FOR PUBLICATION

ATTORNEY FOR APPELLANT                        ATTORNEYS FOR APPELLEE:
A.M.:
                                              ROBERT J. HENKE
LEANNA WEISSMANN                              DCS Central Administration
Lawrenceburg, Indiana                         Indianapolis, Indiana

                                              MATTHEW K. HAGENBUSH
                                              DCS, Dearborn County Office

                                                                             FILED
                                              Lawrenceburg, Indiana

                                                                           Feb 14 2012, 9:31 am

                              IN THE
                                                                                  CLERK
                    COURT OF APPEALS OF INDIANA                                 of the supreme court,
                                                                                court of appeals and
                                                                                       tax court




IN THE MATTER OF THE INVOLUNTARY              )
TERMINATION OF THE PARENT-CHILD               )
RELATIONSHIPS OF C.M., G.M., AND R.M.,        )
Children, and the Parents,                    )
                                              )
A.M. (Mother) and C.M. (Father),              )
      Appellants-Respondents,                 )
                                              )
              vs.                             )   No. 15A01-1104-JT-204
                                              )
INDIANA DEPARTMENT OF CHILD                   )
SERVICES, DEARBORN COUNTY OFFICE,             )
     Appellee-Petitioner.                     )


                  APPEAL FROM THE DEARBORN CIRCUIT COURT
                        The Honorable James D. Humphrey, Judge
                            Kimberly A. Schmaltz, Magistrate
          Cause Nos. 15C01-1102-JT-006, 15C01-1102-JT-007, 15C01-1102-JT-008


                                   February 14, 2012

                    OPINION ON REHEARING - FOR PUBLICATION

BAILEY, Judge
       The DCS asserts that we have imposed an undue burden upon it by recognizing

the DCS has to make a prima facie showing regarding current conditions before the

parent is obliged to come forward with any evidence. According to the DCS, the parent

who has been separated from his or her child bears the burden of going forward with

evidence of changed conditions. The DCS also urges a “hierarchy” of evidence for

consideration by the court, with evidence of historical conduct to be paramount over

evidence of current or changed conditions.

       We resolve these concerns with resort to the statutory guidance given to us by our

Legislature. The DCS must prove each of the elements alleged in its petition; the

“burden of proof in termination of parental rights cases is one of ‘clear and convincing

evidence.’” In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009) (citing Ind. Code § 31-37-14-

2).

       Pursuant to Indiana Code Section 31-35-2-4(b)(2)(B), if the child has not been

adjudicated a CHINS on two separate occasions, the DCS must show either “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” or “a reasonable

probability that the continuation of the parent-child relationship poses a threat to the well-

being of the child.” (Emphasis added.) The DCS must also establish that termination is

in the best interests of the child. Ind. Code § 31-35-2-4(b)(2)(C).

       Our legislature has employed present-tense language. It is not sufficient to show

that a parent had shortcomings in the past. Rather, it is incumbent upon the DCS to put

forth evidence of lack of remedial measures or evidence of that which poses a threat to

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the child. There may well be no evidence of “changed” conditions, but there must be

evidence of “current” conditions. The Legislature has chosen to require proof of present

conditions; we are not at liberty to alter the statutory language. Likewise, we may not

assign a hierarchy to evidence where the Legislature has not done so.

        The DCS urges us to look to the record and discover evidence that the trial court

did not explicitly address in its findings, conclusions, and order. As we observed in our

original opinion, although a trial court is not statutorily required to make particular

findings in termination cases, “once the trial court walks down the path of making

findings, it is bound under Indiana Trial Rule 52(A) to make findings that support the

judgment.” Parks v. Delaware County Dep’t of Child Servs., 862 N.E.2d 1275, 1281

(Ind. Ct. App. 2007). We do not act as a fact-finder and are not at liberty to supplement

those Trial Rule 52(A) findings.

        We have also held that, even while recognizing that statutory findings are not

required, ‘“the rights involved are of constitutional magnitude,”’ and ‘“a judgment

terminating the relationship between a parent and child is impossible to review on appeal

if it is nothing more than a mere recitation of the conclusions the governing statute

requires the trial court to reach.”’ In re M.W., 943 N.E.2d 848, 854 (Ind. Ct. App. 2011)

(quoting In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010), trans. dismissed), trans.

denied.1 Pursuant to Indiana Code Section 31-35-2-8(a), if the trial court finds that the

allegations in a petition described in Section 4 are true, the parent-child relationship shall

1
  In M.W., we held that the trial court’s findings were not supported by clear and convincing evidence,
given Father’s efforts to comply with the Amended [parental participation] Plan and his imminent release
from incarceration. 943 N.E.2d at 856.
                                                   3
be terminated. A determination in accordance with the statute is essentially a conclusion

of law. In order for the court to properly reach a conclusion of law, it must have made

some factual findings to support the conclusion. We reiterate: those factual findings

must rest upon clear and convincing evidence.

      Accordingly, we affirm our original opinion.

BAKER, J., and DARDEN, J., concur.




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