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

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