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On rehearing, COA affirms original opinion

February 14, 2012

On petition for rehearing, the state Department of Child Services claims that the appellate court imposed an undue burden upon the agency by recognizing that DCS has to make a prima facie showing regarding current conditions before the parent is obliged to come forward with evidence.

The petition for rehearing arises from Term. of Parent-Child Rel. of C.M., G.M., and R.M.; A.M. (Mother) and C.M. (Father) v. Indiana Dept. of Child Services, Dearborn County Office, No. 15A01-1104-JT-204.

The Indiana Court of Appeals supported its original opinion, citing Indiana Code Section 31-35-2-4(b)(2)(B). That statute says that if the child has not been adjudicated a child in need of services 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.” The DCS must also show that termination of parental rights is in the child’s best interest.

Holding that the Legislature has chosen to require proof of present conditions, the COA said it is not at liberty to alter the statutory language.



 

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