COA upholds constitutionality of CHINS reunification exception

A statute providing exceptions to the requirement that the Department of Child Services make reasonable efforts to preserve and reunify families involved in CHINS cases survived a constitutional challenge Thursday.

A panel of the Indiana Court of Appeals unanimously affirmed a Marion Superior judge’s determination that DCS need not undertake reasonable efforts to reunite four minor children with their mother in In the Matter of: S.G., L.G., D.G., & A.W. and S.S. (Mother) v. Indiana Department of Child Services, and Child Advocates, Inc., 49A02-1607-JC-1611.

Mother S.S. challenged the ruling as an abuse of discretion and also the constitutionality of I.C. 31-34-21-5.6. That statute lays out circumstances when the state is not required to make reasonable efforts to preserve and reunify families involved in child in need of services proceedings.

S.S. is the mother of 10 children by at least six different fathers, none of whom are parties to the appeal. The children range in age from less than 1 to 21, and mother has a history of multiple DCS interventions dating to 1999 for allegations ranging from substance abuse to physical abuse and neglect. She left one of the children in the hospital at birth in 2012, and that child and several born later were born with cocaine in their systems.

DCS in October 2015 began the CHINS proceedings at issue after Mother told neighbors a 12-year-old child had died when the child had actually run away after mother allegedly “busted his head with a stick.” She was also accused of battering other younger children. The children were removed from the home and DCS indicated it would pursue an exception to the statute requiring reasonable efforts to reunify a parent with his or her children. The trial court denied mother visitation and after hearings granted DCS’ request that reasonable efforts toward reunification were not in the children’s best interests.

The COA affirmed the trial court in all respects. “Mother was able to temporarily reunite with her children (with the exception of M.G. and A.G.) following each removal, but her failure to take advantage of multiple opportunities to make permanent changes in her life has resulted in a perpetual cycle of instability for all of her children,” Judge Patricia Riley wrote for the panel. “The State has a compelling interest in protecting children against such recurring physical and emotional turmoil. As such, we conclude that the No Reasonable Efforts Statute is not unconstitutional as applied to Mother.  Moreover, for these same reasons, we also find no merit in Mother’s claim that the trial court abused its discretion by granting DCS’ request to forego reasonable efforts.”

The court also rejected the argument that the statute was unconstitutionally vague. “Notwithstanding the applicability of the void for vagueness doctrine only to penal statutes, we nevertheless agree with the State that the No Reasonable Efforts Statute does not authorize arbitrary enforcement. Rather, certain statutory criteria must be satisfied (i.e., the prior termination of parental rights to the sibling of a current CHINS) before DCS may, in its discretion, determine that it will not allocate the State’s resources in order to reunite a parent with her children. Such discretion is not tantamount to arbitrary enforcement.”