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.)

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.
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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.
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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.
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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
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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).
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[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.
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(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
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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
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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.
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