 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                MEMORANDUM DECISION - NOT FOR PUBLICATION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


                                               2
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).


                                              3
      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

                                              4
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.

                                                5
       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).




                                               6
       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.




                                              7
