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Thursday, December 08, 2011

Ind. Decisions - Court of Appeals issues 1 today (and 1 NFP)

For publication opinions today (1):

In 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, a 10-page opinion, Judge Bailey writes:

A.M. (“Mother”) appeals an order terminating her parental rights to C.M., G.M., and R.M. (“the Children”), upon the petition of the Dearborn County Department of Child Services (“the DCS”). We reverse the termination of Mother’s parental rights.

Mother presents a single issue for appeal: Whether DCS established, by clear and convincing evidence, the requisite statutory elements to support the termination of parental rights. * * *

Here, the court’s focus on historical conduct, absent factual findings as to Mother’s current circumstances or evidence of changed conditions, is akin to terminating parental rights to punish the parent. And, without more, the findings are insufficient to establish each element necessary to support the conclusion that termination is warranted in this case.

Moreover, the court’s conclusions of law included language suggesting that Mother had a burden of proof she does not have. Indiana Code Section 31-35-2-4 requires the DCS to establish, by clear and convincing evidence, each of the requisite elements to support the termination of parental rights. A prima facie showing necessarily includes some evidence of current conditions. Here, the DCS did not present a prima facie case of a reasonable probability either that the conditions leading to removal will not be remedied or that Mother poses a threat to the Children; thus, Mother was not required to produce evidence in order to withstand the termination petition.

Although a trial court is not statutorily required to make 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, 862 N.E.2d 1275, 1281 (Ind. Ct. App. 2007). The findings do not support the trial court’s judgment.

Accordingly, we reverse the judgment of the trial court terminating Mother’s parental rights to C.M., G.M., and R.M.

NFP civil opinions today (0):

NFP criminal opinions today (1):

Robert A. Shannon v. State of Indiana (NFP)

Posted by Marcia Oddi on December 8, 2011 01:10 PM
Posted to Ind. App.Ct. Decisions