's jurisdiction over a child in need of services or his parent continues until the child reaches his twenty-first birthday, unless the court discharges the child and his parent at an earlier time. In re D.T., 547 N.E.2d 278, 283 (Ind.Ct.App. 1989), reh'g denied, trans. denied.; see also Ind.Code § 31-30-2-1.

In the present case, Mother's sole claim of bias rests on the fact that the trial court judge presided over both the CHINS proceeding, wherein it approved a permanency plan recommending the termination of Mother's parental rights, and the termination hearing. However, as we discussed above, the mere fact that a judge has gained knowledge of the party by participating in other actions does not establish the existence of bias or prejudice. Wallace, 486 N.E.2d at 456. Rather, on an appeal alleging judicial bias, Mother bears the burden of proving that the trial judge was partial. In that vein, Mother contends that by approving a permanency plan recommending the termination of Mother's parental rights at the CHINS hearing, the trial judge expressed an opinion on the merits of the termination proceeding before him, namely that her parental rights should indeed be terminated.⁴ We disagree. In its order approving the permanency plan, the trial judge acknowledged that the plan was "in the best interest of [D.C.]" and that the KCOFC had "made reasonable efforts to preserve [D.C.'s] family." Appellant's Appendix at 21-22. Accordingly, the judge adopted the permanency plan and ordered the KCOFC to continue its services to Mother and D.C. By approving the permanency plan at the CHINS proceeding, the trial court judge was merely approving a plan of action for the KCOFC to pursue in an effort to further the best interests of D.C. The court's approval of the permanency plan did not indicate that the trial judge was prejudiced against Mother's parental abilities to the extent that he would necessarily terminate Mother's parental rights at a subsequent termination hearing.

In fact, the Record reveals that at the termination hearing, the trial court judge took his responsibility of deciding whether to terminate Mother's parental rights very seriously. For example, the trial judge appointed a Guardian Ad Litem to represent the best interests of D.C., conducted a two day fact-finding hearing, heard and considered testimony from numerous witnesses, and took his decision whether to terminate Mother's parental rights under advisement for approximately two months. Further, when the trial court finally entered its order terminating Mother's parental rights, the judge issued findings of fact and conclusions thereon demonstrating that he had carefully balanced the interests of Mother and D.C. In the absence of any evidence to the contrary, we must presume that the trial court judge retained his impartiality and objectivity. See, e.g., James, 716 N.E.2d at 940

. Mother bears the burden of proving otherwise, and she has failed to meet her burden. Accordingly, we hold that the trial judge was not biased or prejudiced against Mother at the termination hearing. See, e.g., In re D.T., 547 N.E.2d at 283. As a consequence, the trial court did not abuse its discretion when it denied Mother's motion for change of judge. See, e.g., In re Adoption of L.C., 650 N.E.2d 726, 734 (Ind.Ct.App.1995),

reh'g denied, trans. denied, cert. denied, 517 U.S. 1136, 116 S.Ct. 1423, 134 L.Ed.2d 547 (1996).

II.

The second issue is whether the trial court erred by permitting a health-care provider to use medical records to refresh her recollection while testifying and by admitting into evidence certain mental health records...