MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be
                                                                          May 06 2019, 10:32 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.
Logansport, Indiana                                      Attorney General of Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         May 6, 2019
of the Parent-Child Relationship                         Court of Appeals Case No.
of S.C.                                                  18A-JT-2998
K.W. (Mother),                                           Appeal from the Cass Circuit
                                                         Court
Appellant-Respondent,
                                                         The Honorable Stephen Kitts,
        v.                                               Judge
                                                         Trial Court Cause No.
The Indiana Department of                                09C01-1807-JT-11
Child Services,
Appellee-Petitioner.



Riley, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-2998 | May 6, 2019                           Page 1 of 5
                                     STATEMENT OF THE CASE
[1]   Appellant-Respondent, K.W. (Mother), appeals the termination of her parental

      rights to her minor child, S.C. (Child).


[2]   We affirm.


                                                           ISSUE
[3]   Mother raises one issue on appeal, which we restate as: Whether the “clear and

      convincing” evidence burden of proof standard in termination of parental rights

      cases violates the Indiana Constitution.


                          FACTS AND PROCEDURAL HISTORY
[4]   Mother and R.C. (Father) 1 are the parents of Child, born on October 3, 2013.

      In early April 2017, the Cass County Office of the Indiana Department of Child

      Services (DCS) removed the Child from the home she shared with her parents,

      following allegations of domestic violence between the parents committed in

      the presence of the Child, Mother’s positive drug screen for amphetamine,

      methamphetamine, marijuana, cocaine, heroin, morphine, and hydrocodone,

      and Father’s positive drug screen for amphetamine, methamphetamine, and

      marijuana.




      1
          Father does not appeal the trial court’s termination of his parental rights.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2998 | May 6, 2019        Page 2 of 5
[5]   On August 16, 2017, the trial court adjudicated Child to be a Child in Need of

      Services. On July 5, 2018, DCS filed a petition for the involuntary termination

      of parental rights. On November 14, 2018, following a fact-finding hearing, the

      trial court entered its Order to terminate the parent-child relationship.


[6]   Mother now appeals. Additional facts will be provided if necessary.


                                 DISCUSSION AND DECISION
[7]   Mother’s sole argument on appeal focuses on the perceived unconstitutionality

      of the burden of proof standard in Indiana. 2 Claiming that the termination of a

      parent’s rights to his or her child is among the most damaging injuries the State

      can inflict on a person’s reputation, Mother contends that Indiana should

      implement proof beyond a reasonable doubt as its standard, instead of the

      current clear and convincing burden of proof.


[8]   In approaching a consideration of the constitutionality of a statute, we must at

      all times exercise self-restraint. Sidle v. Majors, 341 N.E.2d 763, 766 (Ind. 1976),

      cert. denied, 429 U.S. 945 (1976). Otherwise, under the guise of limiting the

      legislature to its constitutional bounds, we are likely to exceed our own. Id.

      Therefore, when we review the constitutionality of an Indiana statute, the

      statute “stands before us clothed with the presumption of constitutionality until




      2
       Because Mother does not challenge the trial court’s finding of facts or conclusions thereon, the sufficiency
      of these stand as proven. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) (When factual findings are not
      directly challenged as clearly erroneous, they must be accepted as correct); A.D.S. v. Ind. Dep’t of Child Servs.,
      987 N.E.2d 1150, 1156 n.4 (legal conclusions not challenged are waived for review).

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2998 | May 6, 2019                           Page 3 of 5
       clearly overcome by a contrary showing.” Boehm v. Town of St. John, 675

       N.E.2d 318, 321 (Ind. 1996). We resolve all doubts in favor of the legislature

       and, if there are two reasonable interpretations of a statute, one which is

       constitutional and the other not, we will choose that path which permits

       upholding the statute. Id. We will not presume that the legislature violated the

       constitution unless such is required by the unambiguous language of the statute.

       Id.


[9]    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 this standard 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,

       and reputation, shall have remedy by due course of law.” She contends that the

       burden should be “beyond a reasonable doubt” based on a possible injury to

       reputation that could arise from a termination case as “the loss of reputation . . .

       to an honorable man is dearer than life itself.” (Appellant’s Br. p. 13) (citing

       Comment of Delegate Phineas Kent, in 2 Report of the Debates and

       Proceedings of the Convention for the Revision of the Constitution of the State

       of Indiana, 1373).


[10]   In Santosky v. Kramer, 455 U.S. 745, 769 (1982), the United States Supreme

       Court held that, in termination proceedings, a “clear and convincing” standard

       of proof “adequately conveys to the factfinder the level of subjective certainty

       about his factual conclusions necessary to satisfy due process.” The Court held

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2998 | May 6, 2019   Page 4 of 5
       that “determination of the precise burden equal to or greater than that standard

       is a matter of state law properly left to state legislatures and state courts.” Id. at

       769-70. In response to Santosky, Indiana adopted the clear and convincing

       standard as its burden of proof in termination proceedings. See Ellis v. Knox Cty.

       Dep’t of Pub. Welfare, 433 N.E.2d 847 (Ind. Ct. App. 1982). We have previously

       addressed the constitutionality of this burden of proof in favor of upholding the

       statute. See, e.g., Castro v. State Office of Family & Children, 842 N.E.2d 367, 377

       (Ind. Ct. App. 2006) (“Our General Assembly has adopted the clear and

       convincing standard for termination cases, the Indiana Supreme Court has

       consistently applied it, and the United States Supreme Court has held that such

       a standard satisfies the requirements of due process”). Accordingly, as our

       legislature was within its right to establish the burden of proof in termination

       cases to be the clear and convincing standard, we find that Mother’s argument

       fails.


                                             CONCLUSION
[11]   Based on the foregoing, we hold that the “clear and convincing” evidence

       burden of proof standard in termination of parental rights cases does not violate

       the Indiana Constitution.


[12]   Affirmed.


[13]   Bailey, J. and Pyle, J. concur




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