In the Matter fo the Term. of the Parent-Child Rel. of N.Q., Je.Q., Ja.Q., and L.Q. and T.Q. and A.Q. v. Indiana Dept. of Child Services

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
JULIANNE L. FOX CHRISTINE REDELMAN
Evansville, Indiana ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana
FILED
May 16 2012, 9:25 am
IN THE CLERK
of the supreme court,
court of appeals and
tax court
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION )
OF THE PARENT-CHILD RELATIONSHIP OF )
N.Q., Je.Q., Ja.Q., and L.Q. (MINOR )
CHILDREN) and )
)
T.Q. (MOTHER) and A.Q. (FATHER), )
)
Appellants-Respondents, )
)
vs. ) No. 82A05-1109-JT-511
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Brett J. Niemeier, Judge
Cause Nos. 82D01-1012-JT-108, 82D01-1012-JT-109, 82D01-1012-JT-110, 82D01-1012-JT-111
May 16, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
T.Q. (“Mother”) and A.Q. (“Father”) (collectively, “the Parents”) appeal the trial
court’s denial of their motion to correct error/motion for relief from judgment following the
court’s order involuntarily terminating their parental rights to their children N.Q., Je.Q.,
Ja.Q., and L.Q. (collectively, “the Children”). The Indiana Department of Child Services
(“DCS”) admits of its own accord that it failed to prove one of the statutory prerequisites for
the termination of parental rights. Because such a failure constitutes fundamental error, we
reverse the termination order and remand for further proceedings.
Facts and Procedural History
The essential facts are these. On December 11, 2009, DCS removed the Children and
two siblings from the Parents’ home because of unsafe home conditions, medical issues, and
lack of supervision, among other reasons, and placed them in foster care. On December 15,
2009, DCS filed petitions alleging that all six children were children in need of services
(“CHINS”). The Parents denied the allegations, and the trial court held a factfinding hearing.
On April 13, 2010, the trial court entered orders adjudicating all six children as CHINS.
Indiana Code Section 31-34-19-1 provides that not more than thirty days after it finds
that a child is a CHINS, the court must complete a dispositional hearing to consider, among
other things, “[a]lternatives for the care, treatment, rehabilitation, or placement of the child”
and “[t]he necessity, nature, and extent of the participation by a parent … in the program of
care, treatment, or rehabilitation of the child.” The trial court held a dispositional hearing on
May 5, 2010, and the Children remained in foster care. The chronological case summaries
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indicate that the dispositional decrees were to be furnished to the trial court by DCS, but,
apparently as a result of an oversight, the decrees were not filed until February 14, 2011, and
were not entered in the court’s order book until March 16, 2011. The decrees are not in the
record before us.
On December 14, 2010, DCS filed petitions for the involuntary termination of the
Parents’ parental rights as to the Children. Those petitions are not in the record before us. A
hearing on the petitions was held over the course of several days between January and April
2011. The trial court ordered the parties to submit proposed findings of fact and conclusions
thereon. On July 13, 2011, the trial court issued an order granting the termination petitions.
The Parents filed a motion to correct error/motion for relief from judgment, which the trial
court denied. This appeal ensued. Additional facts will be provided as necessary.
Discussion and Decision
The Indiana Supreme Court has said,
The Fourteenth Amendment to the United States Constitution protects
the traditional right of parents to establish a home and raise their children. A
parent’s interest in the care, custody, and control of his or her children is
perhaps the oldest of the fundamental liberty interests. Indeed the parent-child
relationship is one of the most valued relationships in our culture.
In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009) (citations and quotation marks omitted).
“Because parents have a constitutionally protected right to establish a home and raise their
children, [DCS] must strictly comply with the statute terminating parental rights.” Platz v.
Elkhart Cnty. Dep’t of Pub. Welfare, 631 N.E.2d 16, 18 (Ind. Ct. App. 1994) (citations
omitted).
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Indiana Code Section 31-35-2-4(b) provides that a petition to terminate parental rights
must meet the following relevant requirements:
(2) The petition must allege:
(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six (6)
months under a dispositional decree.
(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;
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in
the child’s removal or the reasons for placement outside the home of
the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the parent-
child relationship poses a threat to the well-being of the child.
(iii) The child has, on two (2) separate occasions, been adjudicated a
child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of the child.
Ind. Code § 31-35-2-4(b). DCS must prove each and every element by clear and convincing
evidence. In re G.Y., 904 N.E.2d at 1261; Ind. Code § 31-37-14-2. If DCS fails to prove any
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one of the elements, then it is not entitled to a judgment terminating parental rights. In re
G.Y., 904 N.E.2d at 1261; see also Ind. Code § 31-35-2-8(b) (“If the court does not find that
the allegations in the petition are true, the court shall dismiss the petition.”).
Here, the trial court’s termination order contains the following relevant findings and
conclusions:
9. The Court now finds by clear and convincing evidence that the
allegations of the petition to terminate parental rights are true in that:
a. [The Children] have been removed from the care and custody of
their mother for at least six (6) months after the dispositional
decree.
b. There is a reasonable probability that the conditions that resulted
in the removal and the continued removal of [the Children] will
not be remedied in that, in part, the parents simply do not
understand what it takes to parent appropriately even after
having classes and instruction; the parents do not understand the
importance of cleanliness, and the parents do not have the
resources to provide the children the appropriate stability.
c. There is [a] reasonable probability that the continuation of the
parent-child relationship between [the Parents and the Children]
poses a threat to the well-being of [the Children] as, in part, the
parents are failing to raise the children in an appropriate
environment and are passing on unacceptable practices to these
children which wi[ll] stay with them for the rest of their lives
unless corrected. These skills are instrumental for the children’s
physical and mental health.
d. Termination of the parent-child relationship between [the
Children] and [the Parents is] in the [Children’s] best interests.
e. The plan of [DCS] for the care and treatment of [the Children]
upon termination of parental rights is adoption, which is
acceptable and satisfactory.
Appellants’ App. at 43-44.
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In their appellants’ brief, the Parents argue that DCS failed to present sufficient
evidence as to Indiana Code Section 31-35-2-4(b)(2)(B) and -(C). In its appellee’s brief,
DCS addresses Parents’ arguments but candidly acknowledges of its own accord that,
contrary to the trial court’s finding, the Children had not been removed from the Parents for
at least six months under a dispositional decree when the termination petitions were filed, as
required by Indiana Code Section 31-35-2-4(b)(2)(A)(i). DCS further concedes that it
apparently failed to plead in its petitions that the alternative elements listed in subparagraph
(A) had been satisfied. We appreciate DCS’s candor.
DCS acknowledges that this Court recently reversed a trial court’s order “terminating
a mother’s parental rights because the child in that case had not been removed from the
parent under a dispositional decree for the requisite six months.” Appellee’s Br. at 19 (citing
In re D.D., 962 N.E.2d 70 (Ind. Ct. App. 2011)). DCS says that “the present case presents
one slight difference from In re D.D., which is that in this case on the day of the dispositional
hearing, [the Parents] did sign participation plans.” Id. DCS does not explain, nor can we
discern, why this distinction should compel a different result. The Parents’ failure to raise
the lack of proof as to Indiana Code Section 31-35-2-4(b)(2)(A) before the trial court or in
their initial appellants’ brief is inconsequential. See In re D.D., 962 N.E.2d at 75 (“Failure to
ensure that [DCS] has fully complied with all of the conditions precedent to the termination
of parental rights ‘constitutes fundamental error.’”) (quoting In re L.B., S.C. & S.B., 616
N.E.2d 406, 407 (Ind. Ct. App. 1993), trans. denied).
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As we said in In re D.D., we are “keenly aware of the fact that the safety and well-
being of all [four] children hangs in the balance, and further delay in the final resolution of
the children’s respective cases is certainly regrettable. Nevertheless, [DCS] alleged, but
failed to prove removal according to the mandates of [Indiana Code Section] 31-35-2-
4(b)(2)(A).” Id. at 76. Consequently, we must reverse the trial court’s termination order and
remand for further proceedings consistent with this opinion. That said, our conclusion
“should in no way be construed as a comment upon the sufficiency of the evidence relating to
the remaining elements of the termination petition[s].” Id. at 75-76.
Reversed and remanded.
VAIDIK, J., and BRADFORD, J., concur.
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