Termination: D H v. A C

• Court: Indiana Court of Appeals
• Decided: December 21, 2023
• Docket: 23A-JT-01369
• Status: Published

Opinion

FILED Dec 21 2023, 9:09 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

APPELLANT, PRO SE ATTORNEY FOR APPELLEES D.H. Timothy R. Stoesz New Castle, Indiana Stoesz & Stoesz Noblesville, Indiana

IN THE COURT OF APPEALS OF INDIANA

D.H., December 21, 2023 Appellant-Respondent, Court of Appeals Case No. 23A-JT-1369 v. Appeal from the Hamilton Superior Court A.C., C.C., and S.R., The Honorable Appellees-Petitioners Andrew R. Bloch, Magistrate Trial Court Cause No. 29D03-2212-JT-1804

Opinion by Judge Vaidik Judges Bradford and Brown concur.

Court of Appeals of Indiana | Opinion 23A-JT-1369 | December 21, 2023 Page 1 of 9 Vaidik, Judge.

Case Summary [1] D.H. impregnated his girlfriend’s fourteen-year-old daughter, S.R., who gave

birth to a daughter of her own. D.H. pled guilty to sexual misconduct with a

minor and received a lengthy prison sentence. S.R. then petitioned to terminate

D.H.’s parental rights under Indiana Code section 31-35-3.5-3, which provides

that if a child was conceived as a result of “an act of rape,” the victim-parent

can seek to terminate the rights of the perpetrator-parent. The trial court granted

the petition, interpreting the phrase “act of rape” broadly to extend beyond the

rape statute and include any sexual intercourse between an adult and a person

under sixteen.

[2] What the parties and the trial court didn’t realize is that a different statute in

another part of Title 31 defines “act of rape” as (1) “an act described in” the

rape statute or (2) an act of child molesting (where the victim is under fourteen)

involving deadly force, a deadly weapon, serious injury, or drugging. See Ind.

Code § 31-9-2-0.9. Because the trial court didn’t consider whether D.H.

committed an act described in the rape statute, we must reverse the termination

order. But because the case wasn’t litigated or decided under the proper

statutory framework, we remand the matter to the trial court for a new

termination hearing focused on the controlling definition of “act of rape.”

Court of Appeals of Indiana | Opinion 23A-JT-1369 | December 21, 2023 Page 2 of 9 Facts and Procedural History I. Statutory Framework [3] We begin by setting forth the relevant statutes. The termination statute, Indiana

Code section 31-35-3.5-3, states, in relevant part:

[I]f a child was conceived as a result of an act of rape, the parent who is the victim of the act of rape may file a verified petition with the juvenile or probate court to terminate the parent-child relationship between the child and the alleged perpetrator of the act of rape.

The statute doesn’t require a rape conviction, or even a rape charge, only “an

act of rape.” The statute doesn’t define “act of rape,” but another statute does.

Indiana Code section 31-9-2-0.9 provides:

“Act of rape”, for purposes of IC 31-35-3.5, means an act described in:

(1) IC 35-42-4-1; or

(2) IC 35-42-4-3(a) that:

(A) is committed by using or threatening the use of deadly force or while armed with a deadly weapon;

(B) results in serious bodily injury; or

(C) is facilitated by furnishing the victim, without the victim’s knowledge, with a drug (as defined in IC 16-42-19-2(1)) or a controlled substance (as

Court of Appeals of Indiana | Opinion 23A-JT-1369 | December 21, 2023 Page 3 of 9 defined in IC 35-48-1-9) or knowing that the victim was furnished with the drug or controlled substance without the victim’s knowledge.

Section 35-42-4-3 is the child-molesting statute, which applies only when the

victim is under fourteen. The first statute listed—Indiana Code section 35-42-4-

1—is the rape statute.

[4] The rape statute provides, in relevant part:

[A] person who knowingly or intentionally has sexual intercourse with another person or knowingly or intentionally causes another person to perform or submit to other sexual conduct (as defined in IC 35-31.5-2-221.5) when:

(1) the other person is compelled by force or imminent threat of force;

(2) the other person is unaware that the sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5) is occurring;

(3) the other person is so mentally disabled or deficient that consent to sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5) cannot be given; or

(4) the person disregarded the other person’s attempts to physically, verbally, or by other visible conduct refuse the person’s acts;

commits rape, a Level 3 felony.

Court of Appeals of Indiana | Opinion 23A-JT-1369 | December 21, 2023 Page 4 of 9 I.C. § 35-42-4-1(a).

[5] One other statute is important to our discussion—the sexual-misconduct-with-a-

minor statute, under which D.H. was charged and convicted. Indiana Code

section 35-42-4-9 provides, in relevant part:

(a) A person at least eighteen (18) years of age who knowingly or intentionally performs or submits to sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5) with a child less than sixteen (16) years of age, commits sexual misconduct with a minor, a Level 5 felony. However, the offense is:

(1) a Level 4 felony if it is committed by a person at least twenty-one (21) years of age; and

(2) a Level 1 felony if it is committed by using or threatening the use of deadly force, if it is committed while armed with a deadly weapon, if it results in serious bodily injury, or if the commission of the offense is facilitated by furnishing the victim, without the victim’s knowledge, with a drug (as defined in IC 16-42-19-2(1)) or a controlled substance (as defined in IC 35-48-1-9) or knowing that the victim was furnished with the drug or controlled substance without the victim’s knowledge.

The definition of “act of rape” makes no mention of this statute. Of course, an

act described in subsection (a)(2) (deadly force, deadly weapon, etc.) would

almost certainly satisfy the rape statute and be an act of rape under the

termination statute. But an act charged under subsection (a)(1) might also

qualify. Some sex acts charged, in the prosecutor’s discretion, as sexual

misconduct with a minor might also be “described” in the rape statute and

Court of Appeals of Indiana | Opinion 23A-JT-1369 | December 21, 2023 Page 5 of 9 therefore implicate the termination statute. For example, sexual intercourse

with a person under sixteen, who attempts to physically, verbally, or by other

visible conduct refuse, would satisfy the rape statute and would constitute an

act of rape under the termination statute even if the prosecutor chose to charge

only sexual misconduct with a minor.

[6] With the statutory framework in place, we turn to this case.

II. Factual Background [7] D.H., a man in his mid-twenties, had sex with his girlfriend’s two teenage

daughters, including S.R., who was fourteen. S.R. became pregnant and gave

birth to a daughter. D.H. was charged with two counts of sexual misconduct

with a minor, pled guilty, and was sentenced to fifteen years in prison.

[8] Though incarcerated, D.H. filed a pro se paternity action seeking to establish

custody, parenting time, and child support. Understandably, S.R. didn’t want

D.H. involved in her daughter’s life, so she and the child’s court-appointed

guardians initiated a separate action seeking to terminate D.H.’s parental rights

under Section 31-35-3.5-3. After a hearing, the trial court granted the petition

and terminated D.H.’s rights. The court found it “clear” that “an act of rape

occurred” because “[i]t is well established that a minor cannot consent to sexual

intercourse with an adult.” Appellant’s App. Vol. II pp. 3-4. At no point in the

petition, the hearing on the petition, or the trial court’s order was there any

mention of Indiana Code section 31-9-2-0.9, the statute that expressly limits the

scope of the phrase “act of rape.”

Court of Appeals of Indiana | Opinion 23A-JT-1369 | December 21, 2023 Page 6 of 9 [9] D.H. now appeals.

Discussion and Decision [10] As they did in the trial court, the parties debate the meaning of “act of rape”

without mentioning the statute that defines the phrase. D.H. contends that if he

had committed an act of rape, the State would have charged him with rape

under Indiana Code section 35-42-4-1 rather than charging him with sexual

misconduct with a minor under Indiana Code section 35-42-4-9. S.R. and the

guardians respond that the phrase “act of rape” goes beyond the rape statute.

They argue that sexual intercourse with a person under sixteen fits “the

common meaning of rape,” Appellee’s Br. p. 8, because “[i]t has long been

Indiana law that an individual under the age of sixteen (16) cannot give

consent,” id. at 6 (citing Williams v. State, 383 N.E.2d 416, 417 (Ind. Ct. App.

1978)).

[11] If we were just interpreting the language of the termination statute (Section 31-

35-3.5-3), we would probably agree with the appellees and affirm the

termination order. The statute says “an act of rape” but doesn’t require a rape

conviction and doesn’t incorporate or otherwise reference the rape statute, such

as by stating “an act of rape (as defined in IC 35-42-4-1).” As such, we would be

inclined to construe the phrase broadly, as the trial court did, to include an

adult’s sexual intercourse with a person who is under sixteen and therefore

incapable of meaningful consent.

Court of Appeals of Indiana | Opinion 23A-JT-1369 | December 21, 2023 Page 7 of 9 [12] But the termination statute doesn’t stand alone. Indiana Code section 31-9-2-0.9

limits the phrase “act of rape” to the acts described in the rape statute (and

some acts described in the child-molesting statute, which is inapplicable here

because S.R. wasn’t under fourteen). Under the rape statute, sexual intercourse

is rape only when the victim (1) is compelled by force or the threat of force, (2)

is unaware that the intercourse is occurring, (3) is so mentally disabled or

deficient that consent cannot be given, or (4) attempts to physically, verbally, or

by other visible conduct refuse the intercourse. Because the trial court found—

reasonably, but incorrectly—that any sexual intercourse between an adult and a

person under sixteen is an act of rape under the termination statute, it didn’t

address whether D.H.’s intercourse with S.R. involved any of the circumstances

listed in the rape statute. Without such a finding, we must reverse the

termination order.

[13] Under the circumstances, however, the best course of action is to hold a new

termination hearing. The first time around, no one in the courtroom was aware

of the statutory definition of “act of rape,” so the case was litigated and decided

based on an incomplete and mistaken understanding of the relevant statutes.

Therefore, we remand this matter to the trial court for a new termination

hearing focused on the controlling definition.

[14] We also ask the legislature to revisit this statutory scheme. Sexual intercourse

between an adult and a child under sixteen is almost always a serious felony—

either child molesting or sexual misconduct with a minor (there are limited

exceptions identified in the statutes). See I.C. §§ 35-42-4-3(a), 35-42-4-9(a). But

Court of Appeals of Indiana | Opinion 23A-JT-1369 | December 21, 2023 Page 8 of 9 not all victims of these crimes who become pregnant can seek relief under the

termination statute. As it exists now, an “act of rape” is limited to only those

acts described in (1) the rape statute or (2) a section of the child-molesting

statute describing the most aggravated acts of molestation (e.g., sexual

intercourse where the under-fourteen victim is threatened with deadly force,

seriously injured, or drugged).

[15] Significantly, this means that teenage victims of sexual misconduct with a

minor, and many victims of child molesting, cannot seek termination under

Section 31-35-3.5-3 unless they can prove that the felony sex crimes committed

against them are also covered by the rape statute. This allows for some

troubling outcomes. For example, a fourteen-year-old girl who is physically

forced to have sex with a forty-year-old man can seek termination, but a

fourteen-year-old girl who silently endures the sex in paralyzing fear cannot.

We encourage the legislature to consider expanding the statutes to include all

acts of child molesting and sexual misconduct with a minor.

[16] Reversed and remanded.

Bradford, J., and Brown, J., concur.

Court of Appeals of Indiana | Opinion 23A-JT-1369 | December 21, 2023 Page 9 of 9