In re Termination of the Parent–Child Relationship v. Ind. Dep't of Child Servs.

• Decision Date: 30 May 2013
• Docket Number: No. 52A02–1210–JT–849.,52A02–1210–JT–849.
• Citation: 989 N.E.2d 355
• Court: Indiana Appellate Court
• Parties: In the Matter of the Termination of the Parent–Child Relationship of: B.H. & B.H. (Minor Children), and T.H. (Mother), Appellant–Respondent, v. The INDIANA DEPARTMENT OF CHILD SERVICES, Appellee–Petitioner.

989 N.E.2d 355

In the Matter of the Termination of the Parent–Child Relationship of: B.H. & B.H. (Minor Children),

and

T.H. (Mother), Appellant–Respondent,

v.The INDIANA DEPARTMENT OF CHILD SERVICES, Appellee–Petitioner.

No. 52A02–1210–JT–849.

Court of Appeals of Indiana.

May 30, 2013.

Kimberly A. Jackson, Indianapolis, IN, Attorney for Appellant.

Natalie Fantetti, DCS Miami County Office, Peru, IN, Robert J. Henke, DCS Central Administration, Indianapolis, IN, Attorneys for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

T.H. (“Mother”) appeals the termination of her parental rights to her two young sons. She contends that the trial court erred by qualifying a social worker as an expert witness and allowing that social worker to testify about a parenting assessment called the Child Abuse Potential Inventory (“CAPI”). Although Indiana Code section 25–23.6–4–6 prohibits a licensed clinical social worker from providing expert testimony, Indiana Evidence Rule 702 contains no social-worker exclusion. And because the Indiana Rules of Evidence control when they conflict with a statute, we hold that the social worker in this case was able to testify as an expert witness and was properly qualified as such. We also conclude that CAPI is based upon reliable principles, and therefore the trial court did not err by allowing testimony about Mother's CAPI results. Any error in the admission of other challenged evidence was harmless, and there is sufficient evidence to support the trial court's judgment. We affirm.

Facts and Procedural History

Mother is the biological mother of B.L.H., born on June 30, 2006, and B.J.H., born on June 21, 2007. Mother's first involvement with the local Miami County Office of the Indiana Department of Child Services (“MCDCS”) came in October 2008, when MCDCS removed the children from her care because the home was cluttered and dirty, with trash, food, animal feces, soiled diapers, and other items littered throughout.¹ After Mother entered into an informal adjustment with MCDCS, the children were returned to her care. In December 2008, MCDCS received a report that Mother was being evicted and had nowhere to live. The children were removed and placed in foster care.

Later that month, MCDCS filed a petition alleging that B.L.H. and B.J.H. were children in need of services (“CHINS”). In February 2009, Mother admitted the allegations in the CHINS petition and the children were adjudicated CHINS. The trial court ordered Mother to participate in a variety of services to facilitate reunification with her children. In pertinent part, Mother was ordered to submit to random drug screens, participate in home-based services, exercise parenting time with the children, secure independent housing and pay all rent and utilities, and work to further her education. At a status hearing in April 2009, the trial court noted that Mother's progress and participation in services was minimal at best.

In 2010, MCDCS filed its first petition to terminate Mother's parental rights. After a hearing in late 2010, the trial court denied MCDCS' petition and ordered additional services for Mother, including an intensive parenting-skills development course. At a status hearing in 2012, however, the trial court concluded that Mother had failed to fully participate in services and had not improved her ability to parent the children. The children's permanency plan was changed to adoption. MCDCS filed its second petition to terminate Mother's parental rights in February 2012, and a termination hearing was scheduled for August 2012.

During the second termination hearing, MCDCS presented evidence establishing that Mother was unable to provide the children with a safe and stable home environmentbecause she failed to secure employment and stable housing or improve her parenting skills through court-ordered services. Mother admitted that she had trouble finding stable housing and had moved twelve times since the children's removal, paying for only one of those residences herself. Tr. p. 147–51. She was currently living with her brother and sister and her parents were supporting her financially. Id. at 152. She said that her children could not live with her at her current residence. Id. at 153. Mother had completed lifeguard training and hoped to get a job at the YMCA but acknowledged that she had four years since the boys' removal to find employment and appropriate housing for her children. Id. at 162.

A number of service providers who had worked with Mother over the years testified about her ultimately unsuccessful participation in services. Mother had poor attendance and lack of interest in the intensive parenting class she was ordered to attend after the denial of MCDCS' first termination petition, id. at 78, refused to participate in individual counseling, id. at 152, and showed a poor bond with the children during parenting time, id. at 87. The children, however, were thriving in foster care despite being diagnosed with post-traumatic stress disorder and attachment issues. When first placed in foster care, B.L.H., at twenty-eight-months old, could say ten words and hid food, and B.J.H., who was sixteen months old, could not walk normally, could not drink out of a child's cup or chew food, and would go rigid when held. Id. at 94–95. Both boys were violent and would sometimes attack each other if left alone. Now, the boys were doing well in school and received counseling and developmental services. Id. at 96. B.J.H. had been diagnosed with learning disabilities and was being tested to determine the cause. The foster parents wanted to adopt the boys.

Sara Stolinas, an MCDCS caseworker, reiterated Mother's lack of progress. MCDCS offered Stolinas' written progress reports into evidence as business records. The reports included Stolinas' summaries of Mother's progress as well as other documents such as Mother's counseling records, treatment plans, parenting-time observations, and a number of other parenting-assessment documents. Mother's counsel objected on hearsay grounds, but the trial court admitted the progress reports over the objection and allowed Stolinas to summarize the reports' contents, highlighting Mother's instability in housing and employment and her non-compliance with the case plan. Id. at 132–38.

Expert witness Jillorna Uceny gave her recommendation to terminate Mother's parental rights. Uceny is a therapist, social worker, and board certified diplomate with a master's degree in social work. Id. at 45. Uceny assessed Mother's parenting skills through a number of individual tests, an interview, and an observation of Mother's interaction with the children.

One of the tests Uceny administered to Mother was the Child Abuse Potential Inventory (“CAPI”). CAPI is used to determine an individual's likelihood of physically abusing children. Id. at 44. CAPI was developed at Northern Illinois University in 1977 by Dr. Joel Millner and is widely used and accepted as relevant and reliable by psychiatric professionals. Id. at 45–46. It is a standardized test based on five “constructs,” and it has been “administered over many ... samples of people and then normed[,] and so there are three different validity scales in the cap ... that are used to make sure that we are getting an accurate result.” Id. at 45. Although CAPI had been the subject of peer-reviewed studies, Uceny said she did not have the studies or statistics in front of her at that time. Over Mother's objection—both as to the qualifications of Uceny to testify as an expert and the reliability of the CAPI test—the trial court allowed Uceny to testify as an expert.

Summarizing the CAPI results, Uceny said that Mother's score was “271 and the cut-off is 166 on the test.” Id. at 44. Mother's score suggested:

[T]hat [Mother] has an array of personal characteristics that are similar to known physical child abusers. It also suggests that she is less available to her children and less responsive to any of the temporal changes in the child's behavior and that her ability to form child attachment is less than adequate.

Id. Uceny also explained that Mother's CAPI score indicated that the children would be at risk in Mother's care; specifically, at risk from abuse by Mother or someone else without intervention or protection from Mother. Mother's high scores in categories such as “rigidity,” “distress,” “problems with others,” and “ego strength,” showed that Mother “had both emotional and cognitive immaturity, a history of untreated depression with only a brief period of medical compliance,” “denial and evasion of her responsibilities as a parent,” a victim mentality, and low frustration tolerance. Id. at 51–52. The parenting assessment also showed that Mother was unable to “be empathetically aware of the children's needs,” and that Mother viewed the “needs of [the] children as secondary to her own needs.” Id. at 52–53. As to Mother's assessment responses about employment, she had “made it clear she did not intend to get a job, that she was waiting for her boyfriend's [social security] to come in and once that happened she was going to marry him and live off his [social security].” Id. at 57.

Uceny went on to describe Mother's interaction with the children, recalling that Mother made no effort to have physical interaction with her sons and they did not approach her for physical affection. Uceny summarized her assessment of Mother:

[I]t is not likely that [Mother] is going to be able to respond to any of the outside services that have been provided to her because of her low level of functioning, both cognitively and emotionally. [I]t means she cannot see or understand that [she needs to] make the changes that she needs to make.

* * * * * *

She did not have a normal, healthy, close bond with the children. It was a very distant, disengaged[,] and cold bond.

Id. at 58. Uceny recommended terminating Mother's parental rights. ²

At the conclusion of the evidentiary hearing, the...