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COA reverses and remands CHINS finding regarding stepfather

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After the juvenile court adjudicated two minor children as children in need of services following their mother’s admission to allegations filed by the Indiana Department of Child Services, the majority of a Court of Appeals panel today reversed and remanded that finding in favor of the stepfather, who denied the allegations and asked for a fact-finding hearing. One Court of Appeals judge dissented, writing that she disagreed that the trial court violated the stepfather’s right to due process in this case.

In K.D., et al. Alleged to be C.H.I.N.S.; S.S. v. Indiana Dept. of Child Services, et al., No. 49A02-1004-JC-462, stepfather S.S. in 2005 married the mother of K.D., a girl born June 19, 1992, and K.S., a boy born April 1, 1995.

S.S. was convicted of child molesting and criminal confinement in 1995, served a term of incarceration, but did not complete sex-offender treatment, according to allegations in the record.

As part of an informal adjustment with the stepfather and mother after DCS conducted a preliminary inquiry, both agreed to provide an appropriate home for the children and to attend counseling. S.S. also agreed to complete a sex-offender treatment program, but failed to comply with the requirements of that program.

DCS subsequently claimed that coercive intervention was necessary because the stepfather did not comply with the treatment and because the mother allowed him to continue to live in the home with the children.

Mother and stepfather were represented by separate counsel when the court convened a hearing on the petition. The mother admitted to the allegations, and the stepfather denied them. He then asked for a fact-finding hearing.

However, at the beginning of the subsequent hearing, the court stated that because the mother already admitted to the allegations, the court would treat the hearing as a contested dispositional hearing to determine what services might be ordered regarding the stepfather.

The stepfather objected and argued the mother’s admission was not enough to sustain the CHINS determination. DCS joined the father in the objection and said he was entitled to a fact-finding hearing if he wanted to request one. The juvenile court overruled the objection.

The juvenile court ordered that K.D. and K.S. were to be removed from stepfather’s care. It also ordered stepfather to complete sex-offender treatment and home-based counseling. The stepfather was also ordered to remain out of the home until his counselors recommended that he return.

“The question in this case is: what procedure must the juvenile court follow when one parent, guardian, or custodian admits to the CHINS allegations but another denies the allegations and requests a factfinding hearing?” wrote Court of Appeals Judge Nancy Vaidik.

“In attempting to harmonize the statutes at issue, we can identify no reason why the admission of one parent, guardian, or custodian in a CHINS proceeding should abridge the statutory procedural due process rights of another,” she continued. “The CHINS adjudication may have consequences for any parent, guardian, or custodian involved, such as separation from the child or required participation in a program of care, treatment, or rehabilitation, so any such party should be afforded an opportunity to be heard and to controvert DCS’s claims, even when another party has elected to admit the allegations.”

Judge Vaidik also referred to the Indiana Supreme Court’s recent decision, In re N.E., 919  N.E.2d 102 (Ind. 2010), reported in the Jan. 6, 2010, IL daily. In that case, the mother admitted to allegations that N.E. and her half-siblings who lived with her were CHINS, but N.E.’s father, who did not live with N.E. but had at one time, did not agree with the allegations N.E. was a CHINS.

While the Court of Appeals agreed that a “split analysis” was warranted in that case, the Supreme Court disagreed.

Judge Vaidik wrote that the principles in N.E. do not affect today’s opinion because the stepfather was claiming that the children were not CHINS, not that the children were not CHINS in relation to him.

“In short, N.E. is a 'sufficiency' case addressing the type of proof required to support a CHINS determination. This case, on the other hand, concerns when and by whom that proof may be disputed,” she wrote, and concluded the stepfather was denied due process.

Judge Melissa S. May dissented with the majority. She wrote that she did not believe the father was denied his right to due process.

“I agree with the majority that the trial court erred by denying Stepfather the hearing provided by statute, but I am not convinced the error was reversible under the facts of this case,” she wrote.

She continued that DCS’s report included information regarding stepfather’s sex-offender status, and that he did not comply with the sex-offender treatment ordered as part of his criminal sentence.

“It is not apparent what evidence Stepfather could have presented that would have led this trial court to find there was not proof by a preponderance of the evidence that these children were CHINS,” she wrote. “The paperwork DCS filed with its request that the court approve the Informal Adjustment made the court aware Stepfather had been convicted of child molesting and had not completed the sex offender treatment ordered as part of his sentence.”



 

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  1. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  2. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  3. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  4. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  5. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

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