Bailey, J.
Case Summary
L.H. (“Mother”) appeals1 the trial court’s order involuntarily terminating her parental rights to D.H., born October 16, 2006, K.H., born August 24, 2010, and E.H., born May 22, 2014 (collectively, “Children”). The only issue Mother raises on appeal is whether the mishandling of her case by the Indiana Department of Child Services (“DCS”) denied her due process.
We reverse and remand with instructions.
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Here, in terminating Mother’s parental rights, the trial court entered specific findings of fact and conclusions thereon. Usually, when a trial court’s judgment contains special findings and conclusions, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). [Footnote omitted.] However, in this case, Mother does not challenge either the findings or specific conclusions; rather, she contends that the termination order must be reversed because DCS mishandled her case to such an extent that it denied her due process of law.
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We must also consider the general proposition that, “if the State imparts a due process right, then it must give that right.” In re C.G., 954 N.E.2d at 918 (citing In re A.P., 734 N.E.2d at 1112). Indiana Code Sections 31-35-2-4.5(d)(2) and (3) require that DCS file a motion to dismiss an otherwise-required termination petition when DCS has failed to provide family services and either the period for completion of the services has not expired or the services are substantial and material in facilitating return of the child to the home. Phelps, 736 N.E.2d at 814. And DCS’s own policy manual, of which we take judicial notice, see Evid. R. 201(a), provides unequivocal directions to DCS regarding the provision of services. First, it states that DCS “will provide family services to all children and families with an open case.” Indiana Dep’t of Child Serv. Child Welfare Policy Manual (“the Manual”), Ch. 5, Sec. 10, www.in.gov/dcs/files/5.10%20Family%20Services.pdf (last visited January 10, 2019). Next, Chapter 5, Section 10 of the Manual …
FCM Leas’s own testimony shows that she did none of the above when she took over the CHINS case at the beginning of November of 2017 (i.e., before the termination petition was filed in mid-January 2018), despite Mother’s request for, and willingness to participate in, any necessary services. FCM Leas admitted that, before DCS filed for termination in this case, she: did not reassess Mother’s needs and adjust and refer services for Mother, regardless of Mother’s participation; did not know what services Mother had already completed or what services she still needed;19 and did not maintain contact with Mother’s service providers to assess Mother’s level of participation in services and/or evaluate Mother’s response to the change and/or removal of services. Essentially, FCM Leas knew little-to-nothing about Mother’s service needs and compliance or non-compliance with services; yet DCS moved for termination of Mother’s rights anyway. And it did so without noting, as required by law, that there were grounds to move to dismiss the termination petition because of DCS’s failure to identify and/or provide necessary family services while the CHINS case was open. [Footnotes omitted.] I.C. § 31-35-2-4.5(d)(2) and (3). That failure created the risk of a premature, erroneous termination of Mother’s rights on the grounds that she was not complying with services.
DCS also failed to note in its termination petition that it had failed to provide a visitation plan in compliance with its own policy regarding the provision of a visitation plan for families in which domestic violence has been identified. Chapter 8, Section 12 of the Manual provides that DCS “will develop a Visitation Plan.” www.in.gov/dcs/files/8.12%20Developing%20the%20Visitation%20Plan.pdf (last visited January 11, 2019). And, “where domestic violence has been identified,” the “FCM will: … (2) Offer separate visitation time for the nonoffending parent and the alleged domestic violence offender; … and (5) Ensure here is no overlap of parental visitation time” between the non-offender and the alleged offender. Id. The Manual further notes that “[a]mple time should be included for the non-offending parent to pick up or drop off the child or to arrive and leave the premises without being forced to interact with the alleged domestic violence offender.” Id.
Yet, here, although Mother was not living with Father at the time of the June 22, 2017, order on the permanency plan, see Ex. at 35, and DCS had already identified domestic violence in the family, the trial court ordered—and DCS did not object—that Father would have an unsupervised trial home visit with Children, and Mother would “work[ ] out” visitation with Father, id. As a result, contrary to DCS’s written visitation procedures, Mother did not have a visitation plan that would allow her to visit with Children “without being forced to interact with” Father. www.in.gov/dcs/files/8.12%20Developing%20the%20Visitation%20Plan.pdf (last visited January 11, 2019). Therefore, Mother visited Children at Father’s home without third party supervision and, predictably, during one such visitation Father physically abused Mother in Children’s presence. Thus, the procedural failure on the part of DCS to provide a visitation plan pursuant to its own written visitation procedures contributed to the Children witnessing Father commit domestic violence against Mother. This procedural error was then compounded by DCS’s subsequent petition to terminate Mother’s parental rights on the grounds that she had not protected Children from witnessing domestic violence, without also noting that DCS had failed to provide services that were “substantial and material” in relation to the reunification goal of protecting Children from witnessing domestic violence. I.C. § 31-35-2- 4.5(d)(3).
The significant procedural irregularities in the CHINS case created a risk of the erroneous filing of a petition to terminate Mother’s parental rights to Children, in violation of Mother’s due process rights. Thus, under the Mathews analysis, the termination of Mother’s parental rights violated the requirements of due process. See In re G.P., 4 N.E.3d at 1166. Moreover, the termination order must be reversed due to the State’s failure to give Mother the due process imparted to her by Indiana Code Section 31-35-2-4.5(d)—i.e., the right to have DCS move to dismiss a termination petition when it has not provided her with services that were substantial and material in relation to the reunification plan. See In re G.P., 4 N.E.3d at 1166; Phelps, 736 N.E.2d at 814.
Conclusion
In light of DCS’s significant and admitted procedural failings in this case, we reverse the termination of Mother’s parental rights to Children. We remand to the trial court for reinstatement of the CHINS cases, a re-examination of the requirements for Mother’s reunification with Children, and a revised dispositional order outlining the services Mother must complete in order to reunify with Children.