                                                                               FILED
                                                                         Nov 10 2016, 8:38 am

                                                                               CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Ryan W. Tanselle                                          Gregory F. Zoeller
Capper Tulley & Reimondo                                  Attorney General of Indiana
Brownsburg, Indiana
                                                          Robert J. Henke
                                                          Deputy Attorney General

                                                          David E. Corey
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              November 10, 2016
Parent-Child Relationship of                              Court of Appeals Case No.
A.W. and G.S.:                                            54A01-1604-JT-1090
                                                          Appeal from the Montgomery
                                                          Circuit Court
H.S. (Mother),
                                                          The Honorable Harry A. Siamas
Appellant-Respondent,
                                                          Trial Court Cause No.
        v.                                                54C01-1508-JT-187
                                                          54C01-1508-JT-188

The Indiana Department of
Child Services,
Appellee-Petitioner.



Vaidik, Chief Judge.



Court of Appeals of Indiana | Opinion 54A01-1601-JT-1090 | November 10, 2016                      Page 1 of 15
                                           Case Summary
[1]   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.

[2]   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.

      Court of Appeals of Indiana | Opinion 54A01-1601-JT-1090 | November 10, 2016   Page 2 of 15
                             Facts and Procedural History
[3]   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.

[4]   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.

[5]   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


      Court of Appeals of Indiana | Opinion 54A01-1601-JT-1090 | November 10, 2016   Page 3 of 15
      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.

[6]   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.

[7]   On August 20, 2015, DCS filed a Petition for Involuntary Termination of

      Parental Rights, requesting the termination of the parent-child relationship of

      Court of Appeals of Indiana | Opinion 54A01-1601-JT-1090 | November 10, 2016   Page 4 of 15
      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, 2016.1

[8]   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 to drugs and that she had been sober for ten

      months, attending bi-weekly AA meetings while in prison. Mother also stated

      that she had completed intensive outpatient substance-abuse treatment.

[9]   In addition to her bi-weekly AA meetings, Mother had participated in weekly

      mental-health counseling—she was diagnosed with post-traumatic stress




      1
       Mother testified that this would be her release date, and the Indiana Department of Correction’s Offender
      Search shows that Mother was in fact released on this date. Ind. Dep’t of Correction, Offender Search,
      http://www.in.gov/apps/indcorrection/ofs/ofs (last visited Oct. 27, 2016).

      Court of Appeals of Indiana | Opinion 54A01-1601-JT-1090 | November 10, 2016                    Page 5 of 15
       disorder, borderline personality disorder, and ADHS (severe adult ADHD)—

       two parenting classes, and a family class. Mother received authorization for

       work duty and was one of two prisoners given clearance to clean the

       superintendent’s and assistant superintendent’s offices. Mother stated that the

       only time she did not participate in services while incarcerated was when she

       was at Rockville because “it’s intake, you’re not allowed to, there are no

       programs available . . . .” Tr. Vol I. p. 72.

[10]   Mother continued to have a relationship with A.W. and G.A.S. after their

       removal in March 2014. Before her incarceration in May 2015, she maintained

       contact with her children through visitation and phone calls. After her

       incarceration, Mother continued to see her children regularly when the foster

       mother brought them to visit in prison. However, Mother was unable to

       continue her phone calls with A.W. and G.A.S. Father testified that Mother

       called multiple times from prison during his visitation time in an effort to speak

       with the children, but DCS prevented Mother from speaking with them.


[11]   Mother told the court that she and Father are still married, have violated no-

       contact orders because they are married, and intend to stay together once

       Mother is released from prison. In response to why she violated the no-contact

       order, Mother stated, “We kept our distance for quite some time, but you’ve got

       to understand that we are married and we have children together . . . . [Y]es I

       had contact with my husband, that’s my husband.” Id. at 62. She went on to

       say that it is important for her to get out of prison “[t]o rehabilitate my life and

       reunify my family. You know get to the steps to be able to become the mother

       Court of Appeals of Indiana | Opinion 54A01-1601-JT-1090 | November 10, 2016   Page 6 of 15
       necessary for my children to have, my children deserve.” Id. at 67. Mother

       also told the court that upon release she was prepared to reengage with DCS

       and its service providers.

[12]   Regarding the children, the foster mother indicated that both A.W. and G.A.S.

       are “very closely bonded” and that in her opinion it would be in their best

       interests to remain together. Id. at 154. Furthermore, the FCM stated that it

       would “be important” for the children to remain together. Id. at 169. Father

       desires to keep his family intact. “I wish nothing more than to share these

       children with my wife . . . . I love my wife and I want my wife to come home.”

       Tr. Vol. II p. 40-41. He went on to say, “I don’t want my children split up. I

       look at [A.W.] just like she’s my daughter . . . .” Id. at 49. Father also

       reiterated the foster mother’s and the FCM’s testimony that A.W. and G.A.S.

       would “hurt dearly” if they were separated. Id. Father, however, did state that

       he is prepared to separate from Mother if she relapses and uses drugs again:

       “[S]he knows, I’ve talked to her and told her there will be no drug use allowed

       around these children. There will be no more mistakes.” Id. at 43.


[13]   The trial court entered its Findings of Fact, Conclusions of Law and Judgment

       on March 29, 2016. The trial court did not terminate Father’s rights to G.A.S.,

       concluding that DCS had not proven by clear and convincing evidence that

       there was a reasonable probability that the conditions that resulted in G.A.S.’s

       removal from Father will not be remedied and that termination of the parent-

       child relationship between G.A.S. and Father is not in G.A.S.’s best interests.

       The court did terminate Mother’s rights to both A.W. and G.A.S., finding that

       Court of Appeals of Indiana | Opinion 54A01-1601-JT-1090 | November 10, 2016   Page 7 of 15
       DCS had proven by clear and convincing evidence that there was a reasonable

       probability that the conditions that resulted in A.W.’s and G.A.S.’s removal

       from Mother’s care will not be remedied and that termination of the parent-

       child relationship between Mother and both of her children is in the best

       interests of the children. The court’s order did not preclude Mother from seeing

       Father or G.A.S. J.W.’s parental rights to A.W. were also terminated.2 The

       court noted that its order “might well result in [A.W.] and [G.A.S.] being

       separated as siblings and that this important sibling bond may be broken.”

       Appellant’s App. p. 20. Nevertheless, the court concluded that DCS’s plan to

       have A.W. adopted by her foster parents is satisfactory.

[14]   Mother appeals.3



                                      Discussion and Decision
[15]   When reviewing the termination of parental rights, we do not reweigh the

       evidence or judge witness credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind.

       2013). Rather, we consider only the evidence and reasonable inferences that

       are most favorable to the judgment of the trial court. Id. When a trial court has

       entered findings of fact and conclusions, we will not set aside the trial court’s

       findings or judgment unless clearly erroneous. Id. To determine whether a



       2
           J.W. does not appeal the termination of his parental rights to A.W.
       3
        DCS did not appeal the trial court’s denial of the petition with regard to Father’s parental rights to G.A.S.,
       nor did DCS take issue with that denial in response to Mother’s appeal. Accordingly, the trial court’s
       decision regarding Father’s rights is no longer at issue.

       Court of Appeals of Indiana | Opinion 54A01-1601-JT-1090 | November 10, 2016                        Page 8 of 15
       judgment terminating parental rights is clearly erroneous, we review whether

       the evidence supports the trial court’s findings and whether the findings support

       the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).


[16]   A petition to terminate parental rights must allege, among other things:


               (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.

                        (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.

       Ind. Code § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

       clear and convincing evidence. In re K.T.K., 989 N.E.2d at 1231. “Clear and

       convincing” is a standard of proof that lies between the “preponderance of the

       evidence” and “beyond a reasonable doubt” standards. J.C.C. v. State, 897

       N.E.2d 931, 934 (Ind. 2008). The clear-and-convincing standard is not a

       burden of convincing the court that the facts presented are certainly true, almost

       certainly true, or true beyond a reasonable doubt. Id. However, this standard is


       Court of Appeals of Indiana | Opinion 54A01-1601-JT-1090 | November 10, 2016   Page 9 of 15
       greater than a burden of convincing the court that the facts are more probably

       true than not. Id.


[17]   Involuntary termination of parental rights is “the most extreme measure that a

       court can impose and is designated only as a last resort when all other

       reasonable efforts have failed.” In re N.Q., 996 N.E.2d 385, 391 (Ind. Ct. App.

       2013). The purpose of terminating parental rights is not to punish the parent

       but rather to protect the children. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct.

       App. 2004).

[18]   Mother argues that DCS did not show by clear and convincing evidence that

       there is a reasonable probability that the conditions that led to the removal of

       A.W. and G.A.S. would not be remedied. To determine whether the

       conditions that resulted in the children’s removal will not be remedied, the trial

       court engages in a two-step analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014).

       The court first identifies the conditions that led to removal and then determines

       whether there is a reasonable probability that those conditions will not be

       remedied. Id. The second step requires trial courts to judge a parent’s fitness at

       the time of the termination proceeding, taking into consideration evidence of

       changed conditions, and balancing any recent improvements against “habitual

       patterns of conduct to determine whether there is a substantial probability of

       future neglect or deprivation.” Id. Trial courts have discretion to weigh a

       parent’s prior history more heavily than efforts made only shortly before

       termination, and the court may find that a parent’s past behavior is the best

       predictor of her future behavior. Id.

       Court of Appeals of Indiana | Opinion 54A01-1601-JT-1090 | November 10, 2016   Page 10 of 15
[19]   We conclude that DCS did not prove this element by clear and convincing

       evidence. The children were initially removed from Mother because of

       Mother’s incarceration and drug use. Given the circumstances, the fact that the

       trial court terminated Mother’s rights, but not Father’s rights to G.A.S.,

       undermines the court’s finding that the conditions leading to the removal of

       A.W. and G.A.S. will not be remedied. While the Indiana Code does not

       prohibit terminating only one parent’s rights to a child, terminating only one

       parent’s rights here is incongruous. Mother was scheduled to be released from

       prison seven months after the termination hearing. Mother and Father remain

       married and both testified to their intent to stay together. In other words, after

       Mother’s release from prison, the parents would live together with G.A.S. DCS

       case workers testified that they had no concerns with Mother’s abilities as a

       parent but had serious reservations about Mother and Father reuniting. The

       CASA told the court, “[T]he parents[‘] relationship has clearly historically been

       toxic and so that’s a major concern whether or not they can work things out,

       whether or not through therapy, couples counseling, domestic violence

       counseling, whether or not they can achieve stability for their children.” Tr.

       Vol. II p. 66. Despite these concerns, the trial court did nothing to prevent

       Mother and Father from living together with G.A.S. Allowing Mother to live




       Court of Appeals of Indiana | Opinion 54A01-1601-JT-1090 | November 10, 2016   Page 11 of 15
       with G.A.S. supports the conclusion that DCS has failed to prove by clear and

       convincing evidence that Mother’s drug problem is unlikely to be remedied.4

[20]   Additionally, we agree with Mother that her situation is factually similar to that

       of the father in In re K.E., 39 N.E.3d 641 (Ind. 2015). In K.E., father showed at

       the termination hearing that he had made substantial efforts toward bettering

       his life while in prison by completing twelve classes, including a responsible

       parenting class, and attending AA and NA meetings. Father indicated that he

       was done using drugs and would like to receive additional services from DCS

       upon release. Our Supreme Court held that DCS did not prove by clear and

       convincing evidence that father could not remedy the conditions for K.E.’s

       removal:

                Despite Father’s criminal and substance abuse history, his recent
                improvements at the time of the termination hearing were not
                balanced against his habitual patterns of conduct. Given the
                substantial effort that Father is making to improve his life . . . it
                was not proven by clear and convincing evidence that Father
                could not remedy the conditions for K.E.’s removal. . . . [T]here
                is seemingly nothing else that Father could have been doing to
                demonstrate his dedication to obtaining reunification.




       4
         If Mother continues to use drugs then Father has a duty to separate himself from Mother and keep her away
       from G.A.S. Father’s duty is the same regardless of whether Mother’s rights are terminated. If Mother
       relapses and Father fails to separate himself and G.A.S. from her, then his rights to G.A.S. might be in
       jeopardy. This Court has consistently held that a parent’s failure to protect his child from a third party is
       grounds for termination. See In re A.H., 751 N.E.2d 690, 699 (Ind. Ct. App. 2001), trans. denied; Alexander v.
       LaPorte Cty. Welfare Dep’t, 465 N.E.2d 223, 226 (Ind. Ct. App. 1984); In re Perkins, 352 N.E.2d 502, 509 (Ind.
       Ct. App. 1976); see also Ind. Code § 31-34-1-2 (“A child is a [CHINS] if . . . the child’s physical or mental
       health is seriously endangered due to injury by the act or omission of the child’s parent, guardian, or
       custodian . . . .”).

       Court of Appeals of Indiana | Opinion 54A01-1601-JT-1090 | November 10, 2016                    Page 12 of 15
       Id. at 649.


[21]   Just as the Court found in K.E., there is “seemingly nothing else” that Mother

       could have done to demonstrate her commitment to becoming a better person

       and better parent, and obtaining reunification with her children. At the time of

       the termination hearing, Mother had made significant progress in dealing with

       her addiction. During her recent incarceration, Mother participated in and

       completed individual therapy, AA meetings, parenting classes, and family

       classes. These programs are almost identical to the services the trial court

       ordered for Mother in its July 2014 dispositional order. Mother also

       participated in early-release classes and was one of two prisoners given the

       responsibility to clean the superintendent’s and assistant superintendent’s

       offices. Further, Mother has been released and is presumably living with

       G.A.S. and Father.

[22]   There is some evidence in the record to support the trial court’s conclusion to

       terminate Mother’s parental rights—e.g. positive drug screens and probation

       being revoked twice. However, when we look at Mother’s history against her

       efforts while in prison, coupled with the fact that she is presumably living with

       Father and G.A.S., we are left with only one conclusion: DCS did not prove by

       clear and convincing evidence that there is a reasonable probability that the




       Court of Appeals of Indiana | Opinion 54A01-1601-JT-1090 | November 10, 2016   Page 13 of 15
       conditions that resulted in the removal of G.A.S. and A.W. would not be

       remedied.5

[23]   One final matter convinces us that this family deserves another chance at

       reunification. The trial court has essentially allowed Mother, Father, and

       G.A.S. to reunite but has left A.W., who by all accounts is seen as Father’s

       daughter, separated from her family. DCS must prove by clear and convincing

       evidence that termination of Mother’s parental rights is in the best interests of

       her children. In re J.C., 994 N.E.2d 278, 289-90 (Ind. Ct. App. 2013), reh’g

       denied. To determine what is in the best interests of the children, the court must

       look at the totality of the circumstances. In re A.G., 45 N.E.3d 471, 479 (Ind.

       Ct. App. 2015), trans. denied.


[24]   Here, the FCM and the foster mother testified that it was in A.W.’s and

       G.A.S.’s best interests to remain together. Father testified at the March hearing

       that A.W. and G.A.S. have been together their entire lives and would “hurt

       dearly” if they were separated. Tr. Vol. II p. 49. Father also stated that he

       understood that he had no legal rights to A.W., but stated, “I look at [A.W.]

       just like she’s my daughter . . . I want them both back.” Id. Father went on to

       say that “I do not believe it is in their best interests to be split up at this point in

       time.” Id. The trial court even called the children’s relationship with one




       5
        DCS attempts to distinguish K.E. by pointing out that unlike K.E.’s father, Mother’s crimes were
       committed after giving birth to A.W. and G.A.S. We are not convinced that this factor was the gravamen of
       our Supreme Court’s decision in K.E.

       Court of Appeals of Indiana | Opinion 54A01-1601-JT-1090 | November 10, 2016                 Page 14 of 15
       another an “important sibling bond . . . .” Appellant’s App. p. 30. Despite all

       of this testimony, the trial court still concluded that A.W. and G.A.S. should be

       separated; A.W. is to be placed for adoption, and G.A.S. is to be returned to the

       care of his Father. We conclude that DCS has failed to prove by clear and

       convincing evidence that terminating Mother’s rights to A.W. and G.A.S., thus

       separating the children, is in their best interests.

[25]   Reversed.

       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Opinion 54A01-1601-JT-1090 | November 10, 2016   Page 15 of 15
