In the Matter of the Involuntary Termination of the Parent-Child Relationship of D.H., K.H., and E.H. (Minor Children) and L.H. (Mother) v. The Indiana Department of Child Services , 122 N.E.3d 832 ( 2019 )

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