Rush, Chief Justice.
Few liberties are as central to our society as the right of parents to raise their children. Our General Assembly has thus set a high bar for terminating parental rights — requiring a termination petition to allege four defined elements and commanding dismissal when DCS fails to prove each element by clear and convincing evidence.
The first required element establishes three waiting periods to give parents time to reunify with their children, and bars DCS from seeking termination until one of those three periods has passed. Here, DCS failed to allege the only one of those waiting periods that had in fact passed — that Father's daughters had been removed from him for at least six months under a dispositional decree. Finding this missing element fatal to DCS's petitions to terminate Father's parental rights, we reverse and remand.
D.B. (Father) and V.G. (Mother) lived in Montgomery County with five young children: their two daughters, Bi.B. and Br. B., and Mother's three sons from a prior relationship. In April 2014, the Indiana Department of Child Services (DCS) learned that the parents were using methamphetamine and leaving the children unsupervised in their trash-ridden house. Soon after, on DCS's petitions, the court found that the children were in need of services (CHINS).
Then on July 14, 2014, DCS removed the children due to the parents' domestic violence, lack of supervision, and continued methamphetamine use. The next month, the trial court's modified dispositional order approved that removal and required the parents to participate in various services, including drug treatment and supervised visitation. But their participation in services was sporadic, and on October 9, 2015, DCS petitioned for termination of parental rights (TPR).
DCS's petitions regarding Bi.B. and Br.B. addressed, among other things, the statutory requirement that at least one of three waiting periods had passed. Specifically, DCS alleged that the second and third waiting periods applied:
DCS did not, however, allege the first waiting period applied — that "[t]he child has been removed from the parent for at least six (6) months under a dispositional decree." Ind. Code § 31-35-2-4(b)(2)(A)(i) (Supp. 2012).
At the consolidated evidentiary hearing on the petitions, Father argued that DCS failed to prove the two periods it alleged and failed to allege the one period it could have proved. First focusing on subsection (iii), he argued that DCS filed the petitions five days short of the fifteen-month anniversary of the girls' removal — noting the girls were removed on July 14, 2014, and the petitions were filed on October 9, 2015. And Father added that DCS failed to allege the only applicable statutory waiting period — that the girls had been removed from him for at least six months under a dispositional decree. Nonetheless, the trial court granted DCS's termination petitions, expressly finding that DCS proved both the six-month and fifteen-month waiting periods.
Father and Mother appealed termination of their rights as to their daughters, both parents arguing DCS failed to allege an applicable waiting period, and Father also arguing insufficient evidence supported termination. The Court of Appeals affirmed in a unanimous opinion, recognizing that neither of the waiting-period allegations in the petitions were true, but finding the error harmless because the parents showed no prejudice.
Only Father sought transfer — and only as to DCS failing to prove the alleged waiting periods. We granted his petition, vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).
The parties dispute the interpretation of the statutory waiting-period requirements — a question of law reviewed de novo.
The parties dispute whether DCS complied with the termination of parental rights statutes,
As this Court and the United States Supreme Court have reiterated many times, the right of parents to raise
By statute, termination of parental rights requires DCS to prove four elements — and also to allege them from the outset in its petition.
I.C. § 31-35-2-4(b)(2)(A) (emphasis added). And if the "court does not find that the allegations in the petition are true, the court shall dismiss the petition." I.C. § 31-35-2-8(b) (emphasis added).
The parties agree that subsection (ii) does not apply here, so they focus on the other two subsections — whether DCS proved the fifteen-month basis in subsection (iii) and whether DCS alleged the six-month basis in subsection (i). Guided by the statute's plain language — the "best evidence" of the legislature's intent,
First, the parties dispute whether DCS proved the fifteen-month basis because they disagree on when that threshold must be met. Father says the fifteen months must have passed when the petition is filed, making this particular allegation five days too early. But DCS says those months need only have passed by the evidentiary hearing, which here came well after the fifteen-month mark. Based on the statute's plain language, Father is right.
By using the present tense, not the future, the statute plainly requires that the petition's fifteen-month allegation be true when the petition is filed: "The petition must allege that [the fifteen-month basis] is true." I.C. § 31-35-2-4(b)(2)(A) (emphasis added). The word "is" naturally refers to what exists when the allegation is made — that is, the time of filing — not what will exist at an evidentiary hearing down the road.
Indeed, longstanding precedent has held just that.
Second, the parties disagree whether we should excuse DCS's failure to allege the six-month waiting period in its petitions. Father argues that the omission was fatal, pointing to the statute's command "must allege."
The statute's requirement to allege an applicable waiting period is absolute: "The petition must allege ... 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...." I.C. § 31-35-2-4(b)(2)(A) (emphasis added). "Must" is mandatory language; it leaves no room for good-faith omissions — even when, as here, the six-month basis would in fact apply. And contrary to the liberal construction DCS urges, Indiana precedent has repeatedly read the statute to demand "strict compliance."
Nor do our Trial Rules give us leeway to gloss over this omission. DCS first asks us to find that Father "implied[ly] consent[ed]" to proceeding under the six-month
Next, DCS asks us to construe the petitions liberally to include the missing six-month element in light of Trial Rule 8(F): "All pleadings shall be so construed as to do substantial justice, lead to disposition on the merits, and avoid litigation of procedural points." T.R. 8(F). But we decline that request as well. While courts do construe pleadings, they do not rewrite them — particularly when doing so would bypass a statutory mandate.
In sum, since DCS failed to allege the only waiting period that applied, the trial court erred in terminating Father's parental rights. We next address whether that error was harmless.
Father argues that granting these defective termination petitions was reversible error because the statute's plain language requires dismissal. DCS disagrees, arguing that Father was not prejudiced. Resorting once again to statutory plain-meaning analysis, we agree with Father.
The TPR statutes do not just prescribe what termination petitions must allege; they also tell courts what to do when the allegations are not true. Indiana Code section 31-35-2-8(b) provides, "[i]f the court does not find that the allegations in the petition are true, the court shall dismiss the petition." I.C. § 31-35-2-8(b) (emphasis added). Like "must," "shall" is mandatory, and we cannot engraft qualifying language onto that directive.
We realize that DCS's failure to allege the six-month waiting period was likely a mere drafting error. But a statutory requirement — even one that seems minor or technical — is still a requirement. And here, where that requirement protects the fundamental rights of parents, it takes on particular importance. Terminating Father's parental rights in spite of this pleading defect therefore requires reversal.
DCS failed to prove the waiting periods it alleged and failed to allege the waiting period it could have proved. We thus reverse the termination of Father's parental rights regarding his daughters, Bi.B. and Br.B., and remand for further proceedings consistent with this opinion.
Rucker, David, Massa, and Slaughter, JJ., concur.
I.C. § 31-35-2-4(b)(2)(B)-(D).