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),
Indiana Department of Child Services, Appellee (Plaintiff below).
from the Montgomery Circuit Court, Nos. 54C01-1510-JT-246
through 54C01-1510-JT-250 The Honorable Harry A. Siamas,
Petition to Transfer from the Indiana Court of Appeals, No.
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
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.
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.
and Procedural History
(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).
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
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.
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).
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.
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.
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