MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be
                                                                            Jun 26 2019, 9:57 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.
Leeman Law Office and Cass County                            Attorney General of Indiana
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                             June 26, 2019
of the Parent-Child Relationship                             Court of Appeals Case No.
of K.G., Mother, D.B., Father,1                              18A-JT-3024
and N.G. and B.B., Minor                                     Appeal from the
Children,                                                    Cass Circuit Court
K.G.,                                                        The Honorable
                                                             Leo T. Burns, Judge
Appellant-Respondent,
                                                             Trial Court Cause Nos.
         v.                                                  09C01-1806-JT-9
                                                             09C01-1806-JT-10
Indiana Department of Child
Services,



1
 We note that, although Father’s parental rights were also terminated, he does not join in this appeal.
However, under Indiana Appellate Rule 17(A), a party of record in the trial court shall be a party on appeal.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-3024 | June 26, 2019                        Page 1 of 5
      Appellee-Petitioner.




      Kirsch, Judge.


[1]   K.G. (“Mother”) appeals the juvenile court’s order terminating her parental

      rights to her minor children, N.G. and B.B. Mother raises the following

      restated issue on appeal: whether the clear and convincing evidence burden of

      proof in termination of parental rights cases is unconstitutional because it

      violates the Indiana Constitution.


[2]   We affirm.


                                  Facts and Procedural History
[3]   Mother and D.B. (“Father”) are the parents of N.G., born in 2009, and B.B.,

      born in 2013 (together, “Children”). In June 2017, the Indiana Department of

      Child Services (“DCS”) removed Children from the home of Mother and

      Father and filed a petition alleging Children to be children in need of services

      (“CHINS”), which alleged, among other things, that: (1) Mother and Father

      engaged in acts of domestic violence in the presence of Children; (2) Mother

      presented with various sores on her face and neck; (3) Father presented with

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      various sores on his calves and ankles; (4) parents admitted a history of

      methamphetamine use; (5) Father admitted to recent use of prescription

      medication without a valid prescription; (6) a child in the home tested positive

      for methamphetamine; (7) Mother admitted using methamphetamine with

      Father in the home; and (8) Father refused drug screens. Exs. 1-A, 2-A. A

      hearing took place where Mother admitted that Children were CHINS, and a

      dispositional decree was entered, ordering Mother to engage in various services

      and comply with directives from the juvenile court. Exs. 1-H, 2-H. On June 6,

      2018, DCS filed a petition to terminate Mother’s parental rights to Children.

      Following a fact-finding hearing, the juvenile court issued an order terminating

      Mother’s parental rights to Children. Mother now appeals.


                                        Discussion and Decision
[4]   Mother’s sole argument on appeal is that the burden of proof standard for

      termination of parental rights in Indiana is unconstitutional.2 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 (citing Zoeller v.

      Sweeney, 19 N.E.3d 749, 751 (Ind. 2014) (quoting Boehm v. Town of St. John, 675




      2
        Mother does not challenge the juvenile court’s findings of fact. Therefore, these unchallenged findings
      stand as proven. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because Madlem does not challenge
      the findings of the trial court, they must be accepted as correct.”). Likewise, Mother does not challenge the
      juvenile court’s conclusions and has, therefore, waived any argument as to the sufficiency of the conclusions.
      See In re J.E., 45 N.E.3d 1243, 1244 n.1 (Ind. Ct. App. 2015) (citing to A.D.S. v. Ind. Dep’t of Child Servs., 987
      N.E.2d 1150, 1156 n.4 (Ind. Ct. App. 2013), trans. denied), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-3024 | June 26, 2019                          Page 3 of 5
      N.E.2d 318, 321 (Ind.1996))). We resolve all doubts in favor of the legislature,

      and therefore, if there are multiple interpretations, we 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, the party

      challenges the statute on its face. Id. In such a situation, “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)).


[5]   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, or reputation, shall have

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

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

      arise from a termination case because terminating parental rights is among the

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


[6]   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

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      legislatures and state courts.” Id. at 769-70. As a result of Santosky, Indiana

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

      terminating parental rights. See Ellis v. Knox Cty. Dep’t of Pub. Welfare, 433

      N.E.2d 847, 848 (Ind. Ct. App. 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., Castro v. State Office of Family &

      Children, 842 N.E.2d 367, 377 (Ind. Ct. App. 2006), trans. denied; In re Wardship

      of R.B., 615 N.E.2d 494, 497 (Ind. Ct. App. 1993), trans. denied.


[7]   In the present case, Mother asserts that proceedings in which parental rights are

      terminated demand the highest level of proof because termination of parental

      rights is one of the most damaging injuries that can be inflicted on a person’s

      reputation, and the Indiana Constitution demands the highest level of proof for

      injuries to reputation. However, “[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, 896 (Ind. 2017). Therefore,

      our legislature was within its right to determine the burden of proof in

      termination cases to be the clear and convincing standard. We conclude that

      Mother has not shown that the clear and convincing standard of proof violates

      the Indiana Constitution.


[8]   Affirmed.


      Vaidik, C.J., and Altice, J., concur.



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