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In re Termination of Parent-Child Relationship of A.W.

Court of Appeals of Indiana

November 10, 2016

In re the Termination of the Parent-Child Relationship of A.W. and G.S.:
v.
The Indiana Department of Child Services, Appellee-Petitioner. H.S. (Mother), Appellant-Respondent,

         Appeal from the Montgomery Circuit Court The Honorable Harry A. Siamas Trial Court Cause No. 54C01-1508-JT-187 54C01-1508-JT-188

          Attorney for Appellant Ryan W. Tanselle Capper Tulley & Reimondo Brownsburg, Indiana

          Attorneys for Appellee Gregory F. Zoeller Attorney General of Indiana Robert J. Henke Deputy Attorney General David E. Corey Deputy Attorney General Indianapolis, Indiana

          Vaidik, Chief Judge.

         Case Summary

         [¶1] H.S. ("Mother") and G.S. ("Father") are married and have one child together, G.A.S. Mother has a second child, A.W., from a prior relationship. Mother and Father have raised both children together. After Mother and Father were arrested at the same time, the Department of Child Services ("DCS") took the children and eventually placed them in foster care. DCS filed petitions to terminate the parental rights of both Mother and Father to their respective children. At the time of the termination hearings, Mother was incarcerated for a drug offense and scheduled to be released in seven months. She and Father both testified that they intend to remain together and live together once Mother is released from prison. The trial court concluded that Mother's rights to A.W. and G.A.S. should be terminated, but Father's rights to G.A.S. should not be terminated. The trial court made no mention of the fact that Mother would be living with Father, and therefore G.A.S., despite the termination order. Mother appeals.

         [¶2] We find that the trial court's decision to terminate Mother's rights knowing she will be living with G.A.S. is incongruous with and antithetical to the trial court's finding that the conditions that resulted in the removal of A.W. and G.A.S. from Mother will not be remedied. That contradiction, together with Mother's efforts in prison to better herself, lead us to conclude that DCS failed to prove by clear and convincing evidence that there is a reasonable probability that the conditions that resulted in A.W.'s and G.A.S.'s removal from Mother will not be remedied. Accordingly, we reverse.

         Facts and Procedural History

         [¶3] Mother and Father were married in 2011 and have one child together, G.A.S., born May 6, 2011. Mother has another child from a prior relationship, A.W., born January 19, 2008. J.W. is A.W.'s biological father and has not had contact with A.W. since she was five months old. Mother and Father have raised A.W. and G.A.S. together.

         [¶4] On March 18, 2014, Mother, Father, and the children were staying at Comfort Inn in Crawfordsville. Mother and Father got into a fight. The police were called, and both parents were arrested, Mother for possession of heroin, and Father for violating a restraining order Mother had taken out against him. DCS was called to care for the children and took them into protective custody. The children were initially placed with Father's mother. DCS filed a children in need of services ("CHINS") petition on March 20, and both children were adjudicated CHINS on May 14. The court then entered a dispositional order requiring Mother to participate in a variety of services, including individual therapy, home-based case management, and a substance-abuse assessment. The order also required both Mother and Father to submit to DCS for drug screening and to allow DCS to enter their home whenever requested.

         [¶5] In her criminal case, Mother was sentenced to probation in July 2014. She had the "standard terms of probation" plus additional terms that "she complete the Court Referral Program and follow all recommendations, that she complete mental health counseling and that she comply with all DCS recommendations and directions." Tr. Vol. I p. 48. DCS recommended that Mother have supervised visitation with A.W. and G.A.S., begin individual therapy and substance-abuse treatment, meet with a home-based case manager, and start intensive outpatient (IOP) treatment. In October, Mother was found to have violated probation for failing multiple drug screens, missing meetings with her probation officer, failing to complete IOP treatment, and committing a new criminal offense. Mother's probation was revoked; she was sentenced to jail and remained incarcerated until December, when she was released on probation for a second time. Mother's new probation terms included a no-contact order with Father, enrollment in drug-treatment therapy, attendance at ninety Narcotics Anonymous or Alcoholics Anonymous (NA/AA) meetings in ninety days, obtain employment, and compliance with all DCS recommendations. On May 22, 2015, the court found that Mother had violated probation for a second time by contacting Father and sporadically attending NA/AA meetings and therapy sessions. The court revoked Mother's probation and ordered that she serve the remainder of her original sentence.

         [¶6] Following his March 2014 arrest, Father was released in May. Father eventually moved in with his mother, E.S., who had custody of A.W. and G.A.S. At the time, DCS had issued an order forbidding Mother and Father from living with E.S. DCS discovered that Father was living with E.S. and placed A.W. and G.A.S. in foster care on December 22.

         [¶7] On August 20, 2015, DCS filed a Petition for Involuntary Termination of Parental Rights, requesting the termination of the parent-child relationship of Mother and J.W. to A.W. DCS filed a second termination petition regarding the parent-child relationship of Mother and Father to G.A.S. The court held hearings on January 20 and March 17, 2016. Mother was still in prison at the time of both hearings. At the time of the termination hearings, Mother's anticipated release date was October 14, 2016.[1]

         [¶8] Among the testimony given at the January hearing, DCS service providers stated that Mother and Father are appropriate with both children in their supervision and interactions and there are no concerns with their parenting. The service providers, the Court Appointed Special Advocate (CASA), and the Family Case Manager (FCM) expressed concern that Mother and Father's relationship had a volatile history and would remain unstable in the future because the service providers were unable to work with Mother and Father as a married couple due to the fact that Mother had been incarcerated for the majority of the proceedings. Mother, on the other hand, testified that her and Father's volatile history was due ...


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