In the Matter of the Termination of the Parent-Child Relationship of S.C. K.W. (Mother) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 6, 2019
• Docket: 18A-JT-2998
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 06 2019, 10:32 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark K. Leeman Curtis T. Hill, Jr. Logansport, Indiana Attorney General of Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination May 6, 2019 of the Parent-Child Relationship Court of Appeals Case No. of S.C. 18A-JT-2998 K.W. (Mother), Appeal from the Cass Circuit Court Appellant-Respondent, The Honorable Stephen Kitts, v. Judge Trial Court Cause No. The Indiana Department of 09C01-1807-JT-11 Child Services, Appellee-Petitioner.

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2998 | May 6, 2019 Page 1 of 5 STATEMENT OF THE CASE [1] Appellant-Respondent, K.W. (Mother), appeals the termination of her parental

rights to her minor child, S.C. (Child).

[2] We affirm.

ISSUE [3] Mother raises one issue on appeal, which we restate as: Whether the “clear and

convincing” evidence burden of proof standard in termination of parental rights

cases violates the Indiana Constitution.

FACTS AND PROCEDURAL HISTORY [4] Mother and R.C. (Father) 1 are the parents of Child, born on October 3, 2013.

In early April 2017, the Cass County Office of the Indiana Department of Child

Services (DCS) removed the Child from the home she shared with her parents,

following allegations of domestic violence between the parents committed in

the presence of the Child, Mother’s positive drug screen for amphetamine,

methamphetamine, marijuana, cocaine, heroin, morphine, and hydrocodone,

and Father’s positive drug screen for amphetamine, methamphetamine, and

marijuana.

1 Father does not appeal the trial court’s termination of his parental rights.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2998 | May 6, 2019 Page 2 of 5 [5] On August 16, 2017, the trial court adjudicated Child to be a Child in Need of

Services. On July 5, 2018, DCS filed a petition for the involuntary termination

of parental rights. On November 14, 2018, following a fact-finding hearing, the

trial court entered its Order to terminate the parent-child relationship.

[6] Mother now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION [7] Mother’s sole argument on appeal focuses on the perceived unconstitutionality

of the burden of proof standard in Indiana. 2 Claiming that the termination of a

parent’s rights to his or her child is among the most damaging injuries the State

can inflict on a person’s reputation, Mother contends that Indiana should

implement proof beyond a reasonable doubt as its standard, instead of the

current clear and convincing burden of proof.

[8] In approaching a consideration of the constitutionality of a statute, we must at

all times exercise self-restraint. Sidle v. Majors, 341 N.E.2d 763, 766 (Ind. 1976),

cert. denied, 429 U.S. 945 (1976). Otherwise, under the guise of limiting the

legislature to its constitutional bounds, we are likely to exceed our own. Id.

Therefore, when we review the constitutionality of an Indiana statute, the

statute “stands before us clothed with the presumption of constitutionality until

2 Because Mother does not challenge the trial court’s finding of facts or conclusions thereon, the sufficiency of these stand as proven. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) (When factual findings are not directly challenged as clearly erroneous, they must be accepted as correct); A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 n.4 (legal conclusions not challenged are waived for review).

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2998 | May 6, 2019 Page 3 of 5 clearly overcome by a contrary showing.” Boehm v. Town of St. John, 675

N.E.2d 318, 321 (Ind. 1996). We resolve all doubts in favor of the legislature

and, if there are two reasonable interpretations of a statute, one which is

constitutional and the other not, we will choose that path which permits

upholding the statute. Id. We will not presume that the legislature violated the

constitution unless such is required by the unambiguous language of the statute.

Id.

[9] 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 this standard 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 a possible injury to

reputation that could arise from a termination case as “the loss of reputation . . .

to an honorable man is dearer than life itself.” (Appellant’s Br. p. 13) (citing

Comment of Delegate Phineas Kent, in 2 Report of the Debates and

Proceedings of the Convention for the Revision of the Constitution of the State

of Indiana, 1373).

[10] In Santosky v. Kramer, 455 U.S. 745, 769 (1982), the United States Supreme

Court held that, in termination proceedings, a “clear and convincing” standard

of proof “adequately conveys to the factfinder the level of subjective certainty

about his factual conclusions necessary to satisfy due process.” The Court held

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2998 | May 6, 2019 Page 4 of 5 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. In response to Santosky, Indiana adopted the clear and convincing

standard as its burden of proof in termination proceedings. See Ellis v. Knox Cty.

Dep’t of Pub. Welfare, 433 N.E.2d 847 (Ind. Ct. App. 1982). We have previously

addressed the constitutionality of this burden of proof in favor of upholding the

statute. See, e.g., Castro v. State Office of Family & Children, 842 N.E.2d 367, 377

(Ind. Ct. App. 2006) (“Our General Assembly has adopted the clear and

convincing standard for termination cases, the Indiana Supreme Court has

consistently applied it, and the United States Supreme Court has held that such

a standard satisfies the requirements of due process”). Accordingly, as our

legislature was within its right to establish the burden of proof in termination

cases to be the clear and convincing standard, we find that Mother’s argument

fails.

CONCLUSION [11] Based on the foregoing, we hold that the “clear and convincing” evidence

burden of proof standard in termination of parental rights cases does not violate

the Indiana Constitution.

[12] Affirmed.

[13] Bailey, J. and Pyle, J. concur

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