Term. of the Parent-Child Rel. of K.E., and T.E. and J.E., T.E. and J.E. v. Indiana Dept. of Child Services

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
NANCY A. McCASLIN ASHLEY MILLS COLBORN
McCaslin & McCaslin Indiana Department of Child Services
Elkhart, Indiana Elkhart County Office
Attorney for Mother Elkhart, Indiana
ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana
IN THE FILED
Mar 08 2011, 9:25 am
COURT OF APPEALS OF INDIANA
In the Matter of the Termination of the Parent-Child )
) CLERK
of the supreme court,
court of appeals and
tax court
Relationship of K.E., minor child, and )
T.E., mother, and J.E., father )
)
T.E. and J.E.. )
)
Appellants-Respondents, )
)
vs. ) No. 20A05-1104-JT-206
)
INDIANA DEPARTMENT OF CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE ELKHART CIRCUIT COURT
The Honorable Deborah A. Domine, Juvenile Magistrate
The Honorable Terry C. Shewmaker, Judge
Cause No. 20C01-1012-JT-86
March 8, 2012
OPINION - FOR PUBLICATION
Kirsch, Judge
T.E. (“Mother”) and J.E. (“Father”) appeal the involuntary termination of their
respective parental rights to their child, K.E., contending, inter alia, that the trial court’s
judgment terminating their respective parental rights must be reversed because the
Indiana Department of Child Services failed to satisfy the statutory mandates of Indiana
Code section 31-35-2-4(b)(2)(A).
We reverse and remand.
FACTS AND PROCEDURAL HISTORY
Mother and Father are the biological parents of K.E., born in March 2010. The
facts most favorable to the trial court’s judgment reveal that the local Elkhart County
Office of the Indiana Department of Child Services (“ECDCS”) took two-month-old K.E.
into emergency protective custody in May 2010 after substantiating reports of neglect and
drug use in the family home. Meanwhile, ECDCS filed a petition alleging K.E. was a
CHINS. An evidentiary hearing on the CHINS petition was held in June 2010. During
the hearing, Mother admitted to the allegations contained in the petition, including the
allegations that she had a significant history of substance abuse and that K.E. had been
exposed to illegal substances while in her care. Father likewise admitted to the
allegations of the CHINS petition, including the allegation that he was currently
incarcerated and unavailable to care for K.E. The trial court thereafter adjudicated K.E. a
CHINS.
Following a dispositional hearing, the trial court entered an order formally
removing K.E. from both Mother’s and Father’s respective care and making K.E. a ward
of ECDCS. The trial court’s dispositional order, dated July 13, 2010, also directed
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Mother and Father to successfully complete a number of tasks and services designed to
help improve their respective parenting abilities and facilitate reunification of the family.
On December 30, 2010, ECDCS filed its “Petition For The Involuntary
Termination Of The Parent-Child Relationship.” Appellant’s App. at 50. An evidentiary
hearing on the termination petition was held in April 2011. The trial court issued its
judgment terminating Mother’s and Father’s parental rights to K.E. This appeal ensued.
DISCUSSION AND DECISION
Because parents have a constitutionally protected right to establish a home and
raise their children, the Indiana Department of Child Services “must strictly comply with
the statute terminating parental rights.” Platz v. Elkhart Cnty. Dep’t of Pub. Works, 631
N.E.2d 16, 18 (Ind. Ct. App. 1994); see also In re J.S., 906 N.E.2d 226, 235 (Ind. Ct.
App. 2009).
Indiana Code section 31-35-2-4(b)(2)(A) provides that a petition seeking the
involuntary termination of parental rights “must allege” that one 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 . . . .
(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 last 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[.]
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The following facts are undisputed: (1) K.E. was taken into emergency protective
custody by ECDCS in May 2010; (2) the trial court entered a dispositional order formally
removing K.E. from both parents’ care and custody on July 13, 2010; (3) ECDCS filed its
petition seeking the involuntary termination of Mother’s and Father’s parental rights to
K.E. on December 30, 2010, only five months and seventeen days after the trial court
entered its dispositional order, and only seven months after K.E. was removed from the
family home as a result of being alleged to be a CHINS and placed under the supervision
of ECDCS. Additionally, the parties do not allege, nor is there any evidence, that the trial
court ever entered a finding pursuant to Indiana Code section 31-34-21-5.6 that
reasonable efforts for family preservation or reunification were not required in the
underlying CHINS case.
The statutory mandate for seeking an involuntary termination of parental rights is
“clear and unequivocal.” Platz, 631 N.E.2d at 18. An involuntary termination petition
must allege, and the State must prove by clear and convincing evidence, that at least one
of the requirements of Indiana Code section 31-35-2-4(b)(2)(A) is true at the time the
termination petition is filed. See id.; see also In re D.D., 2011 WL 3799442, at *3 (Ind.
Ct. App. Aug. 29, 2011) (stating that involuntary termination petition must allege, and
State must prove by clear and convincing evidence, that at least one of requirements of
I.C. § 31-35-2-4(b)(2)(A) is true at time termination petition is filed).
Based on the foregoing, it is clear that ECDCS failed to follow the dictates of
Indiana’s termination of parental rights statute. See I.C. § 31-35-2-4(b)(2)(A). We
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conclude that the trial court committed reversible error in granting ECDCS’s involuntary
termination petition.
Our conclusion is based solely upon ECDCS’ failure to comply with the statutory
mandate. We express no opinion regarding the sufficiency of the evidence relating to the
remaining elements of the termination petition. In reaching our decision we are keenly
aware of the fact that K.E.’s safety and emotional well-being hang in the balance.
Further delay in the final resolution of K.E.’s case is regrettable. Nevertheless, ECDCS
alleged, but failed to prove removal according to the mandates of Indiana Code section
31-35-2-4(b)(2)(A). Accordingly, the trial court’s judgment terminating Mother’s and
Father’s parental rights must be reversed and this case remanded for further proceedings
consistent with this opinion.
Reversed and remanded.1
BARNES, J., and BRADFORD, J., concur.
1
In its brief ECDCS concedes that it failed to comply with the statutory requirements.
“[ECDCS] need only prove one of the three disjunctive elements by clear and convincing evidence to
support a finding under subsection (A) of the statute. However, [ECDCS] is unable to do so in this case.”
Appellee’s Br. p. 3.
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