In the Matter of the Termination of Parental Rights of A.R. and M.R. (Minor Children), S.R. (Mother) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 18, 2019
• Docket: 18A-JT-2673
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 18 2019, 9:12 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark K. Leeman Curtis T. Hill, Jr. Leeman Law Office and Attorney General of Indiana Cass County Public Defender Robert J. Henke Logansport, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination April 18, 2019 of Parental Rights of A.R. and Court of Appeals Case No. M.R. (Minor Children), 18A-JT-2673 S.R. (Mother), Appeal from the Cass Circuit Court Appellant-Respondent, The Honorable Leo T. Burns, v. Judge The Honorable Stephen R. Kitts, Judge The Indiana Department of Trial Court Cause Nos. Child Services, 09C01-1805-JT-5 Appellee-Petitioner 09C01-1805-JT-6

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2673 | April 18, 2019 Page 1 of 4 [1] S.R. (Mother) appeals the termination of her parental rights of her two minor

children, A.R. and M.R. She argues that Indiana’s burden of proof in

termination of parental rights cases violates the Indiana Constitution. Finding

no constitutional violation, we affirm.

[2] Mother has two children, A.R., born in 2003, and M.R., born in 2004. After

Mother was convicted of several offenses, in 2017, the Department of Child

Services (DCS) filed a petition alleging A.R. and M.R. to be Children in Need

of Services (CHINS). A hearing took place during which Mother admitted the

children were CHINS. In 2018, DCS filed a petition for termination of the

parent-child relationship as to both children. Following a fact-finding hearing,

the juvenile court entered an order to terminate the parent-child relationship.

Mother now appeals.

[3] Mother’s sole argument on appeal is that Indiana’s burden of proof standard for

termination of parental rights is unconstitutional.1 When we review the

constitutionality of an Indiana statute, the statute comes before us afresh,

“‘clothed with the presumption of constitutionality until clearly overcome by a

contrary showing.’” State v. Buncich, 51 N.E.3d 136, 141 (Ind. 2016) (quoting

Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind. 1996)). We resolve all

doubts in favor of the legislation, and if there are multiple interpretations, we

1 Mother does not challenge the juvenile court’s findings of fact; therefore, these unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007). Likewise, Mother does not challenge the juvenile court’s legal conclusions, the result of which is waiver of any argument as to the sufficiency of such findings. See A.D.S. v. Indiana Dep’t of Child Servs., 987 N.E.2d 1150, 1156 n.4 (Ind. Ct. App. 2013).

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2673 | April 18, 2019 Page 2 of 4 will choose the path that upholds the statute. Id. The party seeking to strike

down the statute bears the burden of proof, and that burden is particularly

heavy where, as here, she challenges the statute on its face: the claimant must

show “‘no set of circumstances under which the statute can be constitutionally

applied.’” Id. (quoting Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999)).

[4] Indiana Code section 31-34-12-2 provides that “a finding in a proceeding to

terminate parental rights must be based upon clear and convincing evidence.”

Mother contends that the “clear and convincing” standard in termination cases

is unconstitutional under Article 1, Section 12 of the Indiana Constitution,

which provides in relevant part that “[a]ll courts shall be open; and every

person, for injury done to him in his person, property, and reputation, shall

have remedy by due course of law.” She contends that the burden should be

“beyond a reasonable doubt” based on possible injuries to reputation that could

arise from a termination case.

[5] In Santosky v. Kramer, the United States Supreme Court held that, in

termination proceedings, a “clear and convincing evidence” standard of proof

“adequately conveys to the factfinder the level of subjective certainty about his

factual conclusions necessary to satisfy due process.” 455 U.S. 745, 769 (1982).

The Court further held “that determination of the precise burden equal to or

greater than that standard is a matter of state law properly left to state

legislatures and state courts.” Id. at 769-70. Following Santosky, Indiana

adopted the clear and convincing standard as its burden of proof in termination

cases. See Ellis v. Knox Cty. Dep’t of Pub. Welfare, 433 N.E.2d 847 (Ind. Ct. App.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2673 | April 18, 2019 Page 3 of 4 1982). Our Court has previously found that the clear and convincing burden of

proof standard in termination cases does not violate any constitutional rights.

See, e.g., In re Wardship of R.B., 615 N.E.2d 494, 497 (Ind. Ct. App. 1993).

[6] Here, Mother argues that because termination of parental rights is among the

most damaging injuries that the State can inflict on a person’s reputation,

termination proceedings should require the highest burden of proof. Yet “[t]he

legislature has wide latitude in defining the existence and scope of a cause of

action and in prescribing the available remedy,” KS&E Sports v. Runnels, 72

N.E.3d 892, 906 (Ind. 2017), and our legislature was within its right to

determine the burden of proof in termination cases to be the clear and

convincing standard. Mother has not met her burden to show that this standard

of proof for termination proceedings is unconstitutional.

[7] The judgment of the juvenile court is affirmed.

Najam, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2673 | April 18, 2019 Page 4 of 4