Termination: D H v. A C

                                                                                  FILED
                                                                            Dec 21 2023, 9:09 am

                                                                                  CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




APPELLANT, PRO SE                                          ATTORNEY FOR APPELLEES
D.H.                                                       Timothy R. Stoesz
New Castle, Indiana                                        Stoesz & Stoesz
                                                           Noblesville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

D.H.,                                                      December 21, 2023
Appellant-Respondent,                                      Court of Appeals Case No.
                                                           23A-JT-1369
        v.                                                 Appeal from the
                                                           Hamilton Superior Court
A.C., C.C., and S.R.,                                      The Honorable
Appellees-Petitioners                                      Andrew R. Bloch, Magistrate
                                                           Trial Court Cause No.
                                                           29D03-2212-JT-1804



                                 Opinion by Judge Vaidik
                             Judges Bradford and Brown concur.




Court of Appeals of Indiana | Opinion 23A-JT-1369 | December 21, 2023                           Page 1 of 9
      Vaidik, Judge.



      Case Summary
[1]   D.H. impregnated his girlfriend’s fourteen-year-old daughter, S.R., who gave

      birth to a daughter of her own. D.H. pled guilty to sexual misconduct with a

      minor and received a lengthy prison sentence. S.R. then petitioned to terminate

      D.H.’s parental rights under Indiana Code section 31-35-3.5-3, which provides

      that if a child was conceived as a result of “an act of rape,” the victim-parent

      can seek to terminate the rights of the perpetrator-parent. The trial court granted

      the petition, interpreting the phrase “act of rape” broadly to extend beyond the

      rape statute and include any sexual intercourse between an adult and a person

      under sixteen.


[2]   What the parties and the trial court didn’t realize is that a different statute in

      another part of Title 31 defines “act of rape” as (1) “an act described in” the

      rape statute or (2) an act of child molesting (where the victim is under fourteen)

      involving deadly force, a deadly weapon, serious injury, or drugging. See 

.9. Because the trial court didn’t consider whether D.H.

      committed an act described in the rape statute, we must reverse the termination

      order. But because the case wasn’t litigated or decided under the proper

      statutory framework, we remand the matter to the trial court for a new

      termination hearing focused on the controlling definition of “act of rape.”




      Court of Appeals of Indiana | Opinion 23A-JT-1369 | December 21, 2023        Page 2 of 9
      Facts and Procedural History
      I. Statutory Framework
[3]   We begin by setting forth the relevant statutes. The termination statute, Indiana

      Code section 31-35-3.5-3, states, in relevant part:


              [I]f a child was conceived as a result of an act of rape, the parent
              who is the victim of the act of rape may file a verified petition
              with the juvenile or probate court to terminate the parent-child
              relationship between the child and the alleged perpetrator of the
              act of rape.


      The statute doesn’t require a rape conviction, or even a rape charge, only “an

      act of rape.” The statute doesn’t define “act of rape,” but another statute does.

      Indiana Code section 31-9-2-0.9 provides:


              “Act of rape”, for purposes of IC 31-35-3.5, means an act
              described in:


                       (1) IC 35-42-4-1; or


                       (2) IC 35-42-4-3(a) that:


                                (A) is committed by using or threatening the use of
                                deadly force or while armed with a deadly weapon;


                                (B) results in serious bodily injury; or


                                (C) is facilitated by furnishing the victim, without
                                the victim’s knowledge, with a drug (as defined in
                                IC 16-42-19-2(1)) or a controlled substance (as

      Court of Appeals of Indiana | Opinion 23A-JT-1369 | December 21, 2023            Page 3 of 9
                                defined in IC 35-48-1-9) or knowing that the victim
                                was furnished with the drug or controlled substance
                                without the victim’s knowledge.


      Section 35-42-4-3 is the child-molesting statute, which applies only when the

      victim is under fourteen. The first statute listed—Indiana Code section 35-42-4-

      1—is the rape statute.


[4]   The rape statute provides, in relevant part:


              [A] person who knowingly or intentionally has sexual intercourse
              with another person or knowingly or intentionally causes another
              person to perform or submit to other sexual conduct (as defined
              in IC 35-31.5-2-221.5) when:


                       (1) the other person is compelled by force or imminent
                       threat of force;


                       (2) the other person is unaware that the sexual intercourse
                       or other sexual conduct (as defined in IC 35-31.5-2-221.5)
                       is occurring;


                       (3) the other person is so mentally disabled or deficient
                       that consent to sexual intercourse or other sexual conduct
                       (as defined in IC 35-31.5-2-221.5) cannot be given; or


                       (4) the person disregarded the other person’s attempts to
                       physically, verbally, or by other visible conduct refuse the
                       person’s acts;


              commits rape, a Level 3 felony.



      Court of Appeals of Indiana | Opinion 23A-JT-1369 | December 21, 2023           Page 4 of 9
      I.C. § 35-42-4-1(a).


[5]   One other statute is important to our discussion—the sexual-misconduct-with-a-

      minor statute, under which D.H. was charged and convicted. Indiana Code

      section 35-42-4-9 provides, in relevant part:


              (a) A person at least eighteen (18) years of age who knowingly or
              intentionally performs or submits to sexual intercourse or other
              sexual conduct (as defined in IC 35-31.5-2-221.5) with a child
              less than sixteen (16) years of age, commits sexual misconduct
              with a minor, a Level 5 felony. However, the offense is:


                       (1) a Level 4 felony if it is committed by a person at least
                       twenty-one (21) years of age; and


                       (2) a Level 1 felony if it is committed by using or
                       threatening the use of deadly force, if it is committed while
                       armed with a deadly weapon, if it results in serious bodily
                       injury, or if the commission of the offense is facilitated by
                       furnishing the victim, without the victim’s knowledge,
                       with a drug (as defined in IC 16-42-19-2(1)) or a controlled
                       substance (as defined in IC 35-48-1-9) or knowing that the
                       victim was furnished with the drug or controlled substance
                       without the victim’s knowledge.


      The definition of “act of rape” makes no mention of this statute. Of course, an

      act described in subsection (a)(2) (deadly force, deadly weapon, etc.) would

      almost certainly satisfy the rape statute and be an act of rape under the

      termination statute. But an act charged under subsection (a)(1) might also

      qualify. Some sex acts charged, in the prosecutor’s discretion, as sexual

      misconduct with a minor might also be “described” in the rape statute and

      Court of Appeals of Indiana | Opinion 23A-JT-1369 | December 21, 2023            Page 5 of 9
      therefore implicate the termination statute. For example, sexual intercourse

      with a person under sixteen, who attempts to physically, verbally, or by other

      visible conduct refuse, would satisfy the rape statute and would constitute an

      act of rape under the termination statute even if the prosecutor chose to charge

      only sexual misconduct with a minor.


[6]   With the statutory framework in place, we turn to this case.


      II. Factual Background
[7]   D.H., a man in his mid-twenties, had sex with his girlfriend’s two teenage

      daughters, including S.R., who was fourteen. S.R. became pregnant and gave

      birth to a daughter. D.H. was charged with two counts of sexual misconduct

      with a minor, pled guilty, and was sentenced to fifteen years in prison.


[8]   Though incarcerated, D.H. filed a pro se paternity action seeking to establish

      custody, parenting time, and child support. Understandably, S.R. didn’t want

      D.H. involved in her daughter’s life, so she and the child’s court-appointed

      guardians initiated a separate action seeking to terminate D.H.’s parental rights

      under Section 31-35-3.5-3. After a hearing, the trial court granted the petition

      and terminated D.H.’s rights. The court found it “clear” that “an act of rape

      occurred” because “[i]t is well established that a minor cannot consent to sexual

      intercourse with an adult.” Appellant’s App. Vol. II pp. 3-4. At no point in the

      petition, the hearing on the petition, or the trial court’s order was there any

      mention of Indiana Code section 31-9-2-0.9, the statute that expressly limits the

      scope of the phrase “act of rape.”

      Court of Appeals of Indiana | Opinion 23A-JT-1369 | December 21, 2023      Page 6 of 9
[9]    D.H. now appeals.



       Discussion and Decision
[10]   As they did in the trial court, the parties debate the meaning of “act of rape”

       without mentioning the statute that defines the phrase. D.H. contends that if he

       had committed an act of rape, the State would have charged him with rape

       under Indiana Code section 35-42-4-1 rather than charging him with sexual

       misconduct with a minor under Indiana Code section 35-42-4-9. S.R. and the

       guardians respond that the phrase “act of rape” goes beyond the rape statute.

       They argue that sexual intercourse with a person under sixteen fits “the

       common meaning of rape,” Appellee’s Br. p. 8, because “[i]t has long been

       Indiana law that an individual under the age of sixteen (16) cannot give

       consent,” id. at 6 (citing Williams v. State, 

 (Ind. Ct. App.

       1978)).


[11]   If we were just interpreting the language of the termination statute (Section 31-

       35-3.5-3), we would probably agree with the appellees and affirm the

       termination order. The statute says “an act of rape” but doesn’t require a rape

       conviction and doesn’t incorporate or otherwise reference the rape statute, such

       as by stating “an act of rape (as defined in IC 35-42-4-1).” As such, we would be

       inclined to construe the phrase broadly, as the trial court did, to include an

       adult’s sexual intercourse with a person who is under sixteen and therefore

       incapable of meaningful consent.



       Court of Appeals of Indiana | Opinion 23A-JT-1369 | December 21, 2023      Page 7 of 9
[12]   But the termination statute doesn’t stand alone. Indiana Code section 31-9-2-0.9

       limits the phrase “act of rape” to the acts described in the rape statute (and

       some acts described in the child-molesting statute, which is inapplicable here

       because S.R. wasn’t under fourteen). Under the rape statute, sexual intercourse

       is rape only when the victim (1) is compelled by force or the threat of force, (2)

       is unaware that the intercourse is occurring, (3) is so mentally disabled or

       deficient that consent cannot be given, or (4) attempts to physically, verbally, or

       by other visible conduct refuse the intercourse. Because the trial court found—

       reasonably, but incorrectly—that any sexual intercourse between an adult and a

       person under sixteen is an act of rape under the termination statute, it didn’t

       address whether D.H.’s intercourse with S.R. involved any of the circumstances

       listed in the rape statute. Without such a finding, we must reverse the

       termination order.


[13]   Under the circumstances, however, the best course of action is to hold a new

       termination hearing. The first time around, no one in the courtroom was aware

       of the statutory definition of “act of rape,” so the case was litigated and decided

       based on an incomplete and mistaken understanding of the relevant statutes.

       Therefore, we remand this matter to the trial court for a new termination

       hearing focused on the controlling definition.


[14]   We also ask the legislature to revisit this statutory scheme. Sexual intercourse

       between an adult and a child under sixteen is almost always a serious felony—

       either child molesting or sexual misconduct with a minor (there are limited

       exceptions identified in the statutes). See I.C. §§ 35-42-4-3(a), 35-42-4-9(a). But

       Court of Appeals of Indiana | Opinion 23A-JT-1369 | December 21, 2023       Page 8 of 9
       not all victims of these crimes who become pregnant can seek relief under the

       termination statute. As it exists now, an “act of rape” is limited to only those

       acts described in (1) the rape statute or (2) a section of the child-molesting

       statute describing the most aggravated acts of molestation (e.g., sexual

       intercourse where the under-fourteen victim is threatened with deadly force,

       seriously injured, or drugged).


[15]   Significantly, this means that teenage victims of sexual misconduct with a

       minor, and many victims of child molesting, cannot seek termination under

       Section 31-35-3.5-3 unless they can prove that the felony sex crimes committed

       against them are also covered by the rape statute. This allows for some

       troubling outcomes. For example, a fourteen-year-old girl who is physically

       forced to have sex with a forty-year-old man can seek termination, but a

       fourteen-year-old girl who silently endures the sex in paralyzing fear cannot.

       We encourage the legislature to consider expanding the statutes to include all

       acts of child molesting and sexual misconduct with a minor.


[16]   Reversed and remanded.


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




       Court of Appeals of Indiana | Opinion 23A-JT-1369 | December 21, 2023       Page 9 of 9