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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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