GB v. DEARBORN CTY. DIV. OF FAM. & CHILD'N

• Citation: 754 N.E.2d 1027
• Decision Date: 12 September 2001
• Docket Number: No. 15A05-0101-JV-34.,15A05-0101-JV-34.
• Parties: In the Matter of G.B., A Child Alleged to be in Need of Services, Parents, Gary Berry and Theresa Yardley, Appellants-Respondents, v. DEARBORN COUNTY DIVISION OF FAMILY AND CHILDREN, Appellee-Plaintiff.
• Court: Indiana Appellate Court

754 N.E.2d 1027

In the Matter of G.B., A Child Alleged to be in Need of Services, Parents, Gary Berry and Theresa Yardley, Appellants-Respondents, v. DEARBORN COUNTY DIVISION OF FAMILY AND CHILDREN, Appellee-Plaintiff.

No. 15A05-0101-JV-34.

Court of Appeals of Indiana.

September 12, 2001.

Leanna Weissmann, Lawrenceburg, IN, Attorney for Appellant.

Barbara A. Wyly, Lawrenceburg, IN, Attorney for Appellee.

OPINION

BARNES, Judge.

Case Summary

Gary Berry and Theresa Yardley appeal the trial court's order finding that, pursuant to Indiana Code Section 31-34-215.6, reasonable efforts to reunify their son G.B. with them or preserve their family were not required.

We affirm.

Issue

The sole issue presented for our review is whether Section 31-34-21-5.6 violates substantive due process under both the United States and Indiana Constitutions.

Facts

G.B. was born on August 25, 2000. Because of Yardley's inconsistent prenatal care, and in compliance with the Indiana Meconium Screening Program, Dearborn County Hospital nurse Janet Moore collected G.B.'s meconium stool¹ for analysis. The analysis revealed the presence of cannabinoids in the stool. As a result, G.B. was removed from his parents and made a ward of the Dearborn County Office of Family and Children. (OFC). Following a detention hearing on September 12, 2000, the trial court authorized OFC to file a Child in Need of Services (CHINS) petition. OFC filed the petition on September 13, 2000, and the trial court held a fact finding hearing on October 3 and 18, 2000. One month later, on November 20, 2000, the trial court held a dispositional hearing wherein OFC asked the court to order G.B. to remain a ward of the court and to make a finding that reasonable efforts to reunify G.B. with his parents or to preserve his family were not required. At the conclusion of the hearing, the court stated that it was "going to continue this matter for further disposition until December 4, 2000." Transcript of November Hearing, p. 13.

That same day, the court issued an order on dispositional hearing ordering G.B. to remain a ward of OFC with placement and visitation at OFC's discretion. The court's order further provided that "reunification /or parent participation would be continued until December 4, 2000." Appellee's Appendix, p. 3. The court held another hearing on December 4, 2000. During the hearing, OFC presented evidence that the court had terminated the parents' parent-child relationship with three other children in 1998. On December 8, 2000, the court issued an order providing in pertinent part as follows:

The CHINS petition comes on for a Dispositional Hearing . . . The Court, has reviewed the predispositional report and has heard statements and evidence presented to the Court regarding the disposition of the case. The Court now finds that reasonable efforts to reunify this child with the child's parent . . . or preserve this child's family are not required.. . .

Appellant's Appendix, p. 9. It is from this order that the parents appeal.

Analysis

As a preliminary matter, OFC argues that the court's December 8 order finding that reasonable efforts to reunify G.B. with his parents were not required is not an appealable order. Dispositional orders in CHINS proceedings are appealable final judgments. Matter of M.R., 452 N.E.2d 1085, 1089 (Ind.Ct.App.1983). Here, OFC contends that the trial court's November 20 order was the dispositional order that should have been appealed. OFC characterizes the court's December 8 order as an unappealable "reasonable efforts ruling." Appellee's Brief, p. 6. We disagree with OFC's characterization of the trial court's orders for the following reasons.

Our review of the record reveals that on November 20 the trial court held a dispositional hearing wherein OFC asked the court to order G.B. to remain a ward of the court and to make a finding that reasonable efforts to reunify G.B. with his parents or to preserve his family were not required. At the conclusion of the hearing, the court stated that it was "going to continue this matter for further disposition until December 4, 2000." Transcript of November Hearing, p. 13. Further, the court's order issued that same day ordered G.B. to remain a ward of the court and provided that "reunification/or parent participation would be continued until December 4, 2000." Appellee's Appendix, p. 3.

Following the December 4 hearing, the court issued an order which provides in pertinent part as follows: "The CHINS petition comes on for a Dispositional Hearing.. . . The Court, has reviewed the predispositional report and has heard statements and evidence presented to the Court regarding the disposition of the case. The Court now finds that reasonable efforts to reunify this child with the child's parent. . . or preserve this child's family are not required." Appellant's Appendix, p. 8.

Based upon the trial court's comments and orders, we conclude that the December 4 hearing was a continuation of the November dispositional hearing. Thus, the court's December 8 order, issued after the December 4 hearing, was an appealable dispositional order. See M.R., 452 N.E.2d at 1089

.

In 1980, Congress enacted the Adoption Assistance and Child Welfare Act. See 42 U.S.C. § § 620-628(b), 670-679(b). The Act authorizes federal subsidies to the States for the operation of their child welfare programs, but conditions that funding on certain requirements. Phelps v. Sybinsky, 736 N.E.2d 809, 813 (Ind.Ct.App.2000), trans. denied. The case before us arises from a 1997 amendment to the Act that provides in pertinent part as follows:

In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which. . .

(15) provides that . . .

(D) reasonable efforts of the type described in subparagraph (B) shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction has determined that . . .

(iii) the parental rights of the parent to a sibling have been terminated involuntarily.

42 U.S.C. § 671.²

In response to the amendment, the General Assembly enacted Public Law No. 35-1998, which is now codified at Indiana Code 31-34-21-5.6 and provides in pertinent part as follows:

(b) Reasonable efforts to reunify a child with the child's parent . . . or to preserve a child's family . . . are not required if the court finds . . .

(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) Ind.Code 31-35-2 (involuntary termination involving a delinquent child or a child in need of services).. . .

Berry and Yardley argue that this statute is unconstitutional because it "violates the Due Process Clauses of both the Indiana³ and United States⁴ Constitutions." Appellant's Brief, p. 5. Specifically, they posit that the statute "violates [their] substantive due process rights by infringing upon their fundamental right to family integrity." Appellant's Brief, p. 6.

Whether a statute is constitutional on its face is a question of law. State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind. 1997). When the issue presented on appeal is a pure question of law, we review the matter de novo. Id. Further, legislation under constitutional attack is clothed in a presumption of constitutionality. Matter of Tina T., 579 N.E.2d 48, 56 (Ind. 1991). The challenger has the burden to rebut this presumption. Id. All reasonable doubts must be resolved in favor of an act's constitutionality. Id. When a statute can be so construed to support its constitutionality, we must adopt such a construction. Id.

Federal and state substantive due process analysis is identical. N.B. v. Sybinski, 724 N.E.2d 1103, 1112 (Ind.Ct. App.2000), trans. denied. 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.

The United States Constitution recognizes a fundamental right to family integrity. Pence v. Pence, 667 N.E.2d 798, 800 (Ind.Ct.App.1996); Matter of Joseph, 416 N.E.2d 857, 859 (Ind.Ct.App.1981). "Indeed, the courts of this state have long and consistently held that the right to raise one's children is essential, basic, more precious than property rights, and within the protection of the Fourteenth Amendment to the United States Constitution." E.P. v. Marion Co. Office of Family and Children, 653 N.E.2d 1026, 1031 (Ind.Ct.App.1995).

Because Yardley and Berry have a fundamental right to family integrity, we must strictly construe the challenged statute. See Indiana Dep't of Envtl. Mgmt. v. Chemical Waste Mgmt., Inc., 643 N.E.2d 331, 337 (Ind.1994) (noting that laws that burden the exercise of fundamental rights "receive the strictest scrutiny"). Under the strict scrutiny standard, a statute must serve a compelling state interest and be narrowly tailored to serve that interest. Crafton v. Gibson, 752 N.E.2d 78, 91 (Ind.Ct.App., 2001).

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. Matter of E.M., 581 N.E.2d 948, 952 (Ind.Ct.App.1991), trans. denied. When parents neglect, abuse, or abandon their children, the state has the authority under its parens patriae power to intervene. Id. 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. As the California...