COA reverses and remands CHINS finding regarding stepfather

Back to TopCommentsE-mailPrintBookmark and Share

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.”



Post a comment to this story

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
Subscribe to Indiana Lawyer
  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