In re the Termination of the Parent-Child Relationship of A.W. and G.S.:
The Indiana Department of Child Services, Appellee-Petitioner. H.S. (Mother), Appellant-Respondent,
from the Montgomery Circuit Court The Honorable Harry A.
Siamas Trial Court Cause No. 54C01-1508-JT-187
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.
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.
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.
and Procedural History
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.
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.
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.
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.
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.
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