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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. Should be beat this rap, I would not recommend lion hunting in Zimbabwe to celebrate.

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  4. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

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