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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues