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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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