FOR PUBLICATION
ATTORNEYS FOR APPELLANTS:                   ATTORNEYS FOR APPELLEE:

L. MATTHEW NIXON                            RAYMOND P. DUDLO
Fair Nixon & Nixon, P.C.                    Princeton, Indiana
Princeton, Indiana
                                            ROBERT J. HENKE
JASON M. SPINDLER                           DCS Central Administration
Princeton, Indiana                          Indianapolis, Indiana

                                                                         FILED
                                                                    Aug 31 2012, 8:40 am
                            IN THE
                  COURT OF APPEALS OF INDIANA                                CLERK
                                                                           of the supreme court,
                                                                           court of appeals and
                                                                                  tax court




IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF:    )
                                     )
B.F. (Minor Child),                  )
                                     )
       and                           )
                                     )
M.G. & S.F. (Father & Mother),       )
                                     )
              Appellant-Respondents, )
                                     )
       vs.                           )              No. 26A04-1202-JT-90
                                     )
THE INDIANA DEPARTMENT OF CHILD      )
SERVICES,                            )
                                     )
       Appellee-Petitioner.          )


                    APPEAL FROM THE GIBSON CIRCUIT COURT
                        The Honorable Jeffrey F. Meade, Judge
                            Cause No. 26C01-1010-JT-14


                                  August 31, 2012

                           OPINION - FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       M.G. (Father) and S.F. (Mother) (collectively, the Parents) appeal the trial court’s

termination of their parental rights to their minor child, B.F.

       We reverse and remand.

                                           ISSUE

       Although the Parents each present two issues on appeal, we find the dispositive

issue to be: Whether the trial court committed fundamental error in terminating the

Parents’ parental rights when the child was removed under a dispositional decree for less

than six months.

                        FACTS AND PROCEDURAL HISTORY

       Father and Mother are the parents of B.F., born on May 19, 2009. On January 27,

2010, the Gibson County Department of Child Services (DCS) removed B.F. from

Mother’s home. On January 28, 2010, DCS requested a detention hearing and filed its

verified petition alleging that B.F. was a child in need of services (CHINS). The CHINS

petition alleged that B.F. was without necessary supervision based on drug use in the

home. That same day, both Mother and Father appeared and admitted to the allegations

in the CHINS petition, resulting in the trial court adjudicating B.F. to be a CHINS.

       On March 30, 2010, the trial court held a dispositional hearing attended by the

Parents, who both signed a parental participation order. On May 25, 2010, the trial court

entered its dispositional decree.



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       On October 8, 2010, DCS filed its Verified Petition to Terminate Parental Rights

to involuntarily terminate the Parent’s parental rights to B.F. The petition alleged that

“B.F. has been removed from the [P]arents for at least six (6) months under a

dispositional decree on March 30, 2010.” However, the petition contained no allegations

that the trial court had entered a finding under I.C. § 31-34-21-5.6, nor did it allege that

B.F. had been removed from the Parents for at least fifteen of the most recent twenty-two

months.

       On August 25, 2011, the trial court held a hearing on the petition. It found that

DCS had proved by clear and convincing evidence that the allegations in its termination

petition were true. The trial court ordered both parties to submit proposed findings of

fact and conclusions of law. On February 1, 2012, the trial court issued its Order

terminating the Parents’ parental rights to B.F.

       The Parents now appeal. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

       The Fourteenth Amendment to the United States Constitution protects the

traditional right of parents to establish a home and raise their children. In re D.W., 969

N.E.2d 89, 93 (Ind. Ct. App. 2012). A parent’s interest in the care, custody, and control

of his or her children is arguably one of the oldest of our fundamental liberty interests.

Id. 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. In

re K.E., 963 N.E.2d 599, 601 (Ind. Ct. App. 2012). Here, DCS has conceded that its

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petition is jurisdictionally flawed. We acknowledge that DCS admits they failed to

comply with the statute.

       Statutory requirements for seeking an involuntary termination of parental rights

are clear and unequivocal. See id. An involuntary termination petition must allege, and

DCS must prove by clear and convincing evidence, that at least one of the requirements

of I.C. § 31-35-2-4(b)(2)(A) is true at the time the termination petition is filed. Id. These

requirements are:

       (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 [I.C. §] 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[.]

I.C. § 31-35-2-4(b)(2)(A).

       Here the petition only alleged that “[B.F.] has been removed from the Parents for

at least six month under a dispositional decree on March 30, 2010.” (DCS Ex. No. 2).

However, it is undisputed that the trial court entered the dispositional decree on May 25,

2010 whereas the termination petition was filed on October 10, 2010, less than four

months after entry of the dispositional decree and less than nine months following B.F.’s

removal from Mother’s home. Further, there is no evidence that the trial court ever

                                             4
entered a finding under I.C. § 31-34-21-5.6. Therefore, the only requirement alleged

under I.C. § 31-35-2-4(b)(2)(A) was not true. Consequently, DCS failed to comply with

the termination of parental rights statute and the trial court committed reversible error in

granting the involuntary termination petition. See In re K.E., 963 N.E.2d at 602.

                                     CONCLUSION

       Based on the foregoing, we conclude that the trial court committed fundamental

error in terminating the Parents’ parental rights to B.F. and reverse and remand for further

proceedings consistent with this opinion.

       Reversed and remanded.

BAILEY, J. and CRONE, J. concur




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