                                                                                  FILED
                                                                           Apr 10 2019, 7:29 am
OPINION ON REHEARING
                                                                                  CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                       Curtis T. Hill, Jr.
WIENEKE LAW OFFICE, LLC                                     Attorney General of Indiana
Brooklyn, Indiana                                           Robert J. Henke
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                            April 10, 2019
Termination of the Parent-Child                             Court of Appeals Case No.
Relationship of D.H., K.H., and                             18A-JT-1861
E.H. (Minor Children)                                       Appeal from the Adams Circuit
      and                                                   Court
                                                            The Honorable Chad E. Kukelhan,
L.H. (Mother),                                              Judge
Appellant-Respondent,                                       Trial Court Cause Nos.
                                                            01C01-1801-JT-6
        v.                                                  01C01-1801-JT-7
                                                            01C01-1801-JT-8
The Indiana Department of
Child Services,
Appellee-Petitioner.



Bailey, Judge.




Court of Appeals of Indiana | Opinion on Rehearing 18A-JT-1861 | April 10, 2019                     Page 1 of 3
[1]   Appellee-Petitioner, Indiana Department of Child Services (“DCS”), filed a

      petition for rehearing requesting that we reconsider our opinion issued on

      February 1, 2019. In that opinion, we reversed the termination of L.H.’s

      (“Mother”) parental rights because the pervasive and admitted procedural

      irregularities in her Child in Need of Services (“CHINS”) case violated her due

      process rights. L.H. v. Ind. Dep’t of Child Serv. (In re D.H.), No. 18A-JT-1861,

      2019 WL 406511 (Ind. Ct. App. February 1, 2019). In doing so, we

      erroneously stated that Indiana Code Section 31-35-2-4.5(d) required DCS to

      state in the termination petition whether there was a basis for filing a motion to

      dismiss the petition and, if there was such a basis, to file a motion to dismiss.

      Id. at *6, 8-9. We grant DCS’s petition for the limited purpose of correcting

      that error.


[2]   As DCS points out, Indiana Code Section 31-35-2-4.5(d) was amended in 2012

      to be permissive rather than mandatory; that is, when filing a petition to

      terminate parental rights, DCS is no longer required to, but rather permitted to,

      state whether there is a basis for filing a motion to dismiss the termination

      petition and, if there is such a basis, to file a motion to dismiss. See IN LEGIS

      48-2012 (2012), 2012 Ind. Legis. Serv. P.L. 48-2012 (S.E.A. 286) (WEST).

      However, the permissive nature of the statute does not change our conclusion

      that DCS’s significant, multiple, and admitted procedural errors throughout

      Mother’s case, including its failure to follow its own mandatory procedures for

      ensuring the provision of services, violated her due process rights. See, e.g.,

      K.M. v. Ind. Dep’t of Child Serv. (In re S.L.), 997 N.E.2d 1114, 1120 (Ind. Ct. App.


      Court of Appeals of Indiana | Opinion on Rehearing 18A-JT-1861 | April 10, 2019   Page 2 of 3
      2013) (noting “[a]ny procedural irregularities in a CHINS proceeding may be of

      such significance that they deprive a parent of procedural due process with

      respect to the termination of his or her parental rights”); A.S. v. Ind. Dep’t of

      Child Serv. (Matter of C.M.S.T.), 111 N.E.3d 207, 213 (Ind. Ct. App. 2018)

      (holding that “the chaotic and unprofessional handling” of a CHINS case

      violated the parents’ due process rights, requiring reversal of the termination

      order).


[3]   We therefore clarify that Indiana Code Section 31-35-2-4.5(d) permits, rather

      than requires, DCS to state in a termination petition whether there is a basis for

      filing a motion to dismiss the petition and, if there is such a basis, to file the

      motion to dismiss.


[4]   Our opinion is hereby affirmed in all other respects.


      Bradford, J., and Brown, J., concur.




      Court of Appeals of Indiana | Opinion on Rehearing 18A-JT-1861 | April 10, 2019   Page 3 of 3
