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In re Termination of Parent-Child Relationship of Bi.B.

Supreme Court of Indiana

February 17, 2017

In the Matter of the Termination of the Parent-Child Relationship of Bi.B. and Br.B., D.B. and V.G., Appellants (Defendants below),
v.
Indiana Department of Child Services, Appellee (Plaintiff below).

         Appeal from the Montgomery Circuit Court, Nos. 54C01-1510-JT-246 through 54C01-1510-JT-250 The Honorable Harry A. Siamas, Judge

         On Petition to Transfer from the Indiana Court of Appeals, No. 54A01-1603-JT-607

          ATTORNEYS FOR APPELLANTS Brian A. Karle Ball Eggleston, PC Lafayette, Indiana Mark Small Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Robert J. Henke Abigail R. Recker Deputy Attorneys General Indianapolis, Indiana

          Rush, Chief Justice.

         Few liberties are as central to our society as the right of parents to raise their children. Our General Assembly has thus set a high bar for terminating parental rights-requiring a termination petition to allege four defined elements and commanding dismissal when DCS fails to prove each element by clear and convincing evidence.

         The first required element establishes three waiting periods to give parents time to reunify with their children, and bars DCS from seeking termination until one of those three periods has passed. Here, DCS failed to allege the only one of those waiting periods that had in fact passed- that Father's daughters had been removed from him for at least six months under a dispositional decree. Finding this missing element fatal to DCS's petitions to terminate Father's parental rights, we reverse and remand.

         Facts and Procedural History

         D.B. (Father) and V.G. (Mother) lived in Montgomery County with five young children: their two daughters, Bi.B. and Br.B., and Mother's three sons from a prior relationship. In April 2014, the Indiana Department of Child Services (DCS) learned that the parents were using methamphetamine and leaving the children unsupervised in their trash-ridden house. Soon after, on DCS's petitions, the court found that the children were in need of services (CHINS).

         Then on July 14, 2014, DCS removed the children due to the parents' domestic violence, lack of supervision, and continued methamphetamine use. The next month, the trial court's modified dispositional order approved that removal and required the parents to participate in various services, including drug treatment and supervised visitation. But their participation in services was sporadic, and on October 9, 2015, DCS petitioned for termination of parental rights (TPR).

         DCS's petitions regarding Bi.B. and Br.B. addressed, among other things, the statutory requirement that at least one of three waiting periods had passed. Specifically, DCS alleged that the second and third waiting periods applied:

(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 county office of family and children 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.

         DCS did not, however, allege the first waiting period applied-that "[t]he child has been removed from the parent for at least six (6) months under a dispositional decree." Ind. Code § 31-35-2-4(b)(2)(A)(i) (Supp. 2012).

         At the consolidated evidentiary hearing on the petitions, Father argued that DCS failed to prove the two periods it alleged and failed to allege the one period it could have proved. First focusing on subsection (iii), he argued that DCS filed the petitions five days short of the fifteen-month anniversary of the girls' removal-noting the girls were removed on July 14, 2014, and the petitions were filed on October 9, 2015. And Father added that DCS failed to allege the only applicable statutory waiting period-that the girls had been removed from him for at least six months under a dispositional decree. Nonetheless, the trial court granted DCS's termination petitions, expressly finding that DCS proved both the six-month and fifteen-month waiting periods.

         Father and Mother appealed termination of their rights as to their daughters, both parents arguing DCS failed to allege an applicable waiting period, and Father also arguing insufficient evidence supported termination. The Court of Appeals affirmed in a unanimous opinion, recognizing that neither of the waiting-period allegations in the petitions were true, but finding the error harmless because the parents showed no prejudice. D.B. v. Ind. Dep't of Child Servs., 61 N.E.3d 364, 372 (Ind.Ct.App. 2016). It then held that ample evidence supported a reasonable probability that the conditions resulting in the girls' removal would not be remedied. Id. at 375.

         Only Father sought transfer-and only as to DCS failing to prove the alleged waiting periods. We granted his petition, vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).[1]

         Standard ...


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