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COA: Judge can cite statutes and facts not in CHINS petition

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The Indiana Court of Appeals has found that a Hendricks Superior judge didn’t step outside his authority when referencing statutes and facts not specifically cited in a Department of Child Services petition alleging two minor boys were Children in Need of Services.

In a unanimous ruling Wednesday in The Matter of Ju.L and Je.L., J.L. v. Indiana Department of Child ServicesJ.L., Child Alleged to be C.H.I.N.S.; J.L. v. I.D.C.S., No. 32A01-1010-JC-532, the appellate panel upheld the judgment by Hendricks Superior Judge Mark Smith involving a mother’s appeal that her two boys born in 2004 and 2006 are CHINS.

The parents were in the middle of a contested dissolution in May 2008 when the alleged facts in this case occurred, and as the divorce proceedings concluded in mid-2009 the Marion County Division of the DCS received at least 25 allegations that the father was abusing the boys. The county agency interviewed the boys on multiple occasions and investigated the reports during the next several months, but it didn’t find any evidence of the abuse alleged against the father.

 As a result of the mother’s numerous unsubstantiated allegations, the DCS in February 2010 filed a CHINS petition saying that she had failed to provide the children with a safe and appropriate living environment. The petition said she had exposed them to many physical exams and interviews due to the repeated claims against the father that were considered “unusual, bizarre complaints of sexual assault.”

Investigating the matter more during 2010, the DCS determined that the mother was emotionally abusing the boys and that her profile was that of someone with intense chronic anger that could endanger the family. The DCS recommended father have sole legal custody, that mother not be allowed to take the children to any medical appointments without him, and that they share physical custody.

The trial court placed the children with the father on an emergency request and ordered supervised visits with the mother. In June 2010, a fact-finding hearing on the case was held. It was determined that the boys were CHINS because they’d been subjected to emotional abuse.

On appeal, the mother argues that the trial court erred in the CHINS determination because it relied on state abuse and neglect statutes and facts not listed in the DCS petition. But the Court of Appeals found the DCS had cited Indiana Code 31-34-1 generally that encompasses both of those statutes and any related claims that might come up during the CHINS proceedings. The appellate panel applied its decision from In re V.C., 867 N.E. 2d 167, 178-79 (Ind. Ct. App. 2007) that held any issues not raised by the pleadings may be tried by the express or implied consent of the parties. The mother had adequate notice in this case because she had implied notice that her acts and omissions could be grounds for the CHINS proceeding under the abuse statute.

Since the trial court held a fact-finding hearing, it had adequate authority to cite those issues or facts that came out of the hearing and might not have been specifically listed in the DCS petition, the appeals judges found.

“However, we do not see anywhere in Mother’s Brief where she has provided legal precedent for the argument that a trial court may only make conclusions of law based on the facts listed in a CHINS petition,” Judge Patricia Riley wrote. “In other words, the purpose of the CHINS petition is not to provide the exclusive factual foundation for the trial court’s subsequent conclusions of law.”

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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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