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Court: CHINS fact-finding hearing required by due process

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The Indiana Court of Appeals disagrees with the state Department of Child Services that fact-finding and dispositional hearings in a child in need of services case are interchangeable. The appellate panel has ruled a Marion County father’s due process rights were denied because he didn’t receive the opportunity for a fact-finding hearing.

A three-judge appellate panel issued a decision Wednesday in the case of In The Matter of T.N., G.N. v. Indiana Department of Child Services and Child Advocates, No. 49A05-1101-JC-15, which addresses an aspect of an Indiana Supreme Court holding from last year that the state agency says gave it the ability to sacrifice one parent’s CHINS objections at a fact-finding hearing when another agrees state services are needed.

The appellate judges offered guidance for trial courts addressing these issues locally: If one parent disagrees with claims that a child is in need of services, a court must hold a fact-finding hearing to address those concerns before making a CHINS determination even if the other parent admits a CHINS determination is valid.

In this case from Marion Superior Judge Pro Tempore Gary Chavers, the court focused on a CHINS determination involving a teen daughter, T.N. The state agency had filed a CHINS petition in August 2010 alleging that the mother and father didn’t provide the girl with a safe living environment and appropriate supervision. Specifically, the petition included claims that T.N.’s mother allowed the daughter’s boyfriend to sleep over, which resulted in her pregnancy and giving birth at age 14, and that the father had untreated substance and mental-health issues. The trial court allowed T.N. to stay at the father’s home following an initial hearing, but less than a month later removed her and placed her in foster care because the father wasn’t cooperating with DCS, T.N. wasn’t enrolled in school, and she was hospitalized after attacks by family members of the mother’s boyfriend.

In November, the trial court held a fact-finding CHINS hearing to hear evidence. The mother and DCS reached an agreement and acknowledged the CHINS determination was necessary, but the father’s attorney objected because the two had shared joint, physical, and legal custody and he needed to participate in that hearing.

The father’s lawyer argued that the court couldn’t make that determination based only on the mother’s admission, but the court disagreed and found father G.N. could later present his evidence at a subsequent contested dispositional hearing about what services might be provided.

On appeal, the judges found the father was denied due process.

The DCS argued that the Supreme Court’s decision last year In Re: N.E., 919 N.E.2d 102, 106 (Ind. 2010), held that a CHINS determination establishes the status of a child alone and as a result it eliminated the requirement that the DCS prove the child is in need of services for the fact-finding process.

“We agree DCS does not have to prove a child is a CHINS as a result of both Mother’s actions and Father’s actions. Nor must the court assign ‘blame’ to each parent in its determination. Nevertheless, N.E. did not eliminate the requirement that DCS prove the child is, in fact, in need of services as alleged in the petition,” Judge Melissa May wrote. “Thus, we decline DCS’s invitation to hold one parent’s admission is sufficient to prove a child is a CHINS, when the child’s other parent contests that allegation.”

The court disagreed with the DCS that a later dispositional hearing was adequate to address the contesting parent’s concerns.

“As the necessity of court-ordered intervention has already been determined by the dispositional hearing, any argument a party might make that his child does not need court-ordered intervention is moot at that point,” Judge May wrote. “We therefore cannot agree that a contested dispositional hearing is an adequate substitute for a fact-finding hearing, just as we could not agree that a sentencing hearing would be an adequate substitute for a criminal trial.”

Balancing the three factors necessary for determining whether a litigant received due process, the appellate court determined the father’s interest in being able to raise his child without interference from the government is more substantial than the state’s interest in denying G.N. a fact-finding hearing. Due process requires a fact-finding hearing before the court declares the child is a CHINS, the appellate judges ruled. Even though the father later withdrew his objection to the CHINS determination and agreed to participate in the dispositional services ordered by the court, the appellate judges said that doesn’t mean the father – or any litigant – sacrifices due process rights simply by cooperating with a subsequent court order.
 

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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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