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Indiana Code

Ind. Code § 31-35-2-4.5 (2025)

Petition; filing; motion to dismiss

✓ 2025 Indiana Code: the 2026 session is not included
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     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 or a delinquent child:

(A) has been placed in:

(i) a foster family home, child caring institution, or group home licensed under IC 31-27; or

(ii) the home of a relative (as defined in IC 31-9-2-107(c));

as directed by a court in a child in need of services proceeding under IC 31-34 or a delinquency action under IC 31-37; and

(B) has been removed from a parent and has been under the supervision of the department or county probation department for not less than fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child.

     (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 department shall be joined as a party to the petition.

     (d) A person described in section 4(a) of this chapter may 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 department or the probation department under IC 31-34-15, IC 31-37-19-1.5, or IC 31-37-22-4.5 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 relative (as defined in IC 31-9-2-107(c)).

(2) That:

(A) IC 31-34-21-5.6 is not applicable to the child;

(B) the department or the probation department 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 IC 31-37-19-1.5 or a permanency plan or dispositional decree approved under IC 31-34 or IC 31-37, 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 department 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 IC 31-37-19-1.5, or a permanency plan or dispositional decree approved under IC 31-34 or IC 31-37; and

(C) the services that the department 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.

(4) Subject to subsection (f), that:

(A) the parent is incarcerated or the parent's prior incarceration is a significant factor in the child having been under the supervision of the department or a county probation department for at least fifteen (15) of the most recent twenty-two (22) months;

(B) the parent maintains a meaningful role in the child's life; and

(C) the department has not documented a reason to conclude that it would otherwise be in the child's best interests to terminate the parent-child relationship.

The motion to dismiss shall specify which of the allegations described in subdivisions (1) through (4) apply to the motion. If the court finds that any of the allegations described in subdivisions (1) through (4) are true, as established by a preponderance of the evidence, the court shall dismiss the petition to terminate the parent-child relationship. In determining whether to dismiss a petition to terminate a parent-child relationship pursuant to a motion to dismiss that specifies allegations described in subdivision (4), the court may consider the length of time remaining in the incarcerated parent's sentence and any other factor the court considers relevant.

     (e) If:

(1) a child in need of services or a delinquent child has been removed from a parent and has been under the supervision of the department or county probation department for not less than fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child; and

(2) a petition to terminate the parent-child relationship has not been filed by the department or another person described in section 4(a) of this chapter;

a foster parent, relative of the child, or de facto custodian with whom the child has been placed for at least six (6) months may file a notice with the court that the petition to terminate the parent-child relationship has not been filed as required under subsection (b). Upon the filing of the notice, if the petition to terminate the parent-child relationship has not been filed, the court shall schedule a hearing within thirty (30) days.

     (f) Subsection (d)(4) does not apply if the person was incarcerated for any of the following:

(1) A crime described in IC 31-35-3-4.

(2) A crime of child abuse (as defined in IC 5-2-22-1).

(3) Neglect of a dependent (IC 35-46-1-4) if:

(A) the incarceration was for neglect of a dependent as a Level 5 or above felony; and

(B) the dependent would be the subject of the petition to terminate the parent-child relationship.

     (g) The department may not:

(1) take adverse action against a foster parent's license under IC 31-27-4; or

(2) remove a child from the home of a foster parent, relative of the child, or de facto custodian;

on the basis of the foster parent, relative, or de facto custodian filing a notice with the court under subsection (e).

As added by P.L.35-1998, SEC.20. Amended by P.L.200-1999, SEC.30; P.L.146-2008, SEC.616; P.L.131-2009, SEC.66; P.L.48-2012, SEC.67; P.L.123-2014, SEC.24; P.L.5-2015, SEC.65; P.L.210-2019, SEC.17; P.L.258-2019, SEC.4; P.L.156-2020, SEC.120; P.L.69-2024, SEC.3.

 

Notes of Decisions
Cited in 31 cases, 2000–2020 · leading case: In the Matter of the Involuntary Termination of the Parent-Child Relationship of D.H., K.H., & E.H. (Minor Child.) & L.H. (Mother) v. The Indiana Dep't of Child Servs., 119 N.E.3d 578 (Ind. Ct. App. 2019).
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In the Matter of the Involuntary Termination of the Parent-Child Relationship of D.H., K.H., & E.H. (Minor Child.) & L.H. (Mother) v. The Indiana Dep't of Child Servs., 119 N.E.3d 578 (Ind. Ct. App. 2019). · cites it 11× “I.C. § 31-35-2-4.5(d) ; Phelps v. Sybinsky , 736 N.”
In re Involuntary Termination, 867 N.E.2d 236 (Ind. Ct. App. 2007). · cites it 6× “[3] Eden challenges the validity of the petition because it did not include any references to the factors listed in Indiana Code section 31-35-2-4.5. For our purposes herein, the relevant portion of section 4.”
Phelps v. Sybinsky, 736 N.E.2d 809 (Ind. Ct. App. 2000). · cites it 8× “” Ind.Code § 31-35-2-4.5 (1998). The Phelpses brought a class action challenging the statute on several grounds, and the trial court granted the defendants’ motion to dismiss.”
In re Es, 762 N.E.2d 1287 (Ind. Ct. App. 2002). · cites it 6× “On appeal she asserts three grounds for error: (1) insufficient evidence to support the involuntary termination of her parental rights; (2) failure to comply with Indiana Code § 31-35-2-4.5; and (3) failure to order an independent evaluation.”
In the Matter of the Involuntary Termination of the Parent-Child Relationship of D.H., K.H., & E.H. (Minor Child.) & L.H. (Mother) v. The Indiana Dep't of Child Servs., 122 N.E.3d 832 (Ind. Ct. App. 2019). · cites it 6× “[2] As DCS points out, Indiana Code Section 31-35-2-4.5(d) was amended in 2012 to be permissive rather than mandatory; that is, when filing a petition to terminate parental rights, DCS is no longer required to, but rather permitted to, state whether there is a basis for filing a…”
Termination of the Parent/Child Relationship of M.H.C. v. Hill, 750 N.E.2d 872 (Ind. Ct. App. 2001). · cites it 6× “See Ind.Code § 31-35-2-4.5 (Supp.2000); Ind.Appellate Rule 8.”
James v. Pike Cnty., 759 N.E.2d 1140 (Ind. Ct. App. 2001). · cites it 8× “§ 675 ; Ind.Code § 31-35-2-4.5. In Phelps v. Sybinsky, 736 N.”
Elkins v. Marion Cnty. Off. of Fam. & Child., 736 N.E.2d 791 (Ind. Ct. App. 2000). · cites it 4× “Further, notwithstanding the enactment of Indiana Code section 31-35-2-4.5, the provision of family services is not a requisite element of our parental rights termination statute.”
In the Matter of the Involuntary Termination of the Parent-Child Relationship of Z.B., D.B., L.B., Me.B., Ma.B. (Minor Child.) & A.B. (Mother) v. The Indiana Dep't of Child Servs., 108 N.E.3d 895 (Ind. Ct. App. 2018). · cites it 2× “That is, any "person described in section 4(a)" may-as DCS did here-file a motion to dismiss the petition, asserting "a compelling reason, based on facts and circumstances stated in the petition *900 or motion, for concluding that filing, or proceeding to a final determination…”
In the Termination of the Parent-Child Relationship of: R.L.-P. (Minor Child) & M.E. (Father) v. Indiana Dep't of Child Servs., 119 N.E.3d 1098 (Ind. Ct. App. 2019). · cites it 4× “" Indiana Code section 31-35-2-4(a) provides that A petition to terminate the parent-child relationship involving a delinquent child or a child in need of services may be signed and filed with the juvenile or probate court by any of the following: (1) The attorney for the…”
A.M. v. Indiana Dep't of Child Servs., 45 N.E.3d 471 (Ind. Ct. App. 2015). · cites it 2× “[19] Here, both Indiana Code section 31-35-2-4.5 1 and 42 U.S.C. section 675 (5)(E) 2 use similar language to require *478 DCS to file a petition to terminate parental rights once a child has been under its supervision for fifteen of the most recent twenty-two months.”
In re Jw, 779 N.E.2d 954 (Ind. Ct. App. 2002). · cites it 4× “Mother is referring to Ind.Code § 31-35-2-4.5 (2001), which requires a motion to dismiss the petition to terminate parental rights to be filed if: the current case plan prepared by or under the supervision of the county office of family and children under IC 31-34-15 has…”
Show all 31 citing cases →
Ind. Code § 31-35-2-4.5(a)(2): 1 case
Phelps v. Sybinsky, 736 N.E.2d 809 (Ind. Ct. App. 2000). “” Ind.Code § 31-35-2-4.5 (1998). The Phelpses brought a class action challenging the statute on several grounds, and the trial court granted the defendants’ motion to dismiss.”
Ind. Code § 31-35-2-4.5(d): 6 cases
In the Matter of the Involuntary Termination of the Parent-Child Relationship of D.H., K.H., & E.H. (Minor Child.) & L.H. (Mother) v. The Indiana Dep't of Child Servs., 119 N.E.3d 578 (Ind. Ct. App. 2019). “I.C. § 31-35-2-4.5(d) ; Phelps v. Sybinsky , 736 N.”
In the Matter of the Involuntary Termination of the Parent-Child Relationship of D.H., K.H., & E.H. (Minor Child.) & L.H. (Mother) v. The Indiana Dep't of Child Servs., 122 N.E.3d 832 (Ind. Ct. App. 2019). “[2] As DCS points out, Indiana Code Section 31-35-2-4.5(d) was amended in 2012 to be permissive rather than mandatory; that is, when filing a petition to terminate parental rights, DCS is no longer required to, but rather permitted to, state whether there is a basis for filing a…”
In the Termination of the Parent-Child Relationship of: R.L.-P. (Minor Child) & M.E. (Father) v. Indiana Dep't of Child Servs., 119 N.E.3d 1098 (Ind. Ct. App. 2019). “" Indiana Code section 31-35-2-4(a) provides that A petition to terminate the parent-child relationship involving a delinquent child or a child in need of services may be signed and filed with the juvenile or probate court by any of the following: (1) The attorney for the…”
Phelps v. Sybinsky, 736 N.E.2d 809 (Ind. Ct. App. 2000). “” Ind.Code § 31-35-2-4.5 (1998). The Phelpses brought a class action challenging the statute on several grounds, and the trial court granted the defendants’ motion to dismiss.”
In the Matter of the Termination of the Parent-Child Relationship of L.D.C. & J.C. (Child.) & M.C. (Mother) M.C. (Mother) v. The Indiana Dep't of Child Servs. (mem. dec.), No. 72A01-1709-JT-2204 (Ind. Ct. App. Mar. 21, 2018).
Ind. Code § 31-35-2-4.5(d)(1): 7 cases
In re Involuntary Termination, 867 N.E.2d 236 (Ind. Ct. App. 2007). “[3] Eden challenges the validity of the petition because it did not include any references to the factors listed in Indiana Code section 31-35-2-4.5. For our purposes herein, the relevant portion of section 4.”
In the Matter of the Involuntary Termination of the Parent-Child Relationship of Z.B., D.B., L.B., Me.B., Ma.B. (Minor Child.) & A.B. (Mother) v. The Indiana Dep't of Child Servs., 108 N.E.3d 895 (Ind. Ct. App. 2018). “That is, any "person described in section 4(a)" may-as DCS did here-file a motion to dismiss the petition, asserting "a compelling reason, based on facts and circumstances stated in the petition *900 or motion, for concluding that filing, or proceeding to a final determination…”
James v. Pike Cnty., 759 N.E.2d 1140 (Ind. Ct. App. 2001). “§ 675 ; Ind.Code § 31-35-2-4.5. In Phelps v. Sybinsky, 736 N.”
In the Matter of the Involuntary Term. of the Parent-Child Relationship of A.B. (Minor Child): G.B. (Mother) & C.B. (Father) v. Ind. Dept. of Child Servs. (mem. dec.), No. 85A02-1506-JT-794 (Ind. Ct. App. Mar. 28, 2016).
Fornash v. LaPorte Cnty. Off. of Fam. & Child., 797 N.E.2d 310 (Ind. Ct. App. 2003).
Ind. Code § 31-35-2-4.5(d)(2): 5 cases
In the Matter of the Involuntary Termination of the Parent-Child Relationship of D.H., K.H., & E.H. (Minor Child.) & L.H. (Mother) v. The Indiana Dep't of Child Servs., 119 N.E.3d 578 (Ind. Ct. App. 2019). “I.C. § 31-35-2-4.5(d) ; Phelps v. Sybinsky , 736 N.”
Elkins v. Marion Cnty. Off. of Fam. & Child., 736 N.E.2d 791 (Ind. Ct. App. 2000). “Further, notwithstanding the enactment of Indiana Code section 31-35-2-4.5, the provision of family services is not a requisite element of our parental rights termination statute.”
Termination of Parent-Child Relationship of A.P. v. Porter Cnty. Off. of Fam. & Child., 734 N.E.2d 1107 (Ind. Ct. App. 2000).
Ap v. Pcofc, 734 N.E.2d 1107 (Ind. Ct. App. 2000).
In re the Termination of the Parent-Child Relationship of A.E. (Minor Child) & K.E. (Mother) v. Indiana Dep't of Child Servs. (mem. dec.), 150 N.E.3d 1100 (Ind. Ct. App. 2020).
Ind. Code § 31-35-2-4.5(d)(3): 2 cases
In the Matter of the Involuntary Termination of the Parent-Child Relationship of D.H., K.H., & E.H. (Minor Child.) & L.H. (Mother) v. The Indiana Dep't of Child Servs., 119 N.E.3d 578 (Ind. Ct. App. 2019). “I.C. § 31-35-2-4.5(d) ; Phelps v. Sybinsky , 736 N.”
In re the Termination of the Parent-Child Relationship of L.L. (Minor Child) & J.L. (Mother) v. Indiana Dep't of Child Servs. (mem. dec.), No. 19A-JT-891 (Ind. Ct. App. Oct. 9, 2019).
Ind. Code § 31-35-2-4.5(d)(l): 2 cases
Phelps v. Sybinsky, 736 N.E.2d 809 (Ind. Ct. App. 2000). “” Ind.Code § 31-35-2-4.5 (1998). The Phelpses brought a class action challenging the statute on several grounds, and the trial court granted the defendants’ motion to dismiss.”
Eden v. Johnson Cnty. Dep't of Child Servs., 867 N.E.2d 236 (Ind. Ct. App. 2007).
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