CHINS: SS v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 18 2017, 10:11 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Megan Shipley Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Robert J. Henke
David E. Corey
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: April 18, 2017
I.K. (Minor Child) Court of Appeals Case No.
Child in Need of Services 49A02-1610-JC-2413
and Appeal from the Marion Superior
Court
S.S. (Mother),
The Honorable Heather Welch,
Appellant-Respondent, Special Judge
v. Trial Court Cause No.
49D09-1602-JC-545
The Indiana Department of
Child Services,
Appellee-Petitioner.
Robb, Judge.
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Case Summary and Issues
[1] S.S. (“Mother”) appeals the juvenile court’s adjudication of her child, I.K.
(“Child”), as a child in need of services (“CHINS”). Mother raises two issues
on appeal: 1) whether Indiana Code section 31-34-21-5.6 (“No Reasonable
Efforts Statute”) is unconstitutional as applied to her, and 2) whether the
juvenile court abused its discretion in concluding the Department of Child
Services (“DCS”) need not provide reasonable efforts to reunify Mother and
Child. Concluding the No Reasonable Efforts Statute is not unconstitutional as
applied to Mother and the juvenile court did not abuse its discretion, we affirm.
Facts and Procedural History
[2] Mother is the biological parent of ten children. She has an extensive history
with DCS, including at least thirteen reported instances of child abuse or
neglect, and her parental rights to two children were previously terminated. In
addition, we recently affirmed a juvenile court’s adjudication of four of her
children as CHINS. See Matter of S.G. v. Ind. Dep’t of Child Servs., 67 N.E.3d
1138, 1139-44 (Ind. Ct. App. 2017) (providing a detailed factual summary of
Mother’s history with DCS). There, Mother raised the same two issues she
raises today.
[3] At thirty-six years old, Mother gave birth to Child, her youngest, on February
11, 2016. When Mother was admitted to the hospital to give birth, she tested
positive for cocaine and Child’s umbilical cord also tested positive for cocaine.
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DCS was notified the following day of Mother’s drug test results and removed
Child from Mother’s care.
[4] On February 16, 2016, DCS filed a petition alleging Child was a CHINS. On
April 26, 2016, the guardian ad litem and DCS filed a joint motion requesting
the juvenile court find DCS need not provide reasonable efforts to reunify
Mother and Child pursuant to the No Reasonable Efforts Statute, citing the
termination of Mother’s parental rights to two other children. Following a
hearing on the motion and a fact-finding hearing, the juvenile court adjudicated
Child a CHINS and concluded DCS need not provide reasonable efforts to
reunify Mother and Child. On September 30, 2016, the juvenile court issued its
dispositional and permanency order, ordering no services be provided to
Mother and approving adoption as the permanency plan. This appeal ensued.
Additional facts will be added as necessary.
Discussion and Decision
[5] Mother challenges the juvenile court’s determination that DCS need not
provide reasonable efforts to reunify her with Child. Generally, DCS is legally
required to make reasonable efforts to preserve and reunify families once a child
has been declared a CHINS. Ind. Code § 31-34-21-5.5(b)(2). However, Indiana
Code section 31-34-21-5.6(b)(4) provides DCS is not required to make
reasonable efforts if “[t]he parental rights of a parent with respect to a biological
or adoptive sibling of a child who is a child in need of services have been
involuntarily terminated by a court . . . .” Here, the juvenile court concluded
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reasonable efforts are not required because Mother’s parental rights to two
children were previously involuntarily terminated.
[6] On appeal, Mother first contends the No Reasonable Efforts Statute is
unconstitutional as applied to her.
Whether a statute is constitutional on its face is a question of law,
which our court reviews de novo. Statutes are clothed in a
presumption of constitutionality. Thus, an individual
challenging the constitutionality of a statute bears the burden of
rebutting this presumption. All reasonable doubts must be
resolved in favor of an act’s constitutionality. When a statute can
be so construed to support its constitutionality, we must adopt
such a construction.
Matter of S.G., 67 N.E.3d at 1144 (citations and internal quotation marks
omitted). However, upon review of Mother’s Appellant’s Brief in both this case
and in Matter of S.G., see infra, we note the argument sections addressing the
constitutionality of the statute in each brief are identical. Mother cites to no
facts or additional authority relevant to Child that would dissuade us from
applying our decision in Matter of S.G. to the instant case. For this reason, we
refer to Matter of S.G. and conclude the No Reasonable Efforts Statute is not
unconstitutional as applied to Mother. Id. at 1144-46.
[7] Mother also argues the juvenile court abused its discretion in applying the No
Reasonable Efforts Statute to this case. Again, Mother also raised this issue in
Matter of S.G. and the arguments in both briefs are vastly similar, each
contending the evidence shows Mother was and is capable of participating in
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services and reunifying with her children. In addressing this argument in Matter
of S.G., we concluded Mother’s claim held no merit, reasoning as follows:
Between 1999 and 2016, DCS substantiated at least thirteen
instances of child abuse or neglect against Mother, which
resulted in eleven separate CHINS cases involving all of her
children at various points, as well as the termination of her
parental rights to two children. . . . We agree with Mother that
she has previously demonstrated an ability to reunify with her
children; yet . . . her failure to take advantage of multiple
opportunities to make permanent changes in her life has resulted
in a perpetual cycle of instability for all of her children.
Id. at 1145-46. We see and Mother points out no differences between the
instant case and Matter of S.G. and we therefore conclude the juvenile court did
not abuse its discretion in applying the No Reasonable Efforts Statute to the
instant case.
Conclusion
[8] We conclude the No Reasonable Efforts Statute is not unconstitutional as
applied to Mother and the juvenile court did not abuse its discretion in applying
the statute to this case. Accordingly, we affirm.
[9] Affirmed.
Vaidik, C.J., and Bailey, J., concur.
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