Parent-Child Relationship of L.B. v. Morgan County Department of Public Welfare , 1993 Ind. App. LEXIS 782 ( 1993 )

SHIELDS, Judge.

S.B. appeals the involuntary termination of her parental rights as to her children, L.B. and S.C.

We reverse.

ISSUE

S.B. raises two issues for our review; however we raise sua sponte an issue which constitutes fundamental error and is dispositive of this appeal: Did the Morgan County Department of Public Welfare properly plead and prove the elements of IC 31-6-5-4(c) (1992 Supp.)?

FACTS ¹

S.B. is the biological mother of S.C., born October 28, 1986, and LB., born March 11, 1988. Social workers from the Morgan County Department of Public Welfare (DPW) visited the family home after a child molesting complaint was filed in September, 1988. They found the home unsanitary and unsafe, and the children had head lice and were dirty,. On November 22, 1989, the DPW obtained a disposition decree which removed the children from the home.

On April 26, 1990, the DPW filed a petition to terminate parental rights. After a termination hearing at which several witnesses testified concerning the physical, mental, and emotional state of the children and S.B., the trial court terminated the parent-child relationship. S.B. appeals.

DISCUSSION

The DPW had the burden of pleading and proving each element of IC 81-6-5-4(c) (1992 Supp.), the parental termination statute, by clear and convincing evidence. Shaw v. Shelby County Dept. of Public Welfare (1992), Ind.App., 584 N.E.2d 595, 597. One such condition precedent to the trial court's authority to terminate parental rights is that "the child has been removed from the parent for at least six (6) months under a dispositional decree." IC 81-6-5-A4(c)(1). The constitutionally protected right of parents to establish a home and raise their children, see, e.g., Skinner v. Oklahoma (1942), 316 U.S. 535, 62 S.Ct. 1110, 86 L Ed. 1655; Pierce v. Society of Sisters (1925), 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070; Shaw v. Shelby County Dept. of Public Welfare (1992), 584 N.E.2d 595, mandates that the failure of a trial court to require compliance with any condition precedent to the termination of this right constitutes fundamental error which this court must address sua sponte.

In the instant case, the trial court specifically found "[that a Dispositional Decrée was entered in the Child in Need of Services case on November 22, 1989." Record at 68. The record reveals that the Verified Petition to Involuntarily Terminate Parent-Child Relationship Pursuant to IC 81-6-5-4 was filed on April 26, 1990, five months and four days later. Record at 3; Record at 75. Thus the record leads to the inescapable conclusion that the DPW totally failed to meet the statutory mandate prior to initiating the instant proceeding. Indeed, the trial court's Judgment and Order Involuntarily Terminating Parental Rights, in addition to reciting the date of the dispositional decree, asserts only that "the children ... have been removed from the home for a period exceeding six months." Record at 66.

The judgment of the trial court terminating S.B.'s parental rights is erroneous.²

Judgment reversed.

MILLER, J., concurs. CONOVER, J., dissents, with separate opinion.

1 . We note at the outset that the statement of facts in S.B.'s brief does not follow a narrative formula as required by Ind.Appellate Rule 8.3(A)(5); instead, it consists of a description of each witness's testimony. This court has stated repeatedly that our appellate rules contemplate a narrative statement of facts, and a summary of witness testimony is not acceptable under App.R. 8.3(A)(5). See, e.g., Hoover v. State (1991), Ind.App., 582 N.E.2d 403, 405.

2 . This decision does not impact upon the validity of the dispositional order, nor does it preclude a subsequent, but timely, proceeding.