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. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.