by Lonnie Burton

On November 10, 2016, the Indiana Court of Appeals reversed a lower court's order terminating the parental rights of a mother who found herself serving a seven month jail sentence for a drug offense. The appellate court found the termination order was contradictory since the father's rights were not terminated and the mother and father were living together when the mother was released.

The mother, identified as H.S., and the father, G.S., had one child together, G.A.S. The mother also had one child from a previous relationship, A.W., and the entire family lived together. On March 18, 2014, the mother and father got into a fight while staying at a hotel and the police were called. The mother was arrested for possession of heroin, and the father for violating a restraining order the mother had taken out against him. The Department of Children's Services (DCS) was called in to take custody of the two children.

The mother received a suspended sentence but eventually was re-jailed and given a seven-month sentence after she violated the terms of her probation. The father, on the other hand, was released from jail that May and went to live with his mother, who had custody of the children. However, DCS had previously issued an order prohibiting the father from living with the children, and they were soon after placed in foster care.

DCS initiated parental rights termination proceedings against both parents, alleging their violent and volatile relationship, and the mother's drug use, made then unfit parents. The mother was ordered to take several self-help classes, which she did during her incarceration.

At the time of the hearing, the mother was still in jail. The court terminated her parental rights, but not the father's. Both parents testified that when she is released they will resume living together, yet despite this fact the court awarded custody of the children to the father, and terminated the mother's parental rights. The mother appealed.

The Indiana Court of Appeals reversed the trial court on two grounds. First, the court ruled that the termination order was "incongruous and antithetical to the trial court's findings that the conditions that resulted in the removal of A.W. and G.A.S. will not be remedied." The appellate court reasoned that since the court knew the children would be in their father's care and that the mother would also be living in the same household, awarding custody of the children to the father was in effect awarding virtual custody to the mother. Thus, terminating her rights made no sense.

Second, the court of appeals said that the trial court failed to take into account the mother's efforts in jail to better herself. The court found that while incarcerated the mother participated in and completed individual therapy, AA meetings, parenting classes, and family classes.

"[W]hen we look at the Mother's history against her efforts while in prison," the court wrote, "coupled with the fact that she is presumably living with the Father and G.A.S., we are left with only one conclusion: DCS did not prove by clear and convincing evidence" that termination of the mother's parental rigths was warranted.

The trial court's order was thus reversed, and the mother's parental rights reinstated. See: In re the Termination of the Parent-Child Relationship of A.E. and G.S.; H.S. (Mother), Appellant-Respondent v. The Indiana Department of Child Services, No. 54A01-1604-JT-1090 (C.A. In. 2016).

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