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

          Appeal from the Tippecanoe Superior Court The Honorable Faith A. Graham, Judge The Honorable Tricia L. Thompson, Magistrate Trial Court Cause No. 79D03-1804-JT-48

          ATTORNEY FOR APPELLANT Amanda McIlwain Legal Aid Corporation of Tippecanoe County Lafayette, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana

          BAKER, JUDGE.

         [¶1] C.B. (Mother) appeals the trial court's order terminating her parent-child relationship with her child, A.B. (Child). Mother argues that there is insufficient evidence supporting the trial court's conclusion that the conditions resulting in the placement of Child outside Mother's custody will not be remedied, that the continuation of the parent-child relationship poses a threat to Child's well-being, and that the termination of the parent-child relationship is in the child's best interest. Finding the evidence insufficient, we reverse and remand for further proceedings.

         Facts

         [¶2] Child was born in January 2011 to Mother and B.B. (Father).^[1] On April 18, 2017, the Department of Child Services (DCS) and law enforcement officers went to Mother's home after receiving a report that Child's half-brother (Sibling), who was then three years old, had been neglected due to lack of supervision by Mother. When they arrived, Sibling was walking down the street unsupervised; Mother was inside, passed out on the couch with burnt spice cigarettes near her and within a child's reach. The officers tried several times to wake Mother. Once they did, they arrested her, and DCS placed Child and Sibling in relative care. The State charged Mother with Level 6 felony neglect of a dependent and Class A misdemeanor possession of a synthetic drug or lookalike substance. Mother remained incarcerated until April 22, 2017.

         [¶3] On April 19, 2017, DCS filed a petition alleging both children to be children in need of services (CHINS) based on the above facts.^[2] On May 15, 2017, a factfinding hearing took place, after which the juvenile court adjudicated Child to be a CHINS. On May 25, 2017, the juvenile court entered its dispositional and parental participation decrees, ordering Mother to participate in parenting time, a substance abuse assessment and all recommendations, case management, a parenting assessment and all recommendations, random drug screens, a mental health evaluation and all recommendations, individual counseling and all recommendations, and family therapy and all recommendations.

         Mother's Participation with Services and Visits

         [¶4] In May 2017, DCS referred Mother to Bauer Family Resources for parenting time and case management. In May and June 2017, Mother participated in case management and her parenting visits were positive, with Mother providing appropriate care for the children and no safety concerns reported. Mother then missed multiple visits in July and August 2017. Mother reported that she was depressed and that her depression was why she disengaged with visitation. Because Mother missed visits, in August 2017, Bauer closed its services to her.

         [¶5] In May 2017, DCS referred Mother to Wabash Valley Alliance (WVA) for a mental health evaluation, which Mother completed. WVA also recommended that Mother participate in individual therapy and family therapy.

         [¶6] On June 13, 2017, Mother completed an intake assessment with an addictions counselor at WVA. Mother told the counselor that she had used alcohol in the past but that she had never used illegal drugs. Following the assessment, the counselor recommended that Mother complete a substance abuse assessment and participate in individual counseling for her symptoms of depression.

         [¶7] On July 31, 2017, Mother completed her substance abuse assessment at WVA. During the assessment, Mother indicated that she was using alcohol, methamphetamine, and opiates, and that she had used methamphetamine three days before the assessment. The treatment provider recommended that Mother attend an intensive outpatient program (IOP). On September 5, 2017, Mother attended one IOP session at WVA; she was later discharged for noncompliance. In October 2017, DCS referred Mother to Bauer for another IOP, which Mother did not complete. On August 22, 2017, Mother requested a medication evaluation; it is unclear from the record whether she received a referral for it.

         [¶8] On August 30, 2017, the juvenile court stated that Mother's parenting time may continue so long as she submitted to all requested drug screens and refrained from using or testing positive for methamphetamine, but that if she tested positive, her parenting time would be immediately suspended and would not resume until further order of the juvenile court. After Mother tested positive for methamphetamine on September 28, 2017, the juvenile court suspended her parenting time. Family Case Manager (FCM) Samantha Goltz testified that Mother "was given the opportunity to participate in I believe 30 days of clean screens and not be missing any screens" but that Mother did not comply with those terms and has not been allowed to visit Child since then. Tr. Vol. II p. 77.

         [¶9] Mother requested that visitation be reinstated. Mother testified that in October 2017, she requested a Skype or telephone visit if she could not have an in-person visit due to her failing the drug screen. DCS denied her request, believing it would be detrimental to Child. In February 2018, DCS denied Mother's request because Mother did not participate in drug screens and had not seen Child in a long time. In June 2018, DCS denied Mother visitation because of the length of time that had passed since Mother's last visit with Child. DCS never reinstated visits during these proceedings.

         [¶10] In November 2017, DCS referred Mother to case management at Lifeline Youth and Family Services; Lifeline later discharged her due to lack of contact. However, Mother was incarcerated from November 6 through December 16, 2017, for contempt of court because she failed to pay child support for another child. She was then on work release until January 5, 2018.

         [¶11] FCM Goltz made a referral for a psychological evaluation on March 5, 2018, and although Mother was incarcerated again on March 26, 2018, FCM Goltz did not renew the referral because she did not know when Mother would be released. Mother's incarceration, which was for the neglect of a dependent charge (to which Mother had pleaded guilty) that led to this case, lasted through May 23, 2018. Following her arrest, she was on house arrest through August 1, 2018. Mother was on probation at the time of the termination hearing.

         [¶12] At the start of these proceedings, Mother was seeking housing because her residence at the time was being investigated for mold. She testified that she had been living in the same place since November 2017, and at the time of the termination hearing, she was facing eviction because the property owners sold the building. She testified that she was actively looking for housing, and that if she needed to, she could stay with her father or her boyfriend's mother. As for employment, at the time of the termination hearing, Mother was in her second month of employment at Steak 'n' Shake; she had previously worked for a cleaning company. Mother was also taking prescribed medication to treat her depression and was working to obtain health insurance.

         Mother's Drug Use and Screens

         [¶13] DCS referred Mother for drug screens. Mother missed twenty-two screens between August 22, 2017, and October 10, 2017. Mother completed eleven screens from September 27, 2017, to November 1, 2017, that were negative of all substances. On October 13 and 26, 2017, she tested positive for alcohol. On September 28, 2017, Mother tested positive for methamphetamine.

         [¶14] In the three months leading up to the termination hearing, Mother consistently participated in drug screens, all of which were clean, and she was still participating at the time of the hearing.^[3] FCM Goltz testified that because Mother had been incarcerated before the three months in which she consistently tested clean, Mother could have been clean for approximately five ...