FOR PUBLICATION

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE:

A.M.:

ROBERT J. HENKE

LEANNA WEISSMANN DCS Central Administration

Lawrenceburg, Indiana Indianapolis, Indiana

MATTHEW K. HAGENBUSH

DCS, Dearborn County Office

Lawrenceburg, Indiana

IN THE

COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE INVOLUNTARY )

TERMINATION OF THE PARENT-CHILD )

RELATIONSHIPS OF C.M., G.M., AND R.M., )

Children, and the Parents, )

)

A.M. (Mother) and C.M. (Father), )

Appellants-Respondents, )

)

vs. ) No. 15A01-1104-JT-204 

) 

INDIANA DEPARTMENT OF CHILD )

SERVICES, DEARBORN COUNTY OFFICE, )

Appellee-Petitioner. )

APPEAL FROM THE DEARBORN CIRCUIT COURT

The Honorable James D. Humphrey, Judge

Kimberly A. Schmaltz, Magistrate

Cause Nos. 15C01-1102-JT-006, 15C01-1102-JT-007, 15C01-1102-JT-008

February 14, 2012

OPINION ON REHEARING - FOR PUBLICATION

BAILEY, Judge
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The DCS asserts that we have imposed an undue burden upon it by recognizing 

the DCS has to make a prima facie showing regarding current conditions before the 

parent is obliged to come forward with any evidence. According to the DCS, the parent 

who has been separated from his or her child bears the burden of going forward with 

evidence of changed conditions. The DCS also urges a “hierarchy” of evidence for 

consideration by the court, with evidence of historical conduct to be paramount over 

evidence of current or changed conditions.

We resolve these concerns with resort to the statutory guidance given to us by our 

Legislature. The DCS must prove each of the elements alleged in its petition; the 

“burden of proof in termination of parental rights cases is one of ‘clear and convincing 

evidence.’” In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009) (citing Ind. Code § 31-37-14-

2). 

Pursuant to Indiana Code Section 31-35-2-4(b)(2)(B), if the child has not been 

adjudicated a CHINS on two separate occasions, the DCS must show either “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” or “a reasonable 

probability that the continuation of the parent-child relationship poses a threat to the wellbeing of the child.” (Emphasis added.) The DCS must also establish that termination is

in the best interests of the child. Ind. Code § 31-35-2-4(b)(2)(C).

Our legislature has employed present-tense language. It is not sufficient to show 

that a parent had shortcomings in the past. Rather, it is incumbent upon the DCS to put 

forth evidence of lack of remedial measures or evidence of that which poses a threat to 
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the child. There may well be no evidence of “changed” conditions, but there must be 

evidence of “current” conditions. The Legislature has chosen to require proof of present 

conditions; we are not at liberty to alter the statutory language. Likewise, we may not 

assign a hierarchy to evidence where the Legislature has not done so.

The DCS urges us to look to the record and discover evidence that the trial court 

did not explicitly address in its findings, conclusions, and order. As we observed in our 

original opinion, although a trial court is not statutorily required to make particular 

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 v. Delaware County Dep’t of Child Servs., 862 N.E.2d 1275, 1281 

(Ind. Ct. App. 2007). We do not act as a fact-finder and are not at liberty to supplement 

those Trial Rule 52(A) findings.

We have also held that, even while recognizing that statutory findings are not 

required, ‘“the rights involved are of constitutional magnitude,”’ and ‘“a judgment 

terminating the relationship between a parent and child is impossible to review on appeal 

if it is nothing more than a mere recitation of the conclusions the governing statute 

requires the trial court to reach.”’ In re M.W., 943 N.E.2d 848, 854 (Ind. Ct. App. 2011) 

(quoting In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010), trans. dismissed), trans. 

denied.

1

 Pursuant to Indiana Code Section 31-35-2-8(a), if the trial court finds that the 

allegations in a petition described in Section 4 are true, the parent-child relationship shall 

 

1

In M.W., we held that the trial court’s findings were not supported by clear and convincing evidence, 

given Father’s efforts to comply with the Amended [parental participation] Plan and his imminent release 

from incarceration. 943 N.E.2d at 856.
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be terminated. A determination in accordance with the statute is essentially a conclusion 

of law. In order for the court to properly reach a conclusion of law, it must have made 

some factual findings to support the conclusion. We reiterate: those factual findings 

must rest upon clear and convincing evidence. 

Accordingly, we affirm our original opinion.

BAKER, J., and DARDEN, J., concur.