The Indiana Supreme Court reversed a children in need of services determination Tuesday after agreeing to hear the parents’ case on the merits, despite their premature notices of appeal.
In July 2015, Gr.J. was bathing her two sons, D.J. and G.J., when she went downstairs for approximately two minutes to let the family dog out. When she returned, G.J., who was 14 months old, was laying face-down in the water, so she grabbed him out and called 9-1-1.
The next day, Fort Wayne Police Detective Renee Davis and Joseph Sims, a case worker with the Indiana Department of Child Services, obtained permission to inspect the home. Both noted a strong smell of human and animal feces and urine when they walked in and found the house “in complete disarray.” Additionally, Sims noted that there was no bed for the boys, and J.J. explained that they practiced co-sleeping with all four of them in the same bed.
DCS removed the boys from the home and placed them with their grandparents, then filed a petition asserting that D.J. and G.J. were CHINS. The department began required home-based services with the parents, including psychological evaluations, homemaker services and supervised and unsupervised visitation, among other requirements.
Although the parents had either completed or were in the process of completing their services at the Allen Superior Court’s final fact-finding hearing, the court found that the boys were CHINS and ordered that they stay with their grandparents. J.J. was given unsupervised parenting time, while Gr.J. had supervised time.
The trial clerk issued the notice of completion of clerk’s record on Jan. 6, 2016, but the mother and father filed separate notices of appeal in December 2015, challenging the CHINS determination after the dispositional hearing but before the dispositional order was entered. The Indiana Court of Appeals dismissed the parents’ appeal with prejudice based on a lack of jurisdiction.
But in a Tuesday opinion, Indiana Supreme Court Justice Geoffrey Slaughter, writing for the unanimous court, noted that an untimely notice of appeal, including a notice that is premature, creates a forfeiture of the appeal, not a loss of jurisdiction. Appellate courts have discretion to disregard forfeiture and hear an appeal on its merits, Slaughter wrote.
“Given the purpose of our appellate rules, our preference for deciding cases on their merits, our Court of Appeals precedent, and the important parental interest at stake, we choose to disregard Parents’ forfeiture and reach the merits,” Slaughter wrote.
The justices held that DCS did not sufficiently prove that J.J. and Gr.J. were unlikely to attend to their sons’ care or treatment without coercive court intervention. That burden of proof requires courts to look at the family’s condition both when the case is filed and when it is heard to avoid punishing parents for mistakes they have already corrected, Slaughter wrote.
Various witnesses at trial testified that both parents seriously complied with their various services and attempted to implement what they learned through those services in their visits with the boys. Thus, the Supreme Court reversed the CHINS determination.
The case is In re: The matter of D.J. and G.J., Children in Need of Services; Gr.J (Mother) and J.J. (Father) v. Indiana Department of Child Services, 02S03-1610-JC-548.