IC 31-35-2
Chapter 2. Termination of Parent-Child Relationship Involving a
Delinquent Child or a Child in Need of Services
IC 31-35-2-1 Application of chapter
Sec. 1. This chapter applies to the termination of the parent-child
relationship involving:
(1) a delinquent child; or
(2) a child in need of services. As added by P.L.1-1997, SEC.18.
IC 31-35-2-2 Law governing proceedings
Sec. 2. Proceedings under this chapter are governed by the
procedures prescribed by:
(1) IC 31-32-1, IC 31-32-4 through IC 31-32-10, and
IC 31-32-12 through IC 31-32-15;
(2) IC 31-34; and
(3) IC 31-37;
but are distinct from proceedings under IC 31-34 and IC 31-37. As added by P.L.1-1997, SEC.18.
IC 31-35-2-3 Jurisdiction
Sec. 3. The probate court has concurrent original jurisdiction with
the juvenile court in proceedings on a petition to terminate the
parent-child relationship involving a delinquent child or a child in
need of services under this chapter. As added by P.L.1-1997, SEC.18.
IC 31-35-2-4 Petition; contents
Sec. 4. (a) A petition to terminate the parent-child relationship
involving a delinquent child or a child in need of services may be
signed and filed with the juvenile or probate court by any of the
following:
(1) The attorney for the department.
(2) The child's court appointed special advocate.
(3) The child's guardian ad litem.
(b) The petition must meet the following requirements:
(1) The petition must be entitled "In the Matter of the
Termination of the Parent-Child Relationship of ___________,
a child, and ____________, the child's parent (or parents)".
(2) The petition must allege:
(A) that one (1) of the following is true:
(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 IC 31-34-21-5.6
that reasonable efforts for family preservation or
reunification are not required, including a description of
the court's finding, the date of the finding, and the manner
in which the finding was made.
(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 most recent 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;
(B) that one (1) of the following is true:
(i) There is 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.
(ii) There is a reasonable probability that the continuation
of the parent-child relationship poses a threat to the
well-being of the child.
(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment
of the child.
(3) The petition must indicate whether at least one (1) of the
factors listed in section 4.5(d)(1) through 4.5(d)(3) of this
chapter applies and specify each factor that would apply as the
basis for filing a motion to dismiss the petition. As added by P.L.1-1997, SEC.18. Amended by P.L.35-1998, SEC.19;
P.L.200-1999, SEC.29; P.L.146-2008, SEC.615; P.L.131-2009,
SEC.65; P.L.21-2010, SEC.8.
IC 31-35-2-4.5 Petition; filing; motion to dismiss
Sec. 4.5. (a) This section applies if:
(1) a court has made a finding under IC 31-34-21-5.6 that
reasonable efforts for family preservation or reunification with
respect to a child in need of services are not required; or
(2) a child in need of services or a delinquent child:
(A) has been placed in:
(i) a foster family home, child caring institution, or group
home licensed under IC 31-27; or
(ii) the home of a person related (as defined in
IC 31-9-2-106.5) to the child;
as directed by a court in a child in need of services
proceeding under IC 31-34 or a delinquency action under
IC 31-37; and
(B) has been removed from a parent and has been under the
supervision of the department or county probation
department for not less than fifteen (15) months of the most
recent 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.
(b) A person described in section 4(a) of this chapter shall:
(1) file a petition to terminate the parent-child relationship
under section 4 of this chapter; and
(2) request that the petition be set for hearing.
(c) If a petition under subsection (b) is filed by the child's court
appointed special advocate or guardian ad litem, the department shall
be joined as a party to the petition.
(d) A party shall file a motion to dismiss the petition to terminate
the parent-child relationship if any of the following circumstances
apply:
(1) That the current case plan prepared by or under the
supervision of the department or the probation department
under IC 31-34-15, IC 31-37-19-1.5, or IC 31-37-22-4 has
documented a compelling reason, based on facts and
circumstances stated in the petition or motion, for concluding
that filing, or proceeding to a final determination of, a petition
to terminate the parent-child relationship is not in the best
interests of the child. A compelling reason may include the fact
that the child is being cared for by a custodian who is a parent,
stepparent, grandparent, or responsible adult who is the child's
sibling, aunt, or uncle or a person related (as defined in
IC 31-9-2-106.5) to the child who is caring for the child as a
legal guardian.
(2) That:
(A) IC 31-34-21-5.6 is not applicable to the child;
(B) the department or the probation department has not
provided family services to the child, parent, or family of the
child in accordance with a currently effective case plan
prepared under IC 31-34-15 or IC 31-37-19-1.5 or a
permanency plan or dispositional decree approved under
IC 31-34 or IC 31-37, for the purpose of permitting and
facilitating safe return of the child to the child's home; and
(C) the period for completion of the program of family
services, as specified in the current case plan, permanency
plan, or decree, has not expired.
(3) That:
(A) IC 31-34-21-5.6 is not applicable to the child;
(B) the department has not provided family services to the
child, parent, or family of the child, in accordance with
applicable provisions of a currently effective case plan
prepared under IC 31-34-15 or IC 31-37-19-1.5, or a
permanency plan or dispositional decree approved under
IC 31-34 or IC 31-37; and
(C) the services that the department has not provided are
substantial and material in relation to implementation of a
plan to permit safe return of the child to the child's home.
The motion to dismiss shall specify which of the allegations
described in subdivisions (1) through (3) apply to the motion. If the
court finds that any of the allegations described in subdivisions (1)
through (3) are true, as established by a preponderance of the
evidence, the court shall dismiss the petition to terminate the
parent-child relationship. As added by P.L.35-1998, SEC.20. Amended by P.L.200-1999,
SEC.30; P.L.146-2008, SEC.616; P.L.131-2009, SEC.66.
IC 31-35-2-5 Representation of state's interests
Sec. 5. Upon the filing of a petition under section 4 of this
chapter, the attorney for the department shall represent the interests
of the state in all subsequent proceedings on the petition. As added by P.L.1-1997, SEC.18. Amended by P.L.146-2008,
SEC.617.
IC 31-35-2-6 Request for hearing; time
Sec. 6. Except when a hearing is required after June 30, 1999,
under section 4.5 of this chapter, the person filing the petition may
request the court to set the petition for a hearing. Whenever a hearing
is requested under this chapter, the court shall:
(1) commence a hearing on the petition not more than ninety
(90) days after a petition is filed under this chapter; and
(2) complete a hearing on the petition not more than one
hundred eighty (180) days after a petition is filed under this
chapter. As added by P.L.1-1997, SEC.18. Amended by P.L.35-1998, SEC.21;
P.L.146-2006, SEC.54.
IC 31-35-2-6.5 Notice of hearing
Sec. 6.5. (a) This section applies to hearings under this chapter
relating to a child in need of services.
(b) At least ten (10) days before a hearing on a petition or motion
under this chapter:
(1) the person or entity who filed the petition to terminate the
parent-child relationship under section 4 of this chapter; or
(2) the person or entity who filed a motion to dismiss the
petition to terminate the parent-child relationship under section
4.5(d) of this chapter;
shall send notice of the review to the persons listed in subsections (c)
and (d).
(c) Except as provided in subsection (h), the following persons
shall receive notice of a hearing on a petition or motion filed under
this chapter:
(1) The child's parent, guardian, or custodian.
(2) An attorney who has entered an appearance on behalf of the
child's parent, guardian, or custodian.
(3) A prospective adoptive parent named in a petition for
adoption of the child filed under IC 31-19-2 if:
(A) each consent to adoption of the child that is required
under IC 31-19-9-1 has been executed in the form and
manner required by IC 31-19-9 and filed with the county
office or the department;
(B) the court having jurisdiction in the adoption case has
determined under an applicable provision of IC 31-19-9 that
consent to adoption is not required from a parent, guardian,
or custodian; or
(C) a petition to terminate the parent-child relationship
between the child and any parent who has not executed a
written consent to adoption under IC 31-19-9-2, has been
filed under IC 31-35 and is pending.
(4) Any other person who:
(A) the department has knowledge is currently providing
care for the child; and
(B) is not required to be licensed under IC 12-17.2 or
IC 31-27 to provide care for the child.
(5) Any other suitable relative or person who the department
knows has had a significant or caretaking relationship to the
child.
(6) Any other party to the child in need of services proceeding.
(d) At least ten (10) days before a hearing on a petition or motion
under this chapter, the department shall provide notice of the hearing
to the child's foster parent by:
(1) certified mail; or
(2) face to face contact by the department caseworker.
(e) The court shall provide to a person described in subsection (c)
or (d) an opportunity to be heard and make recommendations to the
court at the hearing. The right to be heard and to make
recommendations under this subsection includes the right of a person
described in subsection (c) or (d) to submit a written statement to the
court that, if served upon all parties to the child in need of services
proceeding and the persons described in subsections (c) and (d), may
be made a part of the court record.
(f) The court shall continue the hearing if, at the time of the
hearing, the department has not provided the court with signed
verification from the foster parent, as obtained through subsection
(d), that the foster parent has been notified of the hearing at least five
(5) business days before the hearing. However, the court is not
required to continue the hearing if the child's foster parent appears
for the hearing.
(g) A person described in subsection (c)(2) through (c)(4) or
subsection (d) does not become a party to a proceeding under this
chapter as the result of the person's right to notice and the
opportunity to be heard under this section.
(h) If the parent of an abandoned child does not disclose the
parent's name as allowed by IC 31-34-2.5-1(c), the parent is not
required to be notified of a hearing described in subsection (c). As added by P.L.35-1998, SEC.22. Amended by P.L.200-1999,
IC 31-35-2-7 Guardian ad litem or court appointed special advocate
Sec. 7. (a) If a parent objects to the termination of the parent-child
relationship, the court shall appoint:
(1) a guardian ad litem;
(2) a court appointed special advocate; or
(3) both;
for the child.
(b) If a guardian ad litem or court appointed special advocate has
been appointed for the child under IC 31-34-10, the court may
reappoint the guardian ad litem or court appointed special advocate
to represent and protect the best interests of the child in the
termination proceedings. As added by P.L.1-1997, SEC.18.
IC 31-35-2-8 Determination
Sec. 8. (a) Except as provided in section 4.5(d) of this chapter, if
the court finds that the allegations in a petition described in section
4 of this chapter are true, the court shall terminate the parent-child
relationship.
(b) If the court does not find that the allegations in the petition are
true, the court shall dismiss the petition. As added by P.L.1-1997, SEC.18. Amended by P.L.35-1998, SEC.23.
IC 31-35-2
Chapter 2. Termination of Parent-Child Relationship Involving a
Delinquent Child or a Child in Need of Services
IC 31-35-2-1 Application of chapter
Sec. 1. This chapter applies to the termination of the parent-child
relationship involving:
(1) a delinquent child; or
(2) a child in need of services. As added by P.L.1-1997, SEC.18.
IC 31-35-2-2 Law governing proceedings
Sec. 2. Proceedings under this chapter are governed by the
procedures prescribed by:
(1) IC 31-32-1, IC 31-32-4 through IC 31-32-10, and
IC 31-32-12 through IC 31-32-15;
(2) IC 31-34; and
(3) IC 31-37;
but are distinct from proceedings under IC 31-34 and IC 31-37. As added by P.L.1-1997, SEC.18.
IC 31-35-2-3 Jurisdiction
Sec. 3. The probate court has concurrent original jurisdiction with
the juvenile court in proceedings on a petition to terminate the
parent-child relationship involving a delinquent child or a child in
need of services under this chapter. As added by P.L.1-1997, SEC.18.
IC 31-35-2-4 Petition; contents
Sec. 4. (a) A petition to terminate the parent-child relationship
involving a delinquent child or a child in need of services may be
signed and filed with the juvenile or probate court by any of the
following:
(1) The attorney for the department.
(2) The child's court appointed special advocate.
(3) The child's guardian ad litem.
(b) The petition must meet the following requirements:
(1) The petition must be entitled "In the Matter of the
Termination of the Parent-Child Relationship of ___________,
a child, and ____________, the child's parent (or parents)".
(2) The petition must allege:
(A) that one (1) of the following is true:
(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 IC 31-34-21-5.6
that reasonable efforts for family preservation or
reunification are not required, including a description of
the court's finding, the date of the finding, and the manner
in which the finding was made.
(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 most recent 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;
(B) that one (1) of the following is true:
(i) There is 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.
(ii) There is a reasonable probability that the continuation
of the parent-child relationship poses a threat to the
well-being of the child.
(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment
of the child.
(3) The petition must indicate whether at least one (1) of the
factors listed in section 4.5(d)(1) through 4.5(d)(3) of this
chapter applies and specify each factor that would apply as the
basis for filing a motion to dismiss the petition. As added by P.L.1-1997, SEC.18. Amended by P.L.35-1998, SEC.19;
P.L.200-1999, SEC.29; P.L.146-2008, SEC.615; P.L.131-2009,
SEC.65; P.L.21-2010, SEC.8.
IC 31-35-2-4.5 Petition; filing; motion to dismiss
Sec. 4.5. (a) This section applies if:
(1) a court has made a finding under IC 31-34-21-5.6 that
reasonable efforts for family preservation or reunification with
respect to a child in need of services are not required; or
(2) a child in need of services or a delinquent child:
(A) has been placed in:
(i) a foster family home, child caring institution, or group
home licensed under IC 31-27; or
(ii) the home of a person related (as defined in
IC 31-9-2-106.5) to the child;
as directed by a court in a child in need of services
proceeding under IC 31-34 or a delinquency action under
IC 31-37; and
(B) has been removed from a parent and has been under the
supervision of the department or county probation
department for not less than fifteen (15) months of the most
recent 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.
(b) A person described in section 4(a) of this chapter shall:
(1) file a petition to terminate the parent-child relationship
under section 4 of this chapter; and
(2) request that the petition be set for hearing.
(c) If a petition under subsection (b) is filed by the child's court
appointed special advocate or guardian ad litem, the department shall
be joined as a party to the petition.
(d) A party shall file a motion to dismiss the petition to terminate
the parent-child relationship if any of the following circumstances
apply:
(1) That the current case plan prepared by or under the
supervision of the department or the probation department
under IC 31-34-15, IC 31-37-19-1.5, or IC 31-37-22-4 has
documented a compelling reason, based on facts and
circumstances stated in the petition or motion, for concluding
that filing, or proceeding to a final determination of, a petition
to terminate the parent-child relationship is not in the best
interests of the child. A compelling reason may include the fact
that the child is being cared for by a custodian who is a parent,
stepparent, grandparent, or responsible adult who is the child's
sibling, aunt, or uncle or a person related (as defined in
IC 31-9-2-106.5) to the child who is caring for the child as a
legal guardian.
(2) That:
(A) IC 31-34-21-5.6 is not applicable to the child;
(B) the department or the probation department has not
provided family services to the child, parent, or family of the
child in accordance with a currently effective case plan
prepared under IC 31-34-15 or IC 31-37-19-1.5 or a
permanency plan or dispositional decree approved under
IC 31-34 or IC 31-37, for the purpose of permitting and
facilitating safe return of the child to the child's home; and
(C) the period for completion of the program of family
services, as specified in the current case plan, permanency
plan, or decree, has not expired.
(3) That:
(A) IC 31-34-21-5.6 is not applicable to the child;
(B) the department has not provided family services to the
child, parent, or family of the child, in accordance with
applicable provisions of a currently effective case plan
prepared under IC 31-34-15 or IC 31-37-19-1.5, or a
permanency plan or dispositional decree approved under
IC 31-34 or IC 31-37; and
(C) the services that the department has not provided are
substantial and material in relation to implementation of a
plan to permit safe return of the child to the child's home.
The motion to dismiss shall specify which of the allegations
described in subdivisions (1) through (3) apply to the motion. If the
court finds that any of the allegations described in subdivisions (1)
through (3) are true, as established by a preponderance of the
evidence, the court shall dismiss the petition to terminate the
parent-child relationship. As added by P.L.35-1998, SEC.20. Amended by P.L.200-1999,
SEC.30; P.L.146-2008, SEC.616; P.L.131-2009, SEC.66.
IC 31-35-2-5 Representation of state's interests
Sec. 5. Upon the filing of a petition under section 4 of this
chapter, the attorney for the department shall represent the interests
of the state in all subsequent proceedings on the petition. As added by P.L.1-1997, SEC.18. Amended by P.L.146-2008,
SEC.617.
IC 31-35-2-6 Request for hearing; time
Sec. 6. Except when a hearing is required after June 30, 1999,
under section 4.5 of this chapter, the person filing the petition may
request the court to set the petition for a hearing. Whenever a hearing
is requested under this chapter, the court shall:
(1) commence a hearing on the petition not more than ninety
(90) days after a petition is filed under this chapter; and
(2) complete a hearing on the petition not more than one
hundred eighty (180) days after a petition is filed under this
chapter. As added by P.L.1-1997, SEC.18. Amended by P.L.35-1998, SEC.21;
P.L.146-2006, SEC.54.
IC 31-35-2-6.5 Notice of hearing
Sec. 6.5. (a) This section applies to hearings under this chapter
relating to a child in need of services.
(b) At least ten (10) days before a hearing on a petition or motion
under this chapter:
(1) the person or entity who filed the petition to terminate the
parent-child relationship under section 4 of this chapter; or
(2) the person or entity who filed a motion to dismiss the
petition to terminate the parent-child relationship under section
4.5(d) of this chapter;
shall send notice of the review to the persons listed in subsections (c)
and (d).
(c) Except as provided in subsection (h), the following persons
shall receive notice of a hearing on a petition or motion filed under
this chapter:
(1) The child's parent, guardian, or custodian.
(2) An attorney who has entered an appearance on behalf of the
child's parent, guardian, or custodian.
(3) A prospective adoptive parent named in a petition for
adoption of the child filed under IC 31-19-2 if:
(A) each consent to adoption of the child that is required
under IC 31-19-9-1 has been executed in the form and
manner required by IC 31-19-9 and filed with the county
office or the department;
(B) the court having jurisdiction in the adoption case has
determined under an applicable provision of IC 31-19-9 that
consent to adoption is not required from a parent, guardian,
or custodian; or
(C) a petition to terminate the parent-child relationship
between the child and any parent who has not executed a
written consent to adoption under IC 31-19-9-2, has been
filed under IC 31-35 and is pending.
(4) Any other person who:
(A) the department has knowledge is currently providing
care for the child; and
(B) is not required to be licensed under IC 12-17.2 or
IC 31-27 to provide care for the child.
(5) Any other suitable relative or person who the department
knows has had a significant or caretaking relationship to the
child.
(6) Any other party to the child in need of services proceeding.
(d) At least ten (10) days before a hearing on a petition or motion
under this chapter, the department shall provide notice of the hearing
to the child's foster parent by:
(1) certified mail; or
(2) face to face contact by the department caseworker.
(e) The court shall provide to a person described in subsection (c)
or (d) an opportunity to be heard and make recommendations to the
court at the hearing. The right to be heard and to make
recommendations under this subsection includes the right of a person
described in subsection (c) or (d) to submit a written statement to the
court that, if served upon all parties to the child in need of services
proceeding and the persons described in subsections (c) and (d), may
be made a part of the court record.
(f) The court shall continue the hearing if, at the time of the
hearing, the department has not provided the court with signed
verification from the foster parent, as obtained through subsection
(d), that the foster parent has been notified of the hearing at least five
(5) business days before the hearing. However, the court is not
required to continue the hearing if the child's foster parent appears
for the hearing.
(g) A person described in subsection (c)(2) through (c)(4) or
subsection (d) does not become a party to a proceeding under this
chapter as the result of the person's right to notice and the
opportunity to be heard under this section.
(h) If the parent of an abandoned child does not disclose the
parent's name as allowed by IC 31-34-2.5-1(c), the parent is not
required to be notified of a hearing described in subsection (c). As added by P.L.35-1998, SEC.22. Amended by P.L.200-1999,
IC 31-35-2-7 Guardian ad litem or court appointed special advocate
Sec. 7. (a) If a parent objects to the termination of the parent-child
relationship, the court shall appoint:
(1) a guardian ad litem;
(2) a court appointed special advocate; or
(3) both;
for the child.
(b) If a guardian ad litem or court appointed special advocate has
been appointed for the child under IC 31-34-10, the court may
reappoint the guardian ad litem or court appointed special advocate
to represent and protect the best interests of the child in the
termination proceedings. As added by P.L.1-1997, SEC.18.
IC 31-35-2-8 Determination
Sec. 8. (a) Except as provided in section 4.5(d) of this chapter, if
the court finds that the allegations in a petition described in section
4 of this chapter are true, the court shall terminate the parent-child
relationship.
(b) If the court does not find that the allegations in the petition are
true, the court shall dismiss the petition. As added by P.L.1-1997, SEC.18. Amended by P.L.35-1998, SEC.23.
IC 31-35-2
Chapter 2. Termination of Parent-Child Relationship Involving a
Delinquent Child or a Child in Need of Services
IC 31-35-2-1 Application of chapter
Sec. 1. This chapter applies to the termination of the parent-child
relationship involving:
(1) a delinquent child; or
(2) a child in need of services. As added by P.L.1-1997, SEC.18.
IC 31-35-2-2 Law governing proceedings
Sec. 2. Proceedings under this chapter are governed by the
procedures prescribed by:
(1) IC 31-32-1, IC 31-32-4 through IC 31-32-10, and
IC 31-32-12 through IC 31-32-15;
(2) IC 31-34; and
(3) IC 31-37;
but are distinct from proceedings under IC 31-34 and IC 31-37. As added by P.L.1-1997, SEC.18.
IC 31-35-2-3 Jurisdiction
Sec. 3. The probate court has concurrent original jurisdiction with
the juvenile court in proceedings on a petition to terminate the
parent-child relationship involving a delinquent child or a child in
need of services under this chapter. As added by P.L.1-1997, SEC.18.
IC 31-35-2-4 Petition; contents
Sec. 4. (a) A petition to terminate the parent-child relationship
involving a delinquent child or a child in need of services may be
signed and filed with the juvenile or probate court by any of the
following:
(1) The attorney for the department.
(2) The child's court appointed special advocate.
(3) The child's guardian ad litem.
(b) The petition must meet the following requirements:
(1) The petition must be entitled "In the Matter of the
Termination of the Parent-Child Relationship of ___________,
a child, and ____________, the child's parent (or parents)".
(2) The petition must allege:
(A) that one (1) of the following is true:
(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 IC 31-34-21-5.6
that reasonable efforts for family preservation or
reunification are not required, including a description of
the court's finding, the date of the finding, and the manner
in which the finding was made.
(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 most recent 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;
(B) that one (1) of the following is true:
(i) There is 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.
(ii) There is a reasonable probability that the continuation
of the parent-child relationship poses a threat to the
well-being of the child.
(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment
of the child.
(3) The petition must indicate whether at least one (1) of the
factors listed in section 4.5(d)(1) through 4.5(d)(3) of this
chapter applies and specify each factor that would apply as the
basis for filing a motion to dismiss the petition. As added by P.L.1-1997, SEC.18. Amended by P.L.35-1998, SEC.19;
P.L.200-1999, SEC.29; P.L.146-2008, SEC.615; P.L.131-2009,
SEC.65; P.L.21-2010, SEC.8.
IC 31-35-2-4.5 Petition; filing; motion to dismiss
Sec. 4.5. (a) This section applies if:
(1) a court has made a finding under IC 31-34-21-5.6 that
reasonable efforts for family preservation or reunification with
respect to a child in need of services are not required; or
(2) a child in need of services or a delinquent child:
(A) has been placed in:
(i) a foster family home, child caring institution, or group
home licensed under IC 31-27; or
(ii) the home of a person related (as defined in
IC 31-9-2-106.5) to the child;
as directed by a court in a child in need of services
proceeding under IC 31-34 or a delinquency action under
IC 31-37; and
(B) has been removed from a parent and has been under the
supervision of the department or county probation
department for not less than fifteen (15) months of the most
recent 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.
(b) A person described in section 4(a) of this chapter shall:
(1) file a petition to terminate the parent-child relationship
under section 4 of this chapter; and
(2) request that the petition be set for hearing.
(c) If a petition under subsection (b) is filed by the child's court
appointed special advocate or guardian ad litem, the department shall
be joined as a party to the petition.
(d) A party shall file a motion to dismiss the petition to terminate
the parent-child relationship if any of the following circumstances
apply:
(1) That the current case plan prepared by or under the
supervision of the department or the probation department
under IC 31-34-15, IC 31-37-19-1.5, or IC 31-37-22-4 has
documented a compelling reason, based on facts and
circumstances stated in the petition or motion, for concluding
that filing, or proceeding to a final determination of, a petition
to terminate the parent-child relationship is not in the best
interests of the child. A compelling reason may include the fact
that the child is being cared for by a custodian who is a parent,
stepparent, grandparent, or responsible adult who is the child's
sibling, aunt, or uncle or a person related (as defined in
IC 31-9-2-106.5) to the child who is caring for the child as a
legal guardian.
(2) That:
(A) IC 31-34-21-5.6 is not applicable to the child;
(B) the department or the probation department has not
provided family services to the child, parent, or family of the
child in accordance with a currently effective case plan
prepared under IC 31-34-15 or IC 31-37-19-1.5 or a
permanency plan or dispositional decree approved under
IC 31-34 or IC 31-37, for the purpose of permitting and
facilitating safe return of the child to the child's home; and
(C) the period for completion of the program of family
services, as specified in the current case plan, permanency
plan, or decree, has not expired.
(3) That:
(A) IC 31-34-21-5.6 is not applicable to the child;
(B) the department has not provided family services to the
child, parent, or family of the child, in accordance with
applicable provisions of a currently effective case plan
prepared under IC 31-34-15 or IC 31-37-19-1.5, or a
permanency plan or dispositional decree approved under
IC 31-34 or IC 31-37; and
(C) the services that the department has not provided are
substantial and material in relation to implementation of a
plan to permit safe return of the child to the child's home.
The motion to dismiss shall specify which of the allegations
described in subdivisions (1) through (3) apply to the motion. If the
court finds that any of the allegations described in subdivisions (1)
through (3) are true, as established by a preponderance of the
evidence, the court shall dismiss the petition to terminate the
parent-child relationship. As added by P.L.35-1998, SEC.20. Amended by P.L.200-1999,
SEC.30; P.L.146-2008, SEC.616; P.L.131-2009, SEC.66.
IC 31-35-2-5 Representation of state's interests
Sec. 5. Upon the filing of a petition under section 4 of this
chapter, the attorney for the department shall represent the interests
of the state in all subsequent proceedings on the petition. As added by P.L.1-1997, SEC.18. Amended by P.L.146-2008,
SEC.617.
IC 31-35-2-6 Request for hearing; time
Sec. 6. Except when a hearing is required after June 30, 1999,
under section 4.5 of this chapter, the person filing the petition may
request the court to set the petition for a hearing. Whenever a hearing
is requested under this chapter, the court shall:
(1) commence a hearing on the petition not more than ninety
(90) days after a petition is filed under this chapter; and
(2) complete a hearing on the petition not more than one
hundred eighty (180) days after a petition is filed under this
chapter. As added by P.L.1-1997, SEC.18. Amended by P.L.35-1998, SEC.21;
P.L.146-2006, SEC.54.
IC 31-35-2-6.5 Notice of hearing
Sec. 6.5. (a) This section applies to hearings under this chapter
relating to a child in need of services.
(b) At least ten (10) days before a hearing on a petition or motion
under this chapter:
(1) the person or entity who filed the petition to terminate the
parent-child relationship under section 4 of this chapter; or
(2) the person or entity who filed a motion to dismiss the
petition to terminate the parent-child relationship under section
4.5(d) of this chapter;
shall send notice of the review to the persons listed in subsections (c)
and (d).
(c) Except as provided in subsection (h), the following persons
shall receive notice of a hearing on a petition or motion filed under
this chapter:
(1) The child's parent, guardian, or custodian.
(2) An attorney who has entered an appearance on behalf of the
child's parent, guardian, or custodian.
(3) A prospective adoptive parent named in a petition for
adoption of the child filed under IC 31-19-2 if:
(A) each consent to adoption of the child that is required
under IC 31-19-9-1 has been executed in the form and
manner required by IC 31-19-9 and filed with the county
office or the department;
(B) the court having jurisdiction in the adoption case has
determined under an applicable provision of IC 31-19-9 that
consent to adoption is not required from a parent, guardian,
or custodian; or
(C) a petition to terminate the parent-child relationship
between the child and any parent who has not executed a
written consent to adoption under IC 31-19-9-2, has been
filed under IC 31-35 and is pending.
(4) Any other person who:
(A) the department has knowledge is currently providing
care for the child; and
(B) is not required to be licensed under IC 12-17.2 or
IC 31-27 to provide care for the child.
(5) Any other suitable relative or person who the department
knows has had a significant or caretaking relationship to the
child.
(6) Any other party to the child in need of services proceeding.
(d) At least ten (10) days before a hearing on a petition or motion
under this chapter, the department shall provide notice of the hearing
to the child's foster parent by:
(1) certified mail; or
(2) face to face contact by the department caseworker.
(e) The court shall provide to a person described in subsection (c)
or (d) an opportunity to be heard and make recommendations to the
court at the hearing. The right to be heard and to make
recommendations under this subsection includes the right of a person
described in subsection (c) or (d) to submit a written statement to the
court that, if served upon all parties to the child in need of services
proceeding and the persons described in subsections (c) and (d), may
be made a part of the court record.
(f) The court shall continue the hearing if, at the time of the
hearing, the department has not provided the court with signed
verification from the foster parent, as obtained through subsection
(d), that the foster parent has been notified of the hearing at least five
(5) business days before the hearing. However, the court is not
required to continue the hearing if the child's foster parent appears
for the hearing.
(g) A person described in subsection (c)(2) through (c)(4) or
subsection (d) does not become a party to a proceeding under this
chapter as the result of the person's right to notice and the
opportunity to be heard under this section.
(h) If the parent of an abandoned child does not disclose the
parent's name as allowed by IC 31-34-2.5-1(c), the parent is not
required to be notified of a hearing described in subsection (c). As added by P.L.35-1998, SEC.22. Amended by P.L.200-1999,
IC 31-35-2-7 Guardian ad litem or court appointed special advocate
Sec. 7. (a) If a parent objects to the termination of the parent-child
relationship, the court shall appoint:
(1) a guardian ad litem;
(2) a court appointed special advocate; or
(3) both;
for the child.
(b) If a guardian ad litem or court appointed special advocate has
been appointed for the child under IC 31-34-10, the court may
reappoint the guardian ad litem or court appointed special advocate
to represent and protect the best interests of the child in the
termination proceedings. As added by P.L.1-1997, SEC.18.
IC 31-35-2-8 Determination
Sec. 8. (a) Except as provided in section 4.5(d) of this chapter, if
the court finds that the allegations in a petition described in section
4 of this chapter are true, the court shall terminate the parent-child
relationship.
(b) If the court does not find that the allegations in the petition are
true, the court shall dismiss the petition. As added by P.L.1-1997, SEC.18. Amended by P.L.35-1998, SEC.23.
