DeBoer, J.
Case Summary
Child, born to B.B. (Father) and K.F. (Mother) on March 20, 2022, has been the subject of three child in need of services (CHINS) cases due to Mother’s substance abuse and Father’s incarceration. This appeal arises from the third CHINS case filed against Mother. In this case, the Indiana Department of Child Services (DCS) petitioned the court for an order that it no longer had to use reasonable efforts to reunify Child with Parents pursuant to Indiana Code section 31-34-21-5.6(b)(7) (“Multiple CHINS provision”), which was a 2024 amendment to the Indiana Code and has yet to be interpreted by this Court. The trial court granted DCS’s motion. In this consolidated appeal, Parents argue: (1) there was insufficient evidence to order no reasonable efforts under the Multiple CHINS provision; and (2) the Multiple CHINS provision is unconstitutional as a violation of substantive due process. Finding the first issue dispositive, we reverse and remand to the trial court.
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States, through their child welfare programs, are required to use “reasonable efforts . . . to preserve and reunify families” in order to receive federal grants for foster care, prevention, and permanency…
Effective July 1, 2024, the Indiana General Assembly amended the no reasonable efforts statute, adding the Multiple CHINS provision as subpart (b)(7)… This amended statute has yet to be interpreted by this Court.
In order for the trial court to find that DCS did not have to use reasonable efforts to reunite Parents and Child, DCS had to prove that: (1) Child was the subject of two or more previous CHINS cases; (2) Child was removed from her parent’s home under a dispositional decree in each of those previous cases; and (3) the removal was due to conditions caused by the parent. Here, Parents argue there was insufficient evidence because DCS failed to prove the second element, contending that Child was never removed from Mother’s home under a dispositional decree in the second CHINS case.
Our decision as to whether DCS presented sufficient evidence of Child’s removal in the second case turns on the meaning of “removed” as used in the Multiple CHINS provision…
Parents argue that removal under the Multiple CHINS provision requires physical separation of Child from Mother. Because Child was in Mother’s care on a THV from September 25, 2023 to March 1, 2024, with no break, they contend that Child was not “removed from the home of the child’s parents” under the December 11, 2023 dispositional order within the meaning of the Multiple CHINS provision. We agree with Parents.
Despite the use of the words “removed” and “removal” throughout Title 31 of the Indiana Code, these words are not defined as they pertain to CHINS or termination of parental rights (TPR) proceedings. Children can be removed in some form or fashion through different orders in a CHINS proceeding, such as custody or detention orders pursuant to Indiana Code section 31-34-2-1 or Indiana Code section 31-34-5-3 respectively. Children can also be removed pursuant to a dispositional decree under Indiana Code section 31-34-20-1, which is the type of removal contemplated by the Multiple CHINS provision…
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Turning to the statute before us, for a court to relieve DCS of its obligation to use reasonable efforts, the Multiple CHINS provision requires that Child was “removed from the home of the child’s parent . . . under a dispositional decree[.]” I.C. § 31-34-21-5.6(b)(7)(B)(i). Merriam-Webster defines “remove” to mean “to change the location, position, station, or residence of” or “to go away.” Remove, Merriam-Webster, https://www.merriamwebster.com/dictionary/remove [https://perma.cc/87Y4-ZNPH]. The American Heritage Dictionary defines it similarly to mean “[t]o move from a place or position occupied,” “[t]o transfer or convey from one place to another,” or “[t]o take away; withdraw.” Remove, The American Heritage Dictionary, https://ahdictionary.com/word/search.html?q=remove [https://perma.cc/TLX8-Y].
Giving the words in the Multiple CHINS provision their plain and ordinary meaning, we conclude Child was not “removed from the home of [her] parent” under the December 11 dispositional decree because Child never left Mother’s home after the decree was entered. The dispositional decree ordered that Child “shall” remain in her then-current placement, which was with Mother. Ex. Vol. 5 at 90. Child was never taken away from or moved to a different location out of Mother’s care upon or after the dispositional order was entered. From September 25, 2023, until the close of the case in March 2024, Child was in Mother’s constant care.
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The State argues that despite her physical presence with Mother during such time, Child was still legally “removed” for purposes of the provision….
We are unpersuaded. First, THV or not, Child was placed in Mother’s home during that time. We will not read into the Multiple CHINS provision a specific level of permanency required for a child to be considered not removed from the parent’s home. Second, wardship is not the same as removal. The dispositional decree at issue in the Multiple CHINS provision was entered under Indiana Code section 31-34-20-1….The enumeration of these options—the distinction between removal and wardship—undermines DCS’s contention that its wardship over Child shows Child was removed. Based on the statutory language, a trial court is permitted to order wardship without removal. Furthermore, the legislature could have decided to make wardship an element of the Multiple CHINS provision rather than removal, but it did not.
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Not only does DCS’s own policy language show that a THV is considered in-home care, but DCS’s THV motion and the fact that it allowed the THV to continue until the close of the case both show that DCS considered it safe for Child to be with Mother and that placement with Mother was not a threat to Child’s welfare. Additionally, under the dispositional order, Mother was ordered to maintain “suitable, safe, and stable housing,” and there is no indication that she failed to do so prior to the close of the second case. Ex. Vol. 5 at 95. The language DCS points to does not overcome the operative language in the order dictating Child’s placement and that Child’s actual placement was with Mother in her home.
In sum, based on the plain and ordinary meaning of the provision’s language and our case law, we find that “removed from the home of the child’s parent . . . under a dispositional decree” necessarily means that the child was placed outside the parent’s home for any period of time pursuant to a dispositional decree. Because the evidence here shows that Child’s physical placement was in Mother’s home for the entire period they were under the dispositional decree and finding it immaterial that it was in the form of a THV, DCS failed to prove that Child was removed from her parent’s home under a dispositional decree in the second CHINS case. Therefore, the second element of the Multiple CHINS provision was not proven, and there was insufficient evidence to support the trial court’s finding that reasonable efforts were no longer required.
Because we resolve Parents’ case on the sufficiency of the evidence, we decline to decide Parents’ constitutional argument…
Conclusion
Finding there was insufficient evidence to show that all the elements of the Multiple CHINS provision were proven below, the trial court erred in finding that reasonable efforts were not required. As such, we reverse and remand with instructions to provide Parents with reunification services. Additionally, because the change in Child’s permanency plan was partially reliant on the no reasonable efforts finding, we remand for further proceedings on the permanency plan consistent with this opinion.
Reversed and remanded.
Altice, C.J., and Pyle, J., concur.