In re Wardship of R.B., S.B., M.Q.B., M.K.B., & J.B.

615 N.E.2d 494, 1993 Ind. App. LEXIS 697
CourtIndiana Court of Appeals
DecidedJune 21, 1993
DocketNo. 02A03-9212-CV-415
StatusPublished
Cited by6 cases

This text of 615 N.E.2d 494 (In re Wardship of R.B., S.B., M.Q.B., M.K.B., & J.B.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Wardship of R.B., S.B., M.Q.B., M.K.B., & J.B., 615 N.E.2d 494, 1993 Ind. App. LEXIS 697 (Ind. Ct. App. 1993).

Opinion

HOFFMAN, Judge.

Appellant-respondent T.B.H. (mother) appeals from the judgment of the Allen Superior Court which terminated her parental rights with regard to five of her children: R.B., S.B., M.Q.B., M.K.B., and J.B.1 The facts relevant to this appeal disclose that on August 14, 1990, the Allen County Department of Public Welfare (DPW) filed a Child in Need of Services (CHINS) petition on various grounds, including: (1) T.B.H. was a user of crack cocaine, (2) on the day S.B. was born, T.B.H. tested positive for cocaine, (3) while pregnant with S.B., T.B.H. sought no prenatal care, (4) S.B. was born with an addiction to a controlled substance or a legend drug, (5) the physical or mental conditions of R.B., S.B., M.Q.B., M.K.B., and J.B. were seriously impaired as a result of the inability, refusal, or neglect of T.B.H. to supply the children with the necessary food, clothing, shelter, medical care, education, or supervision, (6) because of her drug use, T.B.H. was unable to provide her children with an appropriate home or supervision, and (7) T.B.H. had no legal job to provide support for her children.

On October 29, 1990, an initial hearing was conducted. At the hearing, T.B.H. admitted all the allegations made by the DPW except she denied not having a job. The court found the children to be CHINS. On January 8, 1991, the court entered a [496]*496dispositional decree and adopted a Parent Participation Plan (PPP) for T.B.H. to follow. The PPP ordered T.B.H. to do the following:

“[5] A. Obtain a psychological evaluation upon referral by Department of Public Welfare and follow the recommendations of the therapist.
B. Obtain a drug/alcohol assessment and follow recommendations of therapist.
C. Obtain a General Education Diploma.
D. Obtain parenting classes.
A. Maintain visitation with children.
B. Obtain and maintain stable housing.
C. Obtain and maintain stable income which includes, but not limited to employment.
D. Establish paternity for [R.B.].”

From the time the PPP was ordered in January of 1991 until the final day of the termination hearing on August 12, 1992, three DPW caseworkers worked with T.B.H.. By January 1992’s court review hearing, the only portions of the PPP that T.B.H. had completed were obtaining a drug/alcohol assessment and a psychological evaluation; however, she had not followed through with the recommendations of the assessments. T.B.H. visited with her children only sporadically. T.B.H. also tested positive for cocaine. At the court hearing in January 1992, the court ordered the DPW to file petitions to terminate T.B.H.’s parental rights as to her five children.

On January 15, 1992, the DPW filed the petitions to terminate the parent-child relationships. The fact-finding hearing was held on June 4, 1992 and August 12, 1992. After hearing the evidence, the court found by clear and convincing evidence that there was a reasonable probability that the conditions resulting in the removal of the children would not be remedied and terminated T.B.H.’s parental rights. This appeal ensued.

T.B.H. raises four restated issues for review on appeal:

(1) whether the reasonable probability language contained in IND.CODE § 31-6-5-4(c)(2) (1992 Supp.) violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution;
(2) whether the passage of the clear and convincing standard set forth in IND. CODE § 31-6-7-13(a) (1988 Ed.) implicitly repealed the reasonable probability language found in IND.CODE § 31-6-5-4(c)(2);
(3) whether there was clear and convincing evidence to support a finding by the trial court that the conditions that resulted in the removal of the children from T.B.H.’s custody would not be remedied; and
(4) whether the trial court erred in admitting into evidence results of a drug test.

IND.CODE § 31-6-5-4(c) enumerates the allegation that must be contained in a petition to terminate parental rights. Among these allegations are that:

“(2) there is a reasonable probability that:
(A) the conditions that resulted in the child’s removal will not be remedied; or
(B) the continuation of the parent-child relationship poses a threat to the well-being of the child[.]”

IND.CODE § 31-6-5-4(c)(2). If the trial court finds that the allegations contained in IND.CODE § 31-6-5-4 or 4.2 are true, the court shall terminate the parent-child relationship. IND.CODE § 31-6-5-4.3 (1992 Supp.).

T.B.H. contends that IND.CODE § 31 — 6— 5-4(c)(2) is unconstitutional on its face because it requires a standard lower than clear and convincing evidence for the trial court to grant a petition to terminate parental rights. More specifically, she argues that since IND.CODE § 31-6-5-4(c) contains the words “reasonable probability,” the statute provides for a lesser standard of proof than is constitutionally permissible. This Court has previously rejected this precise contention in Matter of VMS [497]*497(1983), Ind.App., 446 N.E.2d 632, 636, concluding that IND.CODE § 31-6-5-4(c)(2) is indeed constitutional when supported by clear and convincing evidence.

Every statute stands before this Court clothed with the presumption of constitutionality, and such presumption continues until clearly overcome by a showing to the contrary. Matter of VMS, 446 N.E.2d at 636. Under the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Indiana law, procedural due process requires the DPW to prove the statutory requisites for termination of parent-child relationships by clear and convincing evidence.

See Santosky v. Kramer (1982), 455 U.S.
745, 769, 102 S.Ct. 1388, 1402-1403, 71 L.Ed.2d 599, 616-617;
Matter of VMS, 446 N.E.2d at 636; IND.CODE § 31-6-7-13(a).

As explained in VMS, the Constitutional Due Process requirement of clear and convincing evidence is met when the DPW shows by clear and convincing evidence a reasonable probability that conditions resulting in the child’s removal from his parent’s custody will not be remedied. Matter of VMS, 446 N.E.2d at 636. This assures the court that there is, in fact, a high degree of probability that the conditions will not be remedied — a standard considerably above the more likely than not implications of the preponderance requirement. Id. Like the parents in VMS, T.B.H. has failed to convince us that IND.CODE § 31-6-5-4(c) is unreasonable, oppressive, or otherwise unconstitutional. See id. Further, any contention that IND.CODE § 31-6-5-4 violates substantive due process has been waived as T.B.H. raises this issue for the first time in her reply brief. See Boucher v. Exide Corp. (1986), Ind.App., 498 N.E.2d 402, 404, trans. den. (party may not raise arguments for the first time in reply brief).

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615 N.E.2d 494, 1993 Ind. App. LEXIS 697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-wardship-of-rb-sb-mqb-mkb-jb-indctapp-1993.