A Montgomery County father’s parental rights have been restored after the Indiana Supreme Court held Friday that lower courts erred in granting and affirming the Department of Child Services’ petition to terminate them.
In the Matter of the Termination of the Parent-Child Relationship of Bi.B. And Br.B, D.B. and V.G. v. Indiana Department of Child Services, 54S01-1612-JT-630, D.B. and V.G. had custody of five children – their two daughters together, Bi.B. and Br.B., and V.G.’s three sons from a prior relationship whose father had died. After the Indiana Department of Child Services learned that the parents were using methamphetamine and leaving their children unsupervised in a dirty home, the children were adjudicated as children in need of services and were eventually removed from the home in July 2014.
As a result of the children’s removal, V.G. and D.B. were ordered to participate in drug screenings, supervised visits and various other services, but their participation was only sporadic. DCS thus moved to terminate their parental rights in October 2015.
In its petition for termination, DCS alleged that two out of three statutorily required waiting periods applied – that is, a court has found that reasonable reunification efforts were not required, and the children had been removed from the parents and placed under other supervision for at least 15 out of the last 22 months. However, DCS did not argue that the last waiting period, which required that the children were removed from the parents for at least six months under a dispositional decree, applied to the case.
D.B., the father, argued that DCS had failed to prove the first two waiting periods and failed to allege the third, which could have actually been proven. Specifically, he said DCS filed the petition five days short of the 15-month anniversary of his daughters’ removal.
Despite that argument, the Montgomery Circuit Court granted the petition to termination his and V.G.’s parental rights. The Indiana Court of Appeals affirmed that decision in September 2016, finding that although neither of the waiting-period allegations were true, such error was harmless. The appellate court also found sufficient evidence to support the trial court’s decision.
Only D.B. sought transfer, and in a unanimous opinion handed down on Friday, the Indiana Supreme Court reversed the lower courts’ decisions to terminate his parental rights.
In an opinion authored by Chief Justice Loretta Rush, the state’s high court first noted that “the right of parents to raise their children is ‘perhaps the oldest of the fundamental liberty interests.’”
Under the plain language of Indiana Code 31-35-2-4(b)(2)(A) – which requires that the petition must allege that the 15-month basis “is,” not “will be,” true – the state legislature intended the 15-month waiting period to apply to the day when the petition is filed, as D.B. argued, not to the day of the evidentiary hearing, as DCS argued, Rush wrote.
Further, the statutory language holds that the petition “must” allege that at least one of the three waiting periods is true, Rush said. Thus, because DCS did not allege the six-month waiting period, the only one that could have been proven true, its petition for termination of D.B.’s rights fails, the chief justice said.
Finally, Rush wrote that state statute holds that “if the court does not finds that the allegations in the petition are true, the court shall dismiss the petition.”
“Like ‘must,’ ‘shall’ is mandatory, and we cannot engraft qualifying language onto that directive,” she said.
However, because V.G. did not seek transfer, Rush wrote in a footnote that the court summarily affirmed the Court of Appeals’ disposition as to her, though not its reasoning.