In the Termination of the Parent-Child Relationship of: C.S. and K.S. (Minor Children) and K.W.S. (Mother) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 16, 2020
• Docket: 20A-JT-1041
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 16 2020, 8:22 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Antonio G. Sisson Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana David E. Corey Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Termination of the Parent- October 16, 2020 Child Relationship of: Court of Appeals Case No. 20A-JT-1041 C.S. & K.S. (Minor Children), Appeal from the Delaware Circuit and Court K.W.S. (Mother), The Honorable Kimberly S. Appellant-Respondent, Dowling, Judge The Honorable Amanda Yonally, v. Magistrate Trial Court Cause Nos. Indiana Department of 18C02-1909-JT-204 18C02-1909-JT-205 Child Services, Appellee-Petitioner

Weissmann, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1041 | October 16, 2020 Page 1 of 10 [1] K.W.S. (Mother) appeals the trial court’s order terminating the parent-child

relationship between Mother and her two children, C.S. and K.S. (the

Children). Mother argues that the evidence is insufficient to support the

termination. Finding the evidence sufficient, we affirm.

Facts [2] Mother has two children—C.S., born in August 2014, and K.S., born in

September 2017.1 After K.S.’s birth in September 2017, the Department of

Child Services (DCS) received a report alleging that Mother had used illegal

substances while pregnant. Mother tested positive for methamphetamine and

buprenorphine (commonly known as Suboxone) on the day of K.S.’s birth. On

September 27, 2017, DCS removed the Children from Mother’s care and

custody, and they have never been returned.

[3] On October 2, 2017, DCS filed a petition alleging that the Children were

children in need of services (CHINS). At the initial hearing the next day,

Mother admitted that the Children were CHINS and the trial court entered a

CHINS adjudication. Mother specifically admitted that she had used

buprenorphine, THC, and methamphetamine throughout her pregnancy; that

she had used illicit substances while serving as the Children’s primary caregiver;

and that she believed she could benefit from substance abuse services. On

1 The parent-child relationship between the children and their father was also terminated, but he did not appeal that order.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1041 | October 16, 2020 Page 2 of 10 January 22, 2018, the trial court entered a dispositional decree ordering Mother

to, among other things, refrain from drug use and participate with random drug

screens, complete a substance abuse assessment and comply with any

recommendations, and obey the law.

[4] Initially, Mother engaged with services and refrained from drug use. But in the

summer of 2018, Mother stopped communicating with DCS and stopped

providing drug screens. On September 14, 2018, Mother tested positive for

methamphetamine. On October 3, 2018, Mother was arrested for possession of

methamphetamine and neglect of a dependent2 after the Children were found in

a car with the parents, who did not have unsupervised parenting time. 3 The

Children were not buckled into car seats and there was methamphetamine and

a syringe in the car. Mother’s October 4, 2018, drug screen was positive for

methamphetamine. After she was released, Mother continued to visit

consistently with the Children but did not participate consistently with other

services. On April 8 and 18, 2019, Mother tested positive for

methamphetamine.

[5] Mother was arrested in May 2019 and again tested positive for

methamphetamine. She was later charged with attempted robbery and battery

2 The State later added charges of possession of methamphetamine, unlawful possession of a syringe, and two additional counts of neglect of a dependent. 3 Although the record does not contain a full recounting of this incident, the Family Case Manager explained that the Children were with the parents without supervision because “they were allowed by the family members who were to be supervising.” Tr. Vol. II p. 105.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1041 | October 16, 2020 Page 3 of 10 resulting in bodily injury. In November 2019, Mother pleaded guilty and

received a four-year sentence, with two years suspended, meaning that her

earliest possible release date is November 2020.4 She has been incarcerated

since May 2019.

[6] Mother has never participated with the recommended intensive outpatient

treatment. She also was unable to secure stable housing and employment

during the CHINS proceedings.

[7] On September 10, 2019, DCS filed petitions seeking to terminate the parent-

child relationship between Mother and the Children. A factfinding hearing

occurred on February 27, 2020, at which both the Family Case Manager (FCM)

and Court Appointed Special Advocate (CASA) testified that the Children were

thriving in their preadoptive foster home and bonded to their foster parents.

The FCM and CASA both recommended that the parent-child relationship be

terminated. On May 4, 2020, the trial court entered an order terminating the

parent-child relationship. In pertinent part, it found as follows:

55. The child[ren] need[] a safe, stable, secure and permanent environment in order to thrive. Mother has not shown the inclination or ability to provide the child[ren] with such an environment.

4 As part of Mother’s plea agreement, the State dismissed the criminal charges from the October 2018 incident.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1041 | October 16, 2020 Page 4 of 10 56. Despite the intervention of [DCS] and the Court, Mother has demonstrated an inability or unwillingness to remain sober and to obtain and maintain safe and appropriate housing for the child[ren]. Mother has failed to benefit from the services provided in order to alleviate the conditions that resulted in the child[ren]’s removal from the home and continued placement outside of the home.

57. Mother is currently incarcerated and unable to provide for the child[ren] due to her incarceration. Prior to her incarceration, Mother demonstrated a pattern of habitual substance abuse and was unable to maintain stable housing.

58. Mother has proven herself unwilling or unable to meet her parental responsibilities.

***

60. . . . [T]here is a reasonable probability that the conditions that resulted in the child[ren]’s removal and/or continued placement outside the home will not be remedied. Mother has not provided the child[ren] with safe and stable housing, and she is not in a position to do so at this time. Mother has not remedied her substance abuse problems. . . .

61. Mother is not in a position to provide care for the child[ren]. It is unreasonable to require the child[ren] to wait for Mother to demonstrate an ability to meet [their] needs upon her release from incarceration.

62. There is a reasonable probability that the continuation of the parent/child relationship herein poses a threat to the

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1041 | October 16, 2020 Page 5 of 10 well-being of the child[ren]. Although Mother is currently incarcerated, she had not benefitted from services to address her substance abuse or lack of housing prior to her incarceration. Based on Mother’s habitual pattern of conduct, there is a substantial probability of future neglect if the petition for termination of parental rights is not granted.

Appealed Order p. 5. Mother now appeals.

Discussion and Decision [8] Our standard of review with respect to termination of parental rights

proceedings is well established. In considering whether termination was

appropriate, we neither reweigh the evidence nor assess witness credibility.

K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will

consider only the evidence and reasonable inferences that may be drawn

therefrom in support of the judgment, giving due regard to the trial court’s

opportunity to judge witness credibility firsthand. Id. Where, as here, the trial

court entered findings of fact and conclusions of law, we will not set aside the

findings or judgment unless clearly erroneous. Id. In making that

determination, we must consider whether the evidence clearly and convincingly

supports the findings, and the findings clearly and convincingly support the

judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

evidence that the child’s emotional and physical development are threatened by

the respondent parent’s custody.” Bester v. Lake Cty. Office of Family & Children,

839 N.E.2d 143, 148 (Ind. 2005) (internal quotations omitted).

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1041 | October 16, 2020 Page 6 of 10 [9] Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

parental rights for a CHINS must make the following allegations:

(A) that one (1) of the following is true:

(i) The child has been removed from the parent for at least six (6) months under a dispositional decree.

(ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court’s finding, the date of the finding, and the manner in which the finding was made.

(iii) The child has been removed from the parent and has been under the supervision of a local office or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child;

(B) that one (1) of the following is true:

(i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied.

(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1041 | October 16, 2020 Page 7 of 10 (iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of the child.

DCS must prove the alleged circumstances by clear and convincing evidence.

K.T.K., 989 N.E.2d at 1231.

[10] Mother primarily argues that the evidence does not support the trial court’s

conclusion that there is a reasonable probability that the conditions resulting in

the Children’s removal and continued placement outside of her care and

custody will not be remedied. The reason for the Children’s initial removal

from Mother’s care and custody was Mother’s ongoing substance abuse; the

reasons for their continued removal from Mother were Mother’s substance

abuse, instability, incarceration, and lack of participation with court-ordered

services.

[11] The record reveals that Mother had periods of compliance, especially early in

the CHINS case. But those periods of compliance were interspersed with, and

eventually overtaken by, drug use, criminal behavior, and, ultimately,

incarceration. See K.T.K., 989 N.E.2d at 1234 (focusing on mother’s “habitual

pattern of substance abuse and criminal conduct”). She repeatedly tested

positive for methamphetamine and never participated in substance abuse

treatment. During the CHINS case, Mother was arrested on two occasions for

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1041 | October 16, 2020 Page 8 of 10 serious felony charges (one of those occasions included felony neglect of a

dependent charges) and is currently serving a four-year sentence.

[12] Mother notes that she has been sober recently—because she has been

incarcerated. The trial court was not required to credit Mother for any sobriety

during her incarceration. See id. (holding that trial court “was within its

discretion to consider that the first eleven months of [mother’s] sobriety were

spent in prison where she would have not had access to any illegal substances,

nor be subjected to the type of stressors . . . that would normally trigger a desire

to pursue an escape from the pressures of everyday life that drugs often

provide”). Moreover, while it is true that Mother will receive substance abuse

treatment services once she is on probation, those services were available to her

through the CHINS case before her incarceration and she failed to participate.

[13] Mother’s substance abuse, criminal activity, and instability were a problem

throughout the years-long CHINS case, and after her initial period of

compliance, Mother showed no genuine indication that she wanted to try to

remedy those issues. Therefore, the trial court did not err by finding that DCS

proved by clear and convincing evidence that there is a reasonable probability

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1041 | October 16, 2020 Page 9 of 10 that the conditions resulting in the Children’s removal and continued placement

outside of her care and custody will not be remedied. 5

[14] The judgment of the trial court is affirmed.

Bailey, J., and Vaidik, J., concur.

5 Mother also argues that the trial court erred by finding that a continuation of the parent-child relationship poses a threat to the well-being of the Children. As the statutory elements are phrased in the disjunctive and we have already found the first prong met, we need not and will not discuss the second. I.C. § 31-35-2- 4(b)(2)(B). To the extent that Mother argues that DCS failed to meet the third prong—that the Children had twice been adjudicated CHINS in the past—DCS did not seek to terminate, and the trial court did not order termination, on the basis of this prong.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1041 | October 16, 2020 Page 10 of 10