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:
(A) has been placed in:
(i) a foster family home, child caring institution, or group
home licensed under IC 12-17.4; or
(ii) the home of a person related to the child (as defined in
IC 12-7-2-162.5);
as directed by a court in a child in need of services
proceeding under IC 31-34; and
(B) has been removed from a parent and has been under the
supervision of a county office of family and children for not
less than fifteen (15) months of the most recent twenty-two
(22) months, excluding any period not exceeding sixty (60)
days before the court has entered a finding and judgment
under IC 31-34 that the child is a child in need of services.
(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 prosecuting
attorney or the county office of family and children are entitled to be
joined as a party to the petition upon application to the court.
(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 county office of family and children under
IC 31-34-15 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 relative who is caring for the
child as a guardian.
(2) That:
(A) IC 31-34-21-5.6 is not applicable to the child;
(B) the county office of family and children 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 a permanency plan or dispositional
decree approved under IC 31-34, 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 county office of family and children 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 a
permanency plan or dispositional decree approved under
IC 31-34; and
(C) the services that the county office of family and children
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.
Last modified: May 24, 2006