ILNews

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

Back to TopCommentsE-mailPrintBookmark and Share

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.”

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

  3. Ok attorney Straw ... if that be a good idea ... And I am not saying it is ... but if it were ... would that be ripe prior to her suffering an embarrassing remand from the Seventh? Seems more than a tad premature here soldier. One putting on the armor should not boast liked one taking it off.

  4. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

ADVERTISEMENT