Page v. Greene County Dept. of Welfare

• Decision Date: 14 January 1991
• Docket Number: No. 28A01-8912-CV-00512,28A01-8912-CV-00512
• Citation: 564 N.E.2d 956
• Parties: Gary PAGE, Appellant-Defendant, v. GREENE COUNTY DEPARTMENT OF WELFARE, et. al., Appellee-Plaintiff, and Brenda PAGE, Appellant-Defendant, v. GREENE COUNTY DEPARTMENT OF WELFARE, et al., Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 956

564 N.E.2d 956

Gary PAGE, Appellant-Defendant, v. GREENE COUNTY DEPARTMENT OF WELFARE, et. al., Appellee-Plaintiff, and Brenda PAGE, Appellant-Defendant, v. GREENE COUNTY DEPARTMENT OF WELFARE, et al., Appellee-Plaintiff.

No. 28A01-8912-CV-00512.

Court of Appeals of Indiana First District.

Jan. 14, 1991.

Mona A. Paddock, Hartman & Paddock, Bloomfield, for appellant-defendant Gary Page.

James W. Boswell, Greene County Public Defender, Terre Haute, for appellant-defendant Brenda Page.

R. Todd Corn, Bloomfield, for appellee-plaintiff.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Gary Page (Gary) and Brenda Page (Brenda) appeal the trial court's judgment ordering termination of their parental rights to W.M.P., G.D.P., and M.A.P. We affirm.

FACTS

In April 1986 the Greene County Department of Welfare, (DPW) removed W.M.P., G.D.P., and M.A.P. from the home of the person with whom Gary and Brenda had placed them a short time earlier while Gary and Brenda sought work out of town. On July 24, 1986, Brenda admitted and Gary, by default, admitted the children were in need of services. The court placed the children with foster parents and ordered DPW to provide services to the family. However, conditions in the family deteriorated so that DPW, on December 5, 1988, filed a petition to terminate parental rights. On September 5, 1989, after a hearing held during June and July 1989, the court issued findings and conclusions to support its judgment ordering termination of Gary's and Brenda's parental rights to W.M.P., G.D.P., and M.A.P. Gary and Brenda now appeal the trial court's judgment.

ISSUES

Gary and Brenda each raise issues which we combine and restate as follows: ¹

1. Whether the trial court committed reversible error by allowing into evidence documents containing allegations their children had been sexually abused.

2. Whether the trial court erred in finding clear and convincing evidence showing a reasonable probability that the conditions which resulted in the removal of the children from the parents' custody would not be remedied and in finding that DPW met its burden imposed pursuant to IND. CODE Sec. 31-6-5-4.

DISCUSSION AND DECISION

Issue One

Gary and Brenda contend the trial court committed reversible error by admitting testimony and written evidence to the effect that W.M.P., G.D.P., and M.A.P. had been sexually molested by people they encountered in the home where Gary and Brenda placed them. In support of their contention, they state that the sole reason for removal of the children from their care was sexual molestation and that all of the evidence regarding the molestation was inadmissible hearsay. Without the hearsay evidence of molestation, Gary and Brenda assert, the court could not have found DPW met its burden of proving there was a reasonable probability the conditions resulting in the children's removal from the person with whom the parents had placed them would not be remedied if the children were returned to one of the parents.

The initial allegations of sexual abuse were contained in a caseworker's report of preliminary inquiry and investigation made pursuant to IND. CODE Sec. 31-6-4-8(b). The report was based on information given by W.M.P., G.D.P. and M.A.P. when they were interviewed by the caseworker and a state trooper. Subsequent DPW reports repeated the initial allegations of sexual abuse. None of the children testified during the hearing to terminate parental rights. Over objections made by Gary and Brenda that the reports contained hearsay, the court admitted all of the DPW reports offered.

We agree with Gary and Brenda that the reports contain hearsay evidence of sexual abuse and meet the definition of hearsay. See Plan-Tec, Inc. v. Wiggins (1983), Ind.App., 443 N.E.2d 1212, 1231 (hearsay is testimony or written evidence of out-of-court statements offered to show the truth of the matters asserted). We also agree with Gary and Brenda that the reports of sexual abuse cannot qualify for admission into evidence under the rule of Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482 (to admit hearsay as substantive evidence, out-of-court declarant must testify consistently with out-of-court statement and be subject to cross examination.) See also Hendricks v. State (1990), Ind., 562 N.E.2d 725 (hearsay also may be admitted as substantive evidence when out-of-court declarant acknowledges having made statement.) The children neither acknowledged making the statements nor testified consistently with the statements and subjected themselves to cross examination. Therefore, the reports of molestation were hearsay.

Moreover, we agree with Gary and Brenda that the reports of sexual abuse cannot qualify for admission into evidence under the business records exception to the rule against hearsay admission. The business records exception requires a showing the record was "kept in the routine course of business, and placed in the record by an authorized person having personal knowledge of the transaction...." Willis v. State (1987), Ind., 510 N.E.2d 1354, 1357, cert. denied, 484 U.S. 1015, 108 S.Ct. 721, 98 L.Ed.2d 670. Here, neither the recording caseworker nor the caseworker who testified at the termination hearing had personal knowledge of the facts reported by the children.

Nevertheless, the record contains evidence, other than the hearsay evidence, which supports the trial court's Finding of Fact No. 5 that the children were removed from their parents' care and custody for reasons other than alleged sexual abuse. The court found the children were removed because Gary and Brenda failed to supply necessary care and supervision or a stable, orderly home life and because Gary had a severe drinking problem and became easily angered, violent, and dangerous to others when drinking. In addition, as we will discuss in Issue Two, the non-hearsay evidence, including testimony from Gary and Brenda and other witnesses, as well as testimony and reports from psychologists, amply supports the court's finding there was no reasonable probability that the conditions resulting in the removal of the children from the parents' care and custody would be remedied. Therefore, we find the trial court's admission of the hearsay evidence of sexual abuse to have been harmless error.

Issue Two

Gary and Brenda also contend the trial court erred in finding that DPW met its burden of showing clear and convincing evidence: 1) there was a reasonable probability that the conditions resulting in the removal of the children from their care and custody would not be remedied, and 2) DPW had a satisfactory plan for the care and treatment of the children upon termination. In support of their first contention they argue the court erred in admitting hearsay evidence of sexual molestation being the sole reason for removal of the children. We discussed this argument in Issue One. Gary also argues in support of the first contention that DPW did not provide reasonable services to him to help him to obtain adequate housing and employment so that the children could be returned to his care and custody.

We remind Gary and Brenda that when we review a termination of parental rights by a trial court we will not reweigh evidence nor judge the credibility of witnesses. Matter of M.J.G. (1989), Ind.App., 542 N.E.2d 1385, 1388. "Rather, we will only consider the evidence, and inferences reasonably drawn from the evidence, which are most favorable to the judgment." Id. When reviewing findings of fact and conclusions of law entered in a case involving termination of parental rights, we apply a two-tier review standard. First, we determine whether the evidence supports the findings. Then, we determine whether the findings support the judgment. We will set aside ...