MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                 Jun 10 2020, 11:11 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 W.J.                               ATTORNEY FOR APPELLEE
Michael B. Troemel                                        Frances H. Barrow
Lafayette, Indiana                                        Deputy Attorney General
                                                          Indianapolis, Indiana
ATTORNEY FOR APPELLANT M.R.
Jennifer L. Schrontz
Lafayette, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          June 10, 2020
of the Parent-Child Relationship                          Court of Appeals Case No.
of W.J.J (Minor Child)                                    19A-JT-2736
                                                          Appeal from the Tippecanoe
and                                                       Superior Court
                                                          The Honorable Nancy L.
W.J. and M.R. (Parents),                                  Gettinger, Senior Judge
Appellants-Respondents,
                                                          Trial Court Cause No.
        v.                                                79D03-1908-JT-120

Indiana Department of Child
Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2736 | June 10, 2020                      Page 1 of 8
      Bradford, Chief Judge.



                                           Case Summary
[1]   M.R. (“Mother”) and W.J. (“Father”) (collectively, “Parents”) are the

      biological parents of W.J.J. (“Child”). Prior to Child’s birth, Parents’ parental

      rights to another child were terminated. Since his birth, Child has twice been

      adjudicated to be a Child in Need of Services (“CHINS”). During the second

      set of CHINS proceedings, the Department of Child Services (“DCS”)

      requested that the juvenile court find that it was no longer required to make

      reasonable efforts to preserve and reunify the family pursuant to Indiana Code

      section 31-34-21-5.6(b) (“the No Reasonable Efforts Statute”). Following a

      hearing, the juvenile court granted DCS’s motion. DCS subsequently filed a

      petition to terminate Parents’ parental rights to Child. Parents appeal the

      juvenile court’s order granting DCS’s petition. In challenging the termination

      of their parental rights to Child, Parents contend that the No Reasonable Efforts

      Statute is unconstitutional. Because we conclude otherwise, we affirm.



                            Facts and Procedural History
[2]   Parents are the biological parents of Child, who was born on October 26, 2017.

      Child was adjudicated to be a CHINS at birth after his cord tissue tested

      positive for morphine. The case was successfully closed with reunification with

      Mother on June 4, 2018.



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2736 | June 10, 2020   Page 2 of 8
[3]   On March 21, 2019, DCS received a report alleging that Child was a victim of

      neglect due to substance abuse by Mother. On April 1, 2019, Mother was

      observed to be under the influence while acting as Child’s sole caregiver.

      Mother submitted to a drug screen which “returned positive for

      methamphetamine and fentanyl.” Ex. Vol. I, p. 26. On April 4, 2019, DCS

      removed Child from Mother’s care. At the time, Mother “appeared to be under

      the influence of substances as evidenced by the following: hand tremors,

      excessive nervousness, sweating, difficulty keeping eyes open, and she could

      not follow a clear timeline.” Ex. Vol. I, p. 26.


[4]   A few days later, DCS filed a second petition alleging that Child was a CHINS.

      In this petition, DCS indicated that Mother was the sole caregiver of Child

      because Father was incarcerated.1 Mother “admitted to being an addict, and

      indicated [that] she [did] not want to participate in a residential or outpatient

      treatment program[] for her substance[-]abuse issues.” Ex. Vol. I, p. 26. DCS

      also outlined Mother’s history of substance-abuse issues and neglect, stating as

      follows:


              p. Mother was a perpetrator of neglect on 01/22/10 due to
              caregiver impairment with use of marijuana for 2 reports, other
              minors were the Victims; an out-of-home CHINS was filed and
              opened, and the case was successfully closed with reunification
              on 07/09/10.



      1
        The record reveals that Father was incarcerated for the entirety of the underlying CHINS and termination
      proceedings, with the possible exception of a few days. His current release date is scheduled for May 18,
      2022. See https://www.in.gov/apps/indcorrection/ofs/ofs?previous_page=1&detail=163009 (last visited
      May 28, 2020).

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2736 | June 10, 2020                   Page 3 of 8
              q. Mother was a perpetrator of neglect on 11/22/13 due to
              caregiver impairment with use of marijuana and cocaine, another
              minor was the Victim; an out-of-home CHINS was filed and
              opened and ended with reunification with [the child’s] father in
              that case.

              r. Mother was a perpetrator of neglect on 12/02/14 due to
              caregiver impairment with use of marijuana and cocaine, other
              minors were the victims; an out[-]of[-]home CHINS was filed
              and opened and the case was closed with TPR and adoption.


      Ex. Vol. I, p. 26. The juvenile court subsequently adjudged the Child to be a

      CHINS.


[5]   On June 13, 2019, DCS filed a motion in which it requested that the juvenile

      court “issue an order finding that [DCS] is not required to make reasonable

      efforts to preserve and reunify the family” pursuant to the No Reasonable

      Efforts Statute. Appellants’ App. Vol. II p. 19. Parents objected to DCS’s

      motion. Following a hearing, the juvenile court granted DCS’s motion.

      Child’s permanency plan was subsequently changed to adoption.


[6]   On August 7, 2019, DCS filed a petition to terminate Parents’ parental rights to

      Child. The juvenile court conducted an evidentiary hearing on October 16,

      2019, after which it took the matter under advisement. On October 24, 2019,

      the juvenile court entered an order terminating Parents’ parental rights to Child.



                                 Discussion and Decision

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2736 | June 10, 2020   Page 4 of 8
[7]   The Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their child. Bester v.

      Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Although

      parental rights are of a constitutional dimension, the law allows for the

      termination of those rights when parents are unable or unwilling to meet their

      parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001),

      trans. denied. Parental rights, therefore, are not absolute and must be

      subordinated to the best interests of the child. Id. Termination of parental

      rights is proper where the child’s emotional and physical development is

      threatened. Id. The juvenile court need not wait until the child is irreversibly

      harmed such that his physical, mental, and social development is permanently

      impaired before terminating the parent–child relationship. Id.


[8]   In appealing from the termination of their parental rights to Child, Parents do

      not challenge the sufficiency of the evidence to support the juvenile court’s

      order.2 Instead, they challenge the constitutionality of the No Reasonable

      Efforts Statute.


               Whether a statute is constitutional on its face is a question of law.
               When the issue presented on appeal is a pure question of law, we
               review the matter de novo. Further, legislation under
               constitutional attack is clothed in a presumption of




      2
        Parents challenge only one of the juvenile court’s finding, that being that Father was offered services while
      incarcerated. Parents, however, do not challenge any of the juvenile court’s other findings or conclusions
      and, as such, we accept the juvenile court’s findings as true. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind.
      1992) (providing that unchallenged findings of the trial court must be accepted as correct).

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2736 | June 10, 2020                       Page 5 of 8
              constitutionality. The challenger has the burden to rebut 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.


      G.B. v. Dearborn Cty. Div. of Family & Children, 754 N.E.2d 1027, 1031 (Ind. Ct.

      App. 2001) (internal citations omitted). The No Reasonable Efforts Statute

      provides in relevant part,

              Reasonable efforts to reunify a child with the child’s parent,
              guardian, or custodian or preserve a child’s family … are not
              required if the court finds any of the following:
                                              ****
              (4) The 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 under:
                     (A) IC 31-35-2 (involuntary termination involving a
                     delinquent child or a child in need of services)[.]


      Indiana Code § 31-34-21-5.6(b).


[9]   Parents challenge the constitutionality of the No Reasonable Efforts Statute on

      due process grounds. “Federal and state substantive due process analysis is

      identical.” G.B., 754 N.E.2d at 1031. “In setting forth a claim for a violation of

      substantive due process, a party must show either that the law infringes upon a

      fundamental right or liberties deeply rooted in our nation’s history or that the

      law does not bear a substantial relation to permissible state objectives.” Id. In

      concluding that the No Reasonable Efforts Statute did not violate a parent’s due

      process rights, we stated the following:



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2736 | June 10, 2020   Page 6 of 8
               We have previously found that a parent’s fundamental right to
               raise his or her child without undue interference from the state is
               not unlimited because the state has a compelling interest in
               protecting the welfare of children. When parents neglect, abuse,
               or abandon their children, the state has the authority under its
               parens patriae power to intervene. This statute serves that
               compelling interest.

               Further, the challenged statute is not more intrusive than
               necessary to protect the welfare of children. Specifically, the
               statute is narrowly tailored to include only those parents who
               have had at least one chance to reunify with a different child
               through the aid of governmental resources and have failed to do
               so.…

               Because Indiana Code Section 31-34-21-5.6 serves a compelling
               state interest and is narrowly tailored to serve that interest, it does
               not violate substantive due process under the Indiana and United
               States Constitutions.


       Id. at 1032 (internal citations omitted). We reached the same conclusion in

       Matter of S.G. v. Indiana Department of Child Services, 67 N.E.3d 1138, 1145 (Ind.

       Ct. App. 2017).


[10]   Parents “concede[] that the [No Reasonable Efforts Statute] has been upheld

       several times” but “urge this court to review the constitutionality of this statute

       through the eyes and perspective of the child.” Appellants’ Br. p. 8. In support,

       Parents assert that Child had a due process right to be raised by his biological

       parents. Parents cite to no authority for this proposition, and our research has

       uncovered none. Parents merely argue that Child “should have been given the

       opportunity for his parents to succeed, despite their past failings in the prior


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2736 | June 10, 2020   Page 7 of 8
       involuntary TPR” and for Child, “there has been a rush to judgment.”

       Appellants’ Br. p. 13.


[11]   To the contrary, we agree with DCS that “[f]ar from rushing to judgment, DCS

       has spent years working with Parents and their children.” Appellee’s Br. p. 25.

       Parents have not demonstrated an ability to remedy the reoccurring issues that

       have led to the removal of multiple children from their care. The Indiana

       Supreme Court, noting a child’s interest in and need for permanency, has held

       that “children have an interest in terminating parental rights that prevent

       adoption and inhibit establishing secure, stable, long-term, continuous

       relationships.” In re C.G., 954 N.E.2d 910, 917 (Ind. 2011). “A parent’s

       historical inability to provide a suitable environment along with the parent’s

       current inability to do the same supports a finding that termination of parental

       rights is in the best interests of the children.” Lang v. Starke Cty. Office of Family

       & Children, 861 N.E.2d 366, 373 (Ind. Ct. App. 2007). Parents have

       demonstrated both a historical and current inability to provide a safe and

       suitable living environment for Child. As such, considering the applicability of

       the No Reasonable Efforts Statute from Child’s perspective would warrant the

       same result.


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


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2736 | June 10, 2020   Page 8 of 8
