FOR PUBLICATION


ATTORNEY FOR APPELLANT:    ATTORNEY FOR APPELLEE:

JACQUELYN E. BOWIE    KAREN M. FREEMAN-WILSON
KENNETH J. FALK    Attorney General of Indiana
Indiana Civil Liberties Union    
Indianapolis, Indiana     JON LARAMORE
    Deputy Attorney General
    Indianapolis, Indiana

     IN THE COURT OF APPEALS OF INDIANA

ROBERT and TERESA PHELPS and      )
BOBBY PHELPS, et al.,              )
                                   )
Appellants-Plaintiffs,             )
                                   )
vs.                                )    No. 49A05-9912-CV-554
                                   )
PETER SYBINSKY, et al.,            )
                                   )
Appellees-Defendants.              )        

                               

    APPEAL FROM THE MARION COUNTY SUPERIOR COURT
    The Honorable John L. Price, Judge
    Cause No. 49D11-9907-CP-1016

    October 20, 2000

    OPINION - FOR PUBLICATION

MATHIAS, Judge
    This case involves a 1998 statute that requires the filing of a petition to terminate parental rights when a child in need of services (“CHINS”) “has been removed from a parent and has been under the supervision of a county office of family and children for not less than fifteen (15) months of the most recent twenty-two (22) months . . . .” Ind. Code § 31-35-2-4.5 (1998). The Phelpses brought a class action challenging the statute on several grounds, and the trial court granted the defendants’ motion to dismiss. The Class raises the following issues on appeal:
Whether the Indiana statute violates federal law;

Whether the Indiana statute violates the separation of powers provision of Article III, Section 1 of the Indiana Constitution; and

Whether the Indiana statute violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.

We affirm the trial court.

42 U.S.C. § 675(5)(E) (Supp. III 1997).
Prior to 1998, Indiana’s termination statute allowed the county OFC attorney or prosecuting attorney See footnote to seek termination of parental rights by filing a petition that was required to allege four things:
(A) The child has been removed from the parent for at least six (6) months under a dispositional decree;
there is a reasonable probability that:
the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied; or
the continuation of the parent-child relationship poses a threat to the well-being of the child;
termination is in the best interests of the child; and
there is a satisfactory plan for the care and treatment of the child.
Ind. Code § 31-35-2-4(b)(2) (Supp. 1997). If the court found all of these allegations to be true by clear and convincing evidence, it was required to terminate the parent-child relationship. Id. § 31-35-2-8; Tipton v. Marion County Dep’t of Pub. Welfare, 629 N.E.2d 1262, 1265 (Ind. Ct. App. 1994).
In response to the 1997 amendments to the federal Act, the General Assembly enacted Public Law No. 35-1998, effective July 1, 1999, which significantly changed existing law by requiring the attorney for the county office of family and children or the prosecuting attorney to file a petition to terminate parental rights for a CHINS who has been removed from a parent and placed under the supervision of a county office of family and children for not less than fifteen of the most recent twenty-two months. See Ind. Code § 31-35-2-4.5(a)(2) (Supp. 1999). Although the statute provides no exceptions to the requirement that a petition be filed, it does require that the petition “[i]ndicate whether at least one (1) factor . . . that would apply as the basis for filing a motion to dismiss” exists. Id. § 31-35-2-4(b)(3). One of these factors is “[t]hat the current case plan prepared by or under the supervision of the county office of family and children under IC 31-34-15 has documented a compelling reason based on facts and circumstances stated in the petition or motion, for concluding that filing, or proceeding to a final determination of, a petition to terminate the parent-child relationship is not in the best interests of the child.” Id. § 31-35-2-4.5(d)(1). If this or any other ground for dismissal applies, the Indiana statute requires the filing of a motion to dismiss. Id. § 31-35-2-4.5(d). The 1998 Indiana statute also added the requirement that a hearing on a petition to terminate parental rights be held within ninety days of its filing. See Ind. Code § 31-35-2-6 (1998).

Matter of Tina T., 579 N.E.2d 48, 56-57 (Ind. 1991) (quoting Miller v. State, 517 N.E.2d 64, 71 (Ind. 1987)) (citations omitted).
    A. Infringement of Executive Power
    Article IV, Section 1 of our state constitution vests the “Legislative authority of the State” in the General Assembly, and Article V, Section 16 provides that “[t]he Governor shall take care that the laws are faithfully executed.” The Class asserts that the 1998 statute impermissibly usurps executive power by requiring executive branch personnel (the Office of Family and Children) to file a petition to terminate in cases in which a child has been placed outside the parental home for at least fifteen months. The State responds that although the Indiana statute restricts executive discretion there is nothing unconstitutional about such a restriction. “To the contrary, legislative restriction of executive discretion is almost the definition of legislative authority with respect to the Executive Branch.” Brief of Appellee at 15-16.
    Before the 1998 Indiana statute, the OFC was given discretion to file a petition for termination when a number of conditions were met, including that termination was in the best interest of the child. After the 1998 law, the OFC was required to file a petition to terminate when a child was placed outside the home for fifteen of the past twenty-two months. Although this is plainly a curtailment of executive branch discretion, it is entirely consistent with the separation of powers provision, which prohibits members of one branch of government from exercising the functions of a member of another branch. The legislative branch has simply exercised its constitutional prerogative to enact laws, and members of the executive branch must follow their constitutional duty to “take care that the laws are faithfully executed.” Ind. Const. Art. V, § 16. There is nothing unusual or unconstitutional about a legislative mandate requiring the executive to take a specific action. See, e.g., Ind. Code §§ 6-8.1-5-1(e) (requiring the Department of Revenue to issue a letter of findings within sixty days of a hearing on a tax protest); 11-10-5-1 (requiring the Department of Correction to implement academic and vocational education curricula and programs for committed offenders); 22-1-1-18 (requiring prosecuting attorneys or the Attorney General to prosecute violations of labor laws when requested by the commissioner of labor).
The Class cites cases that have found a violation of the separation of powers provision, but these cases are inapposite as they involve a legislative attempt to appoint members to executive branch boards or commissions, a distinctly executive function, see Book, 238 Ind. 120, 149 N.E.2d 273; Tucker v. State, 218 Ind. 614, 35 N.E.2d 270 (1941), or a judge ordering a state hospital to hire additional staff, a distinctly legislative function, see Logansport State Hosp. v. W.S., 655 N.E.2d 588 (Ind. Ct. App. 1995). Here, the General Assembly merely set a time period after which executive branch personnel are required to file a petition to terminate and bring the matter to a trial court for a determination of the child’s best interests. This statute does not control or embarrass the executive branch and thus does not violate Article III, Section 1 of the Indiana Constitution.
    B. Infringement of the Judicial Branch
    The Class also contends that the Indiana statute impermissibly treads upon the Indiana Supreme Court’s “exclusive province” to regulate attorney conduct by requiring attorneys to violate the Rules of Professional Conduct. See Matter of Mann, 270 Ind. 358, 361, 385 N.E.2d 1139, 1141 (1979) (citing Ind. Const. Art. VII, § 4). As explained above, the Indiana law requires that, once a child has been placed outside the home for fifteen of twenty-two months, an attorney See footnote file a petition to terminate parental rights. Language that existed before the 1998 law, and remains in the statute, requires all petitions to allege that termination is in the best interests of the child. See Ind. Code § 31-35-2-4(b)(2)(C). Thus, these statutory provisions contain directly conflicting language, requiring an attorney to allege the termination is in the child’s best interest while also stating that a motion to dismiss will be forthcoming because the child’s case plan has documented a compelling reason why termination is not in the child’s best interest. Clearly, the statute is not a model of good draftsmanship and could easily be corrected by the General Assembly. Nonetheless, it does not require attorneys to violate the Rules of Professional Conduct.
    The Class points to Rules 1.2(a), 2.1, 3.1, 3.3(a)(1), and 8.4(a). Considering each in turn, we note that filing a petition to terminate that includes a statement that a motion to dismiss will be forthcoming does not force OFC attorneys to violate the wishes of their client under Rule 1.2(a) because their client is clearly interested in following the law and allowing a judge to determine the best interests of the child. The statute does not forbid an attorney from exercising “independent professional judgment” in violation of Rule 2.1 because it requires the attorney to bring forward grounds for dismissal when the attorney’s professional judgment suggests that such grounds exist. Nor does the statute require an attorney to bring a “frivolous” action in violation of Rule 3.1. Rather, it requires the attorney to bring the issue to court for a judicial determination of the child’s best interests, which is the furthest thing from a frivolous concern. The statute does not require attorneys to make false statements of material fact in violation of Rule 3.3(a)(1), because it requires the attorney to note in the petition any statutory grounds for dismissal, including that the child’s best interests may be the continuation of parental rights. Finally, the statute does not require attorneys to violate Rule 8.4(a) for the same reasons explained above. The statute therefore does not require attorneys to violate the Rules of Professional Conduct or otherwise violate Article III, Section 1 of the Indiana Constitution.     

Indiana Dep’t of Envtl. Mgmt. v. Chemical Waste Mgmt., Inc., 643 N.E.2d 331, 337 (Ind. 1994) (quoting Clark v. Jeter, 486 U.S. 456, 461 (1988)).
The Class contends that the Indiana statute should be subjected to a “strict scrutiny” standard of review because actions to terminate the parent-child relationship implicate the fundamental right of family association. However, those governmental actions that merely touch on the family relationship in a slight or tangential manner do not require a strict scrutiny standard of review. In a case dealing with a different fundamental right, the United States Supreme Court observed:
By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.

Zablocki v. Redhail, 434 U.S. 374, 386 (1978); cf. N.B. v. Sybinski, 724 N.E.2d 1103, 1109 (Ind. Ct. App. 2000), trans. denied (finding that the family cap on AFDC benefits does not impinge on the fundamental right of association).
Here, the so-called “interference” is the requirement that parents, after their child has been placed out of the home for at least fifteen months during which they have appeared at a number of hearings on the issue, appear in court one more time within ninety days of the filing of the petition to terminate for a hearing to determine the best interests of the child. The 1998 statute merely sets a benchmark for additional involvement of the judicial process; termination can only occur after the statutory requirements are proven by clear and convincing evidence. Because the statute does not significantly interfere with a fundamental right, strict scrutiny is not the appropriate standard of review. See Zablocki, 434 U.S. at 386.
Substantive Due Process
“[T]he Due Process Clause does not empower the judiciary to sit as a superlegislature to weigh the wisdom of legislation.” Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124 (1978) (internal quotation marks and citations removed). The legislation must merely bear a rational relation to a legitimate governmental purpose. Id. at 125. The Indiana statute seeks to facilitate adoptions, instead of endless foster care placements, for children placed outside their parental homes for an extended period of time. Accordingly, it sets a fifteen-month benchmark after which the judicial system becomes involved by the automatic filing of a petition to terminate parental rights. Although the filing of such a petition is certainly not a matter to be taken lightly, it does bear a rational relation to the State’s very legitimate interest in promoting adoptions of children who have been removed from their parental home for extended periods of time. The Indiana statute, with the protections outlined above, does not violate the Due Process Clause.
B. Equal Protection
    Finally, the Class contends that the Indiana statute violates the Equal Protection Clause of the Fourteenth Amendment. It argues that the Indiana statute impermissibly treats CHINS who have been placed outside the home for more than fifteen months differently from those placed outside the home for less than fifteen months. According to the Class, requiring the automatic filing of a petition to terminate parental rights after fifteen months denies the class members an individual determination based on whether termination is in the best interest of the child.
    “The equal protection clause guarantees that similar individuals will be dealt with in a similar manner by the government.” 3 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law § 18.2, at 208 (3d ed. 1999). The Indiana statute treats all CHINS placed out-of-home for fifteen of the past twenty-two months similarly and treats all CHINS placed out-of-home for a shorter period of time similarly. The Class essentially acknowledges this but attacks the disparate treatment between these two groups. However, the Equal Protection Clause “does not reject the government’s ability to classify persons or ‘draw lines’ in the creation and application of laws, but it does guarantee that those classifications will not be based on impermissible criteria or arbitrarily used to burden a group of individuals.” Id.; see also Beanblossom v. State, 637 N.E.2d 1345, 1347-48 (Ind. Ct. App. 1994) (finding no equal protection violation in legislation that requires approval of the prosecuting attorney to modify a sentence more than 365 days after sentencing, despite authority of trial court to modify without prosecutorial approval when the petition is filed in fewer than 365 days).
    The General Assembly’s line drawing at fifteen months bears a rational relation to a legitimate state interest as explained in Part III.A., supra. It does not violate the Equal Protection Clause.