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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. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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