K.W. v. Ind. Dep't of Child Servs. (In re Termination the Parent-Child Relationship of A.S.)

• Decision Date: 23 September 2014
• Docket Number: No. 48A02–1310–JT–913.,48A02–1310–JT–913.
• Citation: 17 N.E.3d 994
• Parties: In the Matter of the Termination of the Parent–Child Relationship of A.S. and C.S. (Minor children); K.W. (Mother) and B.S. (Father), Appellants–Defendants, v. The Indiana Department of Child Services, Appellee–Plaintiff.
• Court: Indiana Appellate Court

17 N.E.3d 994

In the Matter of the Termination of the Parent–Child Relationship of A.S. and C.S. (Minor children);K.W. (Mother) and B.S. (Father), Appellants–Defendants

v.The Indiana Department of Child Services, Appellee–Plaintiff.

No. 48A02–1310–JT–913.

Court of Appeals of Indiana.

Sept. 23, 2014.

David W. Stone, Anderson, IN, Attorney for Appellant, K.W.

John T. Wilson, Anderson, IN, Attorney for Appellant, B.S.

Gregory F. Zoeller, Attorney General of Indiana, Robert J. Henke, Christine Redelman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

PYLE

, Judge.

STATEMENT OF THE CASE

B.S. (“Father”) and K.W. (“Mother”) (collectively, “the parents”) appeal the trial court's termination of their parental rights to their minor children, A.S. and C.S. (collectively, “the children”). The parents argue that there was not sufficient evidence to support the termination because some of the trial court's findings of fact were erroneous, and because the trial court's findings of fact did not support its conclusions. We conclude that three of the trial court's findings of fact were erroneous; nevertheless, even without these erroneous findings, the Department of Child Services (“DCS”) presented sufficient evidence to support the termination of the parents' parental rights.

We affirm.

ISSUE

Whether DCS produced sufficient evidence to support the termination of the parents' parental rights to the children.

FACTS

The parents have two minor children together, A.S. and C.S. A.S. was born in May of 2009, and C.S. was born in July of 2010. Mother also had a daughter, M.R., who was the half-sister of the children, and a son, A.W., who is their half-brother.¹

In late February of 2011, the parents and the children were forced to move in with Mother's aunt as a result of a house fire. Three weeks later, on March 12, 2011, three-year-old M.R. took her great aunt's prescription medication out of her purse and swallowed it. Mother noticed that M.R.'s behavior became abnormal and suspected that M.R. had gotten into the medication, but she did not seek medical treatment. Eventually, Father took M.R. to the emergency room, but she went into cardiac arrest

and passed away. Following M.R.'s death, DCS conducted an investigation and substantiated death due to neglect and medical neglect against Mother because Mother had suspected that M.R. had gotten into her great aunt's medication and did not seek medical treatment.

On March 14, 2011, an unidentified person contacted DCS with information that Mother and Father were staying in a hotel with their children and were planning to flee the state. Family Case Manager Russell Beatty visited the family at their hotel and determined that they were not attempting to flee the state; they merely did not want to stay in the aunt's house after the death of their daughter. However, during his visit, Mother and Father admitted that they frequently used marijuana, and Father admitted that he sometimes took some of Mother's prescription hydrocodone

to treat tooth pain. As a result, DCS tested them for illegal drugs, and they both tested positive for marijuana. In addition, neither Mother nor Father were sure where they would be living in the future.

Due to concerns over the circumstances of M.R.'s death, Mother and Father's drug use, and their uncertain future housing, DCS removed one-year old A.S. and eight-month-old C.S. from the parents and placed them in foster care. Citing the same reasons, DCS filed petitions on March 15, 2011, alleging that both children were children in need of services (“CHINS”). The parents admitted to the allegations, and the trial court adjudicated the children as CHINS on June 15, 2011.

Subsequently, on September 29, 2011, the trial court issued a dispositional order. It ordered the parents to, among other requirements, participate in supervised visitation with the children; maintain appropriate housing and an adequate income; complete substance abuse evaluations, psychological evaluations, and parenting assessments and follow any resulting recommendations; submit to random drug screens; and participate in individual counseling and follow any resulting recommendations.

Initially, the parents were compliant with their court-ordered services. They each completed two substance abuse evaluations—in November 2011 and March 2012. The evaluator for the November 2011 substance abuse evaluations concluded that substance abuse was not a concern for either parent.² However, on May 1, 2012, Father tested positive for hydrocodone

, which he said that he took to treat sore teeth because he could not afford the dental work that he needed. Mother had a prescription for hydrocodone, but she also occasionally tested positive for levels higher than her prescribed amount.

Other than their drug use, the parents made progress on the remainder of their court-ordered services. They completed psychological evaluations on November 16, 2011 and parenting assessments on March 20, 2012. As a result of their psychological evaluations, the service providers recommended that both parents complete individual therapy. The results of their parenting assessments were positive, and on November 18, 2011, the parents completed the Homebuilder's program, which is a program designed to improve parenting. They also consistently visited the children throughout the CHINS proceedings.

As a result of the parents' substantial compliance with their court-ordered services, DCS placed the children on a trial home visit with the parents starting on September 21, 2012. The visit ended early on November 7, 2012, because Mother tested positive for amphetamines and cocaine. DCS next placed the children on a trial home visit with only Father on December 3, 2012. This second trial visit ended after three days because Father tested positive for cocaine.³

Subsequently, on January 7, 2013, DCS filed petitions to terminate the parents' parental rights to both of the children. DCS also referred the parents to continue their services. Father began group therapy at the Crestview Center (“Crestview”), but he only attended one or two of those meetings and met with his group's therapist once individually. Father then requested a referral for treatment at Aspire, a community mental health center. He completed the substance abuse evaluation at Aspire and attended group therapy there twice a week for a month. However, he did not attend the other eight weeks of the group therapy program, and Aspire discharged him for non-attendance. Father never contacted the family case manager about continuing treatment elsewhere.

In terms of individual counseling, Father met with a therapist, Phil Taggart (“Taggart”), from June or July of 2012 until the termination proceedings in August 2013. Father consistently attended meetings with Taggart except for a one-month period when he was too depressed to meet. He also could not meet with Taggart during the month prior to the termination hearing because he was incarcerated for failing to attend a child support hearing for another child.

Although DCS referred Mother to Crestview, she never sought treatment there. She completed a substance abuse evaluation and mental health assessment at Aspire in March of 2013. However, Aspire discharged her from the program because she did not follow up on the evaluation. Mother subsequently requested and received another referral for Aspire in May of 2013. That month, she completed a second evaluation and assessment and participated in both group and individual therapy. In total, however, she attended only four meetings. She completed a session the day before the termination hearing but had not otherwise attended a meeting in the previous three or four weeks. A therapist at Aspire scheduled two individual sessions with Mother, but she did not show up for either session.

In terms of individual counseling, Mother also met with Father's therapist, Taggart, for six to eight sessions but then told him that she wanted a different therapist. After DCS assigned her a new therapist, she stopped attending therapy. She later testified that she stopped because she had given up hope of getting her children back. She also testified that she was afraid counseling was not enough and that she needed in-patient treatment or she might harm herself or someone else. She was worried, though, that if she sought in-patient treatment, DCS would use it against her as a reason to terminate her parental rights.

Starting in August 2012, Mother and Father participated in home case management with Jennifer Landis (“Landis”), a family consultant, but Landis eventually had to close the parents' case management for non-compliance. There were times when Landis would arrive at the parents' home for a scheduled visit, and no one would answer the door. On some of these occasions, she would later find out that the parents had still been asleep. By the end of May or June of 2013, Landis required the parents to call her before 9 a.m. on the day of each appointment if they did not want her to consider the visit a no-show. When Landis eventually closed the parents' case, neither of them requested to start case management again.

During this time, Landis also supervised the parents' visitation with the children. The parents consistently attended visitation, but they were late—sometimes by as much as thirty minutes or an hour—so many times that Landis had to put a fifteen-minute time limit on the amount of time she would wait for them before canceling. Landis observed that the children seemed “very anxious” if the parents were late. (Tr. 149–50). She had to stop telling the children that the parents were going to visit so that they would not be disappointed if she had to cancel the visitation. The parents did not become timelier once she instituted the fifteen-minute limit.

Throughout the CHINS and termination proceedings, the parents' employment was inconsistent. Mother was unemployed from the time when DCS filed the ...