In Re MW

942 N.E.2d 154, 2011 WL 576089
CourtIndiana Court of Appeals
DecidedFebruary 18, 2011
Docket32A01-1006-JT-382
StatusPublished

This text of 942 N.E.2d 154 (In Re MW) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re MW, 942 N.E.2d 154, 2011 WL 576089 (Ind. Ct. App. 2011).

Opinion

942 N.E.2d 154 (2011)

In re the Termination of the Parent-Child Relationship of M.W., Minor Child, and
M.B., Mother, Appellant-Respondent,
v.
Indiana Department of Child Services, Appellee-Petitioner.

No. 32A01-1006-JT-382.

Court of Appeals of Indiana.

February 18, 2011.

*155 Paula M. Sauer, Danville, IN, Attorney for Appellant.

Matthew A. Skeens, DCS, LaGrange County Office, LaGrange, IN, Robert J. Henke, DCS, Central Administration, Indianapolis, IN, Attorneys for Appellee.

OPINION

BARNES, Judge.

Case Summary

M.B. ("Mother") appeals the termination of her parental rights to her child, M.W. We reverse.

Issue

Mother raises two issues, which we consolidate and restate as whether the Department of Child Services ("DCS") presented clear and convincing evidence to support the termination of Mother's parental rights.

Facts

Mother and M.W. ("Father") had a child, M.W., who was born in April 2006. Mother and Father initially lived together, but Father moved out in 2008. In July 2008, DCS became involved with Mother and M.W. because Mother had been using morphine, and the parties entered into an informal adjustment. Mother was on probation for a theft conviction, and in September 2008, Mother was arrested for a probation violation due to drug use. At that time, DCS removed M.W. and placed her in foster care. At the time of the removal, Father was travelling outside of the State due to his employment. DCS filed a petition alleging that M.W. was a child in need of services ("CHINS"), and Mother agreed that M.W. was a CHINS.

In October 2008, the trial court ordered Mother to participate in a variety of services, including participate in home based *156 counseling, submit to a psychiatric evaluation and comply with all recommendations, participate in routine visitation with M.W., establish paternity, submit to random drug screens, submit to a drug and alcohol evaluation and comply with all recommendations, secure suitable housing and employment, resolve any and all criminal proceedings, and reimburse the DCS for expenses.

During part of the CHINS proceeding, Mother was living with her boyfriend, but there were domestic violence issues in the household. The DCS case manager observed bruises on Mother's arms in January 2009, and in February 2009, Mother had two blackened and swollen eyes and bruises on her arms. Mother moved into Sheltering Wings, a shelter for women and children, but she only stayed at the shelter for two and one-half months. She was ultimately asked to leave the shelter because she failed to regularly attend required meetings, and a probation violation allegation was filed as a result of Mother leaving Sheltering Wings.

In February 2009, the DCS case manager advised Mother that a petition to terminate her parental rights "could be filed [after] fifteen months if she failed to follow through with the services recommended." Tr. p. 106. In March or April 2009, the DCS internally decided to move toward termination of Mother and Father's parental rights. However, in late April 2009, the DCS filed a permanency plan listing reunification with Mother and Father as the plan for M.W., and in early May 2009, the trial court approved that permanency plan. Despite the approved plan, just days later, on May 18, 2009, the DCS filed a petition to terminate Mother and Father's parental rights to M.W.

In May 2009, the DCS also filed a contempt petition against Mother and Father. Regarding Mother, the DCS case manager testified that, among other things, Mother had failed a random drug screen, had no employment, had no suitable housing, failed to complete a mental health evaluation, and had inconsistent visitations with M.W. The trial court found Mother in contempt and ordered her to strictly comply with the prior orders.

Mother was incarcerated again from April 2009 until August 2009, for another probation violation. Additionally, in June 2009, Mother pled guilty to consumption of an alcoholic beverage by a minor as a Class C misdemeanor and was sentenced to forty-two days in jail. In July 2009, she pled guilty to possession of a controlled substance as a Class D felony and was sentenced to 545 days with 365 days suspended, 180 days in jail, and 365 days of probation. Mother moved in with her father after she got out of jail, but that residence was deemed inappropriate for M.W. because of her father's criminal history and abuse of Mother.

At a hearing on August 6, 2009, DCS requested permission from the trial court to discontinue services, and the trial court granted that request. In September 2009, the trial court held a hearing on DCS's petition to terminate parental rights. Both Mother and Father appeared at the hearing. At the end of the first day of the hearing, the trial court informed DCS that it had "a really serious problem with [DCS] telling these [parents] on a day certain in April that their plan is to reunify them and then without any justifiable reason filing a termination" petition. Id. at 163-64. The trial court stated that the DCS's procedure was "not professional[]." Id. at 164. The trial court noted that, as of that time, the DCS had not met its burden of showing by clear and convincing evidence that the parents' rights should be terminated.

*157 On October 1, 2009, the parties filed an amendment to the disposition/parental participation plan ("Amended Plan"), which the trial court approved. The Amended Plan provided, in part:

The parents understand that when a child is out of the parents care for 15 of the past 22 months that it is mandatory that the DCS file for termination of parental rights. Upon entering this agreement, DCS agrees to continue the present TPR. . . . The parents are being given one last chance to STRICTLY COMPLY with the terms of the orders. . . . If the parents fail to STRICTLY comply, DCS will amend its Involuntary Petition for Termination of Parental Rights to include the noncompliance and proceed with the involuntary termination of parental rights. . . .

DCS's Exhibit 5 p. 2. The Amended Plan required Mother to: maintain employment and income; notify DCS of changes in her living situation; participate in home based counseling; secure a mental health evaluation and complete any recommendations; establish paternity; participate in visitations with M.W.; participate in random drug screens; strictly comply with the recommendations of her Pro-Active Resources drug/alcohol evaluation; and strictly comply with probation requirements.

Shortly thereafter, on October 18, 2009, Mother suffered bleeding in her brain and a severe stroke. As a result of the stroke, Mother was hospitalized and placed in a rehabilitation facility for two and a half months. Mother then spent two months in a nursing home. She was partially paralyzed on her right side and uses a walker, but she was expected to make a full recovery within six to twelve months. After leaving the nursing home, she moved into her father's residence. However, her father was not giving her food, was taking her money, and was being abusive to her. She began residing at Sheltering Wings again in late April 2010.

The trial court held another hearing on DCS's petition to terminate Mother and Father's parental rights on April 29, 2010. Mother did not appear for the first day of the hearing but appeared at the second day of the hearing.

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M.B. v. Indiana Department of Child Services
942 N.E.2d 154 (Indiana Court of Appeals, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
942 N.E.2d 154, 2011 WL 576089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mw-indctapp-2011.