                                                                          FILED
                                                                     Jan 12 2017, 8:25 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Patricia Caress McMath                                     Curtis T. Hill
Indianapolis, Indiana                                      Attorney General of Indiana
                                                           Robert J. Henke
                                                           James D. Boyer
                                                           Deputy Attorneys General
                                                           Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of:                                          January 12, 2017
S.G., L.G., D.G., & A.W.                                   Court of Appeals Case No.
                                                           49A02-1607-JC-1611
Children in Need of Services
                                                           Appeal from the Marion Superior
And                                                        Court
S.S. (Mother),                                             The Honorable Heather Welch,
                                                           Special Judge
Appellant-Respondent,
                                                           Trial Court Cause No.
        v.                                                 49D09-1510-JC-3009, 49D09-1510-
                                                           JC-3010, 49D09-1510-JC-3011 &
                                                           49D09-1510-JC-3012
Indiana Department of Child
Services,
And
Child Advocates, Inc.
Appellee (Guardian ad Litem).




Court of Appeals of Indiana | Opinion 49A02-1607-JC-1611 | January 12, 2017                   Page 1 of 19
      Riley, Judge.


                                    STATEMENT OF THE CASE

[1]   Appellant-Respondent, S.S. (Mother), appeals the trial court’s determination

      that the Indiana Department of Child Services (DCS) need not undertake

      reasonable efforts to reunite her with four of her minor children—A.W., S.G.,

      L.G., and D.G. (collectively, the Children)—following their adjudication as

      children in need of services (CHINS).


[2]   We affirm.


                                                     ISSUES

[3]   Mother raises two issues on appeal, which we restate as follows:

      (1) Whether Indiana Code section 31-34-21-5.6 is unconstitutional; and

      (2) Whether the trial court abused its discretion by ordering that DCS was not

      required to undertake reasonable efforts to reunite Mother with her children.


                            FACTS AND PROCEDURAL HISTORY

[4]   Mother is the biological parent of ten children: D.P., born January 12, 1996;

      J.R., born February 5, 1999; A.R., born September 4, 2001; A.W., born

      January 5, 2003; M.G., born March 1, 2004; A.G., born November 3, 2006;

      S.G., born October 7, 2011; L.G., born December 11, 2012; D.G., born




      Court of Appeals of Indiana | Opinion 49A02-1607-JC-1611 | January 12, 2017   Page 2 of 19
      December 8, 2013; and I.K., born February 11, 2016. Six men have been

      identified as the fathers of these children. 1


[5]   The Marion County DCS first became involved with Mother and her family in

      February of 1999, when J.R. tested positive at birth for marijuana. DCS

      initiated an informal adjustment, and Mother successfully complied with her

      case plan. The case was closed in August of 1999. In February of 2002, DCS

      commenced an investigation after five-month-old A.R. perished in an

      apartment fire while Mother was not at home. DCS substantiated allegations of

      neglect against Mother, but it is unclear as to how that case proceeded.


[6]   In March of 2003, D.P., J.R., and A.W. were adjudicated CHINS after Mother

      used a belt to whip seven-year-old D.P., resulting in a black eye. Mother

      admitted that her actions endangered the children and that she had failed to

      provide adequate supervision. Mother was directed to secure and maintain a

      stable source of income and suitable housing and participate in various services

      recommended by DCS, including, in part: home-based counseling, a parenting

      assessment, a psychological evaluation, a drug and alcohol assessment and

      substance abuse treatment, random drug screens, and visits with the children.

      Mother successfully completed her case plan and was reunited with D.P., J.R.,

      and A.W. in June of 2004.




      1
         The fathers of the Children at issue—A.W. Sr. (father of A.W.); S.G. Sr. (father of S.G.); and D.D.G.
      (father of L.G. and D.G.)—each admitted that their respective child/children are CHINS. The fathers are
      not parties to this appeal, but facts pertaining to them are included where appropriate.

      Court of Appeals of Indiana | Opinion 49A02-1607-JC-1611 | January 12, 2017                    Page 3 of 19
[7]   In March of 2005, D.P., J.R., A.W., and M.G. were adjudicated CHINS

      following a finding that the children were endangered as a result of ongoing

      domestic violence in the home. In addition to the children witnessing the

      physical abuse of Mother by S.G. Sr., J.R.’s body was covered in bruises, A.W.

      had what appeared to be cigarette burns all over his body, 2 and D.P. was

      arrested for taking a firearm to school. Mother was again directed, in part, to

      secure and maintain a source of income and suitable housing and to complete

      services, most of which were the same as in the previous CHINS case: home-

      based counseling, a parenting assessment, parenting classes, a drug and alcohol

      assessment and substance abuse treatment, random drug testing, and visitation

      with the children. Mother was compliant with her case plan, her children were

      returned home, and the case was successfully closed in December of 2005.


[8]   Five months after being reunited with her children, in May of 2006, D.P., J.R.,

      A.W., and M.G. were again adjudicated CHINS. In that case, Mother

      admitted to allegations of endangerment to the children and, in particular, that

      she had physically abused seven-year-old J.R., who sustained scratches on her

      eyes and bruising to her face, and that she had been convicted of Class A

      misdemeanor battery against D.P. 3 For the third time, Mother was ordered to




      2
          According to Mother, A.W. was subsequently diagnosed with “a skin disease.” (Tr. Vol. II, p. 247).
      3
        Mother pled guilty pursuant to a plea agreement and was ordered to serve probation. Mother had a
      probation violation due to her substance abuse and was subsequently incarcerated. It also appears that
      Mother has a 2006 Class D felony conviction for battery against one of her children, for which she was
      incarcerated for “[m]aybe five or six months.” (Tr. Vol. III, p. 85).

      Court of Appeals of Indiana | Opinion 49A02-1607-JC-1611 | January 12, 2017                      Page 4 of 19
      complete the same services as in her two prior CHINS cases. In addition, the

      trial court directed her to ensure that her school-aged children regularly attend

      school and that she participate in a program addressing issues of domestic

      violence. After A.G. was born in November of 2006, she was also adjudicated

      a CHINS because of Mother’s violent history and because Mother’s

      psychological evaluation indicated that the children would not be safe in her

      care. Mother completed all of the necessary services and was reunited with

      D.P., J.R., A.W., M.G., and A.G. in December of 2007.


[9]   Less than a year later, in October of 2008, DCS took D.P., J.R., A.W., M.G.,

      and A.G. into custody. However, no CHINS case was filed, and no services

      were ordered. Eight days after the children were detained, the case was

      dismissed. Then, in October of 2009, D.P., J.R., A.W., M.G., and A.G. were

      adjudicated CHINS after Mother admitted that she lacked the ability to

      appropriately parent the children without assistance and based on her issues

      with domestic violence and substance abuse. At the time, Mother was abusing

      crack cocaine, and DCS alleged that she, in the children’s presence, struck S.G.

      Sr. in the back of the head. Once more, Mother was directed to, in part, secure

      and maintain a source of income and suitable housing, participate in home-

      based counseling, complete a parenting assessment, complete a psychological

      evaluation, undergo random drug testing and intensive outpatient drug

      treatment, and participate in a program to address her domestic violence issues.

      This time, Mother did not comply, and in April of 2011, the trial court granted

      DCS’ request that it be able to pursue a reunification plan of adoption.


      Court of Appeals of Indiana | Opinion 49A02-1607-JC-1611 | January 12, 2017   Page 5 of 19
[10]   In October of 2011, S.G. tested positive for cocaine at birth, and Mother

       admitted to cocaine use during the pregnancy. Mother left S.G. at the hospital,

       and in January of 2012, he was adjudicated a CHINS. Mother was ordered to

       participate in services. According to Mother, at that time, she “was a full

       blown crack head with no direction, no home, no nothing.” (Tr. Vol. III, p.

       24). She was unemployed, “living on the streets and in abandoned houses,”

       and was stealing to feed her daily cocaine habit. (Tr. Vol. III, pp. 24-25). In

       February of 2012, Mother sought substance abuse treatment at the Dove

       Recovery House and remained there until October of 2012. In September of

       2012, Mother had a relapse with cocaine. On October 22, 2012, Mother’s

       parental rights to M.G. and A.G. were terminated. 4 In December of 2012,

       Mother gave birth to L.G., whose meconium tested positive for cocaine. As a

       result, in January of 2013, L.G. was also adjudicated a CHINS, and Mother

       was, again, directed to comply with DCS’ recommended services. In

       November of 2013, Mother’s case was closed and she was reunited with J.R.,

       A.W., S.G., and L.G. 5


[11]   In May of 2014, J.R., A.W., S.G., L.G., and D.G. were removed from the

       home and adjudicated CHINS based on Mother’s admitted failure to provide




       4
         Notwithstanding Mother’s criticism that an affirmation of this court “is worth the paper it’s written on,”
       we do note that our court affirmed the termination order pertaining to M.G. and A.G. in a memorandum
       decision issued on July 30, 2013. In re M.G., No. 49A05-1211-JT-583, 2013 WL 3894158 (Ind. Ct. App. July
       30, 2013), trans. denied. (Tr. Vol. III, p. 216). M.G. and A.G. were adopted in May of 2014.
       5
           The record does not indicate the status of seventeen-year-old D.P. at the time.


       Court of Appeals of Indiana | Opinion 49A02-1607-JC-1611 | January 12, 2017                     Page 6 of 19
       appropriate supervision. In particular, DCS alleged that seventeen-month-old

       L.G. had an unexplained elbow fracture. Although not admitted by Mother as

       part of the CHINS adjudication, DCS also cited concerns about J.R.’s history

       of running away, as well as J.R.’s report to DCS that Mother physically abused

       all of the children. The trial court ordered Mother to participate in home-based

       case management services and therapy. By the summer of 2014, the children

       were returned home for a trial in-home visit, and Mother was actively

       participating in services. In December of 2014, the trial court closed the

       CHINS case with respect to A.W. and S.G, and in March of 2015, the trial

       court closed the CHINS case for J.R., L.G., and D.G.


[12]   On September 7, 2015, sixteen-year-old J.R. was taken into DCS custody based

       on allegations that Mother was neglecting her. In particular, DCS received

       information that J.R. was homeless. J.R. reported that Mother had kicked her

       out of the home in April of 2015 and subsequently moved residences without

       informing J.R. J.R. was also nine weeks pregnant and did not have access to

       prenatal care. CHINS proceedings were commenced for J.R.


[13]   The instant case arose on October 2, 2015, when the Marion County DCS

       received a report that Mother was physically abusing and neglecting the

       Children. In particular, the report alleged that twelve-year-old A.W. had run

       away from home after Mother “busted his head with a stick.” (Appellant’s

       App. Vol. II, p. 73). The reporting source further indicated that A.W. had not

       been seen for three weeks, and Mother was notifying her neighbors that he was

       dead. An anonymous neighbor informed DCS that Mother had stated that she

       Court of Appeals of Indiana | Opinion 49A02-1607-JC-1611 | January 12, 2017   Page 7 of 19
       was happy that A.W. was dead because it relieved her of having to deal with

       him. In the complaint made to DCS, it was also reported that Mother “kicked

       [three-year-old S.G.] so hard he could not walk” and slapped one-year-old

       D.G., both of whom were purportedly covered in bruises. (Appellant’s App.

       Vol. II, p. 73). It was also stated that Mother “hits all of her [C]hildren” with

       “whatever she can get her hands on.” (Appellant’s App. Vol. II, p. 74).

       Finally, the caller described to DCS that Mother, who was seven months

       pregnant with I.K. at the time, drinks alcohol all day long and spends any

       money that she has on cocaine and synthetic marijuana.


[14]   On October 6, 2015, DCS made contact with Mother via telephone. The DCS

       family case manager identified herself to Mother, but Mother apparently

       believed she was speaking with someone at Eskenazi Hospital and began

       cursing and demanding that the call be transferred to the morgue because she

       needed to identify A.W.’s body. When DCS was finally able to make it clear to

       Mother with whom she was speaking, Mother stated that she would not speak

       to DCS and ended the call. Later that day, two DCS family case managers

       went to Mother’s home, and although they could hear noises from inside the

       house, their knocking went unanswered. An officer from the Indianapolis

       Metropolitan Police Department (IMPD) arrived to assist DCS, at which time

       Mother “stumbl[ed]” from the back of the house. (Appellant’s App. Vol. II, p.

       74). Mother was belligerent and erratic, her words were slurred, and she was

       rambling, leading DCS to believe that she was under the influence of some type

       of substance. Mother indicated that she was grieving the loss of her murdered


       Court of Appeals of Indiana | Opinion 49A02-1607-JC-1611 | January 12, 2017   Page 8 of 19
       son and that she had just returned from identifying A.W.’s body at the

       coroner’s office. DCS informed Mother that there was no indication that A.W.

       had been murdered and that he was not at the coroner’s office. When asked

       again whether she actually went to the coroner’s office, Mother had no idea

       what the case manager was talking about, and she ordered DCS and IMPD to

       leave her property. DCS indicated that it needed to check on the Children, but

       Mother stated that she had given the Children away a month prior. Mother

       provided DCS with a phone number of the person who was supposedly caring

       for the Children. When DCS called that individual, she denied that the

       Children were in her care, instead stating that the Children were still living with

       Mother.


[15]   On October 8, 2015, DCS filed a petition alleging the Children to be CHINS.

       In particular, DCS asserted that Mother “failed to provide the [C]hildren with a

       safe, stable, and appropriate living environment free from substance abuse.”

       (Appellant’s App. Vol. II, p. 70). DCS cited its “extensive history” with

       Mother and noted further concerns that Mother was refusing DCS access to the

       Children and that A.W.’s whereabouts were unknown. The same day, the trial

       court held an initial and detention hearing and ordered the Children’s removal

       from Mother’s home. The trial court stipulated that Mother could have

       supervised visitation with the Children. The trial court also appointed Child

       Advocates, Inc. to act as the Children’s guardian ad litem (GAL). Immediately

       following the trial court’s ruling, DCS, with the assistance of IMPD, removed

       S.G., L.G., and D.G. from Mother’s home. At the time, DCS did not notice


       Court of Appeals of Indiana | Opinion 49A02-1607-JC-1611 | January 12, 2017   Page 9 of 19
       any apparent bruising or other indications of physical abuse to the three

       youngest children. DCS placed S.G. with his paternal grandmother, whereas

       L.G. and D.G. were placed together in a therapeutic foster home. A few days

       later, DCS located A.W. Although A.W. was initially placed with his father,

       A.W. Sr., A.W. absconded on multiple occasions and, as such, was

       subsequently placed in a foster home.


[16]   At a pre-trial hearing/continued initial hearing on October 15, 2015, DCS

       indicated that it would be pursuing an exception to the statute that requires

       reasonable efforts to reunify a parent with his or her children. Based on the fact

       that it was seeking an order for no reasonable efforts, DCS requested that

       Mother not be given visits with the Children. Mother objected and requested

       supervised parenting time. Although the trial court ordered visitation among

       the siblings, it determined that Mother should not have any visits. On

       December 9, 2015, DCS and the GAL filed a Joint Motion for Hearing on

       Reasonable Efforts Exception and requested that the trial court “enter an

       [o]rder pursuant to [Indiana Code section] 31-34-21-5.6 finding that reasonable

       efforts to reunify the [C]hildren with [Mother] . . . are not required.”

       (Appellant’s App. Vol. II, p. 155).


[17]   On December 23, 2015, Mother filed a motion seeking visitation with the

       Children, and on January 12, 2016, she filed an objection to the joint petition

       by DCS and the GAL for the trial court to order no reasonable efforts. On

       January 20, 2016, the trial court held a hearing on the matter of Mother’s

       requested visitation. On February 11, 2016, the trial court determined that “it is

       Court of Appeals of Indiana | Opinion 49A02-1607-JC-1611 | January 12, 2017   Page 10 of 19
       not in the best interest of the [C]hildren that Mother have supervised parenting

       time and the [c]ourt does not believe that Mother will be in a position to

       regularly exercise this parenting time since she is on bed rest [due to her

       pregnancy].” (Appellant’s App. Vol. III, p. 170).


[18]   On February 11, 2016, Mother gave birth to I.K. Soon thereafter, DCS

       received a report concerning I.K.’s welfare and went immediately to the

       hospital to investigate. At that time, Mother admitted to DCS that she had

       relapsed and used cocaine. Accordingly, DCS removed I.K. from Mother’s

       custody and initiated separate CHINS proceedings pertaining solely to I.K.


[19]   On March 15, March 16, March 18, and March 21, 2016, the trial court

       conducted a fact-finding hearing and a hearing on DCS’s petition regarding

       reasonable efforts with respect to the Children. On June 20, 2016, the trial

       court issued an Order, adjudicating the Children as CHINS and granting DCS’

       request that reasonable efforts are not required to reunify Mother with the

       Children. On July 14, 2016, the trial court conducted a dispositional hearing

       and filed its Dispositional Order on July 19, 2016. Pursuant to its

       determination that no reasonable efforts for reunification are required, the trial

       court did not order Mother to participate in any services.


[20]   Mother now appeals. Additional facts will be provided as necessary.


                                    DISCUSSION AND DECISION

[21]   Mother challenges the trial court’s order that DCS need not undertake

       reasonable efforts to reunify her with the Children. In general, once a child has

       Court of Appeals of Indiana | Opinion 49A02-1607-JC-1611 | January 12, 2017   Page 11 of 19
       been declared a CHINS, DCS is legally required to “make reasonable efforts to

       preserve and reunify families . . . to make it possible for the child to return

       safely to the child’s home as soon as possible.” Ind. Code § 31-34-21-5.5(b)(2).

       However, such reasonable efforts at reunification “are not required if the court

       finds . . . [that] [t]he parental rights of a parent with respect to a biological or

       adoptive sibling of a child who is a [CHINS] have been involuntarily

       terminated by a court.” I.C. § 31-34-21-5.6(b)(4) (No Reasonable Efforts

       Statute). 6 In the trial court’s Order adjudicating the Children to be CHINS, it

       found that reasonable efforts are not required based on the fact that Mother’s

       parental rights to M.G. and A.G. were previously terminated. Mother now

       contends that “[t]his [N]o [R]easonable [E]fforts [S]tatute is unconstitutional as

       applied to [her] and is also void for vagueness.” (Appellant’s Br. p. 12) (internal

       quotation marks omitted). In the alternative, even if we find that the No

       Reasonable Efforts Statute is constitutional, Mother asserts that the trial court

       abused its discretion by applying it in this case. 7


[22]   Whether a statute is constitutional on its face is a question of law, which our

       court reviews de novo. G.B., 754 N.E.2d at 1031. Statutes are “clothed in a




       6
         The No Reasonable Efforts Statute does not relieve DCS of satisfying the remaining statutory procedures
       set forth for CHINS and termination of parental rights cases. G.B. v. Dearborn County Div. of Family &
       Children, 754 N.E.2d 1027, 1032-33 (Ind. Ct. App. 2001), trans. denied. Accordingly, even if DCS is not
       required to offer Mother services designed to reunify her with the Children, Mother’s parental rights will not
       be terminated unless DCS can prove the elements set forth in Indiana Code section 31-35-2-4(b)(2). Id. at
       1033.
       7
           Mother does not dispute that the CHINS adjudications were based on sufficient evidence.


       Court of Appeals of Indiana | Opinion 49A02-1607-JC-1611 | January 12, 2017                      Page 12 of 19
       presumption of constitutionality.” Id. Thus, an individual challenging the

       constitutionality of a statute bears the burden of rebutting this presumption. Id.

       “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.” Id. (internal citation omitted).


                          I. Due Process When Fundamental Rights Are at Stake

[23]   Mother claims that the No Reasonable Efforts Statute “violates [her]

       substantive due process rights under the Indiana and United States

       Constitutions because it infringes upon her fundamental right to family

       integrity.” (Appellant’s Br. p. 13). Article 1, Section 12 of the Indiana

       Constitution provides that “every person, for injury done to him in his person,

       property, or reputation, shall have remedy by due course of law.” Similarly,

       Section 1 of the Fourteenth Amendment to the United States Constitution

       stipulates that no State shall “deprive any person of life, liberty, or property,

       without due process of law.” The analysis for federal and state substantive due

       process claims is identical. G.B., 754 N.E.2d at 1031. In order to succeed on

       her claim, Mother “must show either that the [No Reasonable Efforts Statute]

       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.


[24]   Our courts have long recognized that parents have a fundamental right to

       family integrity, and “the right to raise one’s children is essential, basic, more

       precious than property rights, and within the protection of the Fourteenth

       Court of Appeals of Indiana | Opinion 49A02-1607-JC-1611 | January 12, 2017   Page 13 of 19
       Amendment to the United States Constitution.” Id. As a result, “we must

       strictly construe” the No Reasonable Efforts Statute. Id. Under this standard,

       the Reasonable Efforts Statute “must serve a compelling state interest and be

       narrowly tailored to serve that interest.” Id. at 1032.


[25]   Our court has previously analyzed the No Reasonable Efforts Statute and

       concluded that “it does not violate substantive due process under the Indiana

       and United States Constitutions.” Id. Although a parent does have a

       fundamental right to rear her child without undue governmental interference,

       the State also has a compelling interest in protecting that child’s welfare. Id. In

       fact, it is well established that “[w]hen parents neglect, abuse, or abandon their

       children, the state has the authority under its parens patriae power to intervene.”

       Id. (Italics added). The G.B. court determined that the No Reasonable Efforts

       Statute serves the State’s compelling interest of protecting children from the

       abuse and neglect of their parents. Id. As to whether the No Reasonable

       Efforts Statute is narrowly tailored to meet the compelling interest it is intended

       to serve, the G.B. court found that it “is not more intrusive than necessary to

       protect the welfare of children” because it “include[s] 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.” Id. The G.B. court reasoned

       that “[e]xperience has shown that with certain parents . . . the risk of recidivism

       is a very real concern. Therefore, when another child of that same parent is

       adjudged a dependent child, it is not unreasonable to assume that reunification




       Court of Appeals of Indiana | Opinion 49A02-1607-JC-1611 | January 12, 2017   Page 14 of 19
       efforts will be unsuccessful.” Id. (alterations in original) (quoting In re Baby Boy

       H., 73 Cal. Rptr. 2d 793, 799 (Cal. Ct. App. 1998)).


[26]   Mother insists that the reasoning of G.B. does not apply in this case because,

       “[a]lthough Mother had her parental rights to two of her children terminated, it

       is not reasonable to assume that reunification efforts will be unsuccessful with

       these [C]hildren” because her “history with DCS shows that reunification

       efforts for her are successful.” (Appellant’s Br. p. 14). Mother further contends

       that the No Reasonable Efforts Statute

               does not just include parents who have failed to reunify with a
               child in the past. In Mother’s case, it captures a parent who has
               had several successful reunifications. These circumstances do
               not support the justification for the statute allowing no
               reasonable efforts for reunification. As to Mother, this statute
               does not serve the state’s compelling interest in protecting the
               [C]hildren because Mother has shown she can successfully
               reunify with her children.


       (Appellant’s Br. p. 14). In other words, even though our court has previously

       held that the No Reasonable Efforts Statute is not unconstitutional on its face,

       Mother asserts that it should be found unconstitutional as applied to the facts of

       her case. We find no merit in Mother’s argument.


[27]   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




       Court of Appeals of Indiana | Opinion 49A02-1607-JC-1611 | January 12, 2017   Page 15 of 19
of her parental rights to two children. As the trial court aptly found in its Order

adjudicating the Children to be CHINS,

        [a]ll of the services which could be offered to [M]other to assist in
        remedying her behavior and issues have been offered many times
        before. . . . Mother has not demonstrated an ability to benefit
        from the services or modify her behavior and do what is in the
        best interest of her children. Actually, the children continue to
        suffer harm while under the care, custody and supervision of
        their Mother.


(Appellant’s App. Vol. IV, p. 79). We agree with Mother that she has

previously demonstrated an ability to reunify with her children; yet, she testified

that all she had to do to comply with her mandatory case plan was to “show up,

be on time, don’t disrupt the class or get put out of class.” (Tr. Vol. III, p. 22).

Thus, Mother admittedly did not put any effort into making a meaningful

change in her life for the sake of her children, and she did not receive the

benefits of the services that DCS repeatedly provided to her. By doing the bare

minimum, Mother was able to temporarily reunite with her children (with the

exception of M.G. and A.G.) following each removal, but 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. The State has a

compelling interest in protecting children against such recurring physical and

emotional turmoil. As such, we conclude that the No Reasonable Efforts

Statute is not unconstitutional as applied to Mother. Moreover, for these same

reasons, we also find no merit in Mother’s claim that the trial court abused its

discretion by granting DCS’ request to forego reasonable efforts.

Court of Appeals of Indiana | Opinion 49A02-1607-JC-1611 | January 12, 2017   Page 16 of 19
                                              II. Void for Vagueness

[28]   Mother also claims that the No Reasonable Efforts Statute is unconstitutionally

       vague. It is well established that


               [a] criminal statute is unconstitutionally vague if the conduct
               sought to be prohibited is not clearly defined. Such a due process
               failing may be reflected in one of two distinct statutory flaws:
               “(1) for failing to provide notice enabling ordinary people to
               understand the conduct that it prohibits, and (2) for the
               possibility that it authorizes or encourages arbitrary or
               discriminatory enforcement.”


       Smith v. State, 8 N.E.3d 668, 676 (Ind. 2014) (emphasis added) (internal citation

       omitted) (quoting Brown v. State, 868 N.E.2d 464, 467 (Ind. 2007)).


               With respect to the first category of vagueness, a statute will not
               be found unconstitutionally vague if individuals of ordinary
               intelligence would comprehend it adequately to inform them of
               the proscribed conduct. As to the second category, a statute is
               problematic when it “vests virtually complete discretion in the
               hands of the police to determine whether the suspect has satisfied
               the statute.”


       W.C.B. v. State, 855 N.E.2d 1057, 1062 (Ind. Ct. App. 2006) (internal citation

       omitted) (quoting Kolender v. Lawson, 461 U.S. 352, 358 (1983)), trans. denied.

       Furthermore, “a statute is void for vagueness only if it is vague as applied to the

       precise circumstances of the instant case. Id.


[29]   Here, Mother contends that the No Reasonable Efforts Statute fails the second

       prong as it authorizes arbitrary enforcement. Specifically, she argues that

       “DCS has discretion to seek a no reasonable efforts order if the statutory
       Court of Appeals of Indiana | Opinion 49A02-1607-JC-1611 | January 12, 2017   Page 17 of 19
       requirements are met. DCS can arbitrarily choose to seek no efforts or to offer

       services.” (Appellant’s Br. p. 15). In turn, the State correctly points out that

       “case law indicates that the ‘void for vagueness’ doctrine is ‘applicable only to

       penal statutes, not to non-penal civil statutes.’” (State’s Br. p. 24) (citing

       Brunton v. Porter Mem’l Hosp. Ambulance Serv., 647 N.E.2d 636, 640 (Ind. Ct.

       App. 1994)). In fact, Mother cites solely to a criminal case in support of her

       contention that the No Reasonable Efforts Statute is unconstitutionally vague.


[30]   Notwithstanding the applicability of the void for vagueness doctrine only to

       penal statutes, we nevertheless agree with the State that the No Reasonable

       Efforts Statute does not authorize arbitrary enforcement. Rather, certain

       statutory criteria must be satisfied (i.e., the prior termination of parental rights

       to the sibling of a current CHINS) before DCS may, in its discretion, determine

       that it will not allocate the State’s resources in order to reunite a parent with her

       children. Such discretion is not tantamount to arbitrary enforcement. See, e.g.,

       W.C.B., 855 N.E.2d at 1062 (noting that, in a criminal setting, the mere fact that

       the State may elect not to prosecute certain statutory violators did not render

       Indiana Code section 35-42-4-3 unconstitutionally vague because decisions to

       prosecute “may be based on factors other than the satisfaction of statutory

       elements, but the mere fact that those factors are not laid out in the statute does

       not render the statute unconstitutionally vague”).




       Court of Appeals of Indiana | Opinion 49A02-1607-JC-1611 | January 12, 2017   Page 18 of 19
                                                CONCLUSION

[31]   Based on the foregoing, we conclude that the No Reasonable Efforts Statute is

       not unconstitutional as applied to Mother, and the trial court did not abuse its

       discretion by granting DCS’ request to forego reasonable efforts.


[32]   Affirmed.


[33]   Crone, J. and Altice, J. concur




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