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

                                              2
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[.]




                                               3
       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



                                              4
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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