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Divided COA reverses CHINS finding

March 30, 2017

A divided Indiana Court of Appeals has reversed a CHINS determination after finding the Department of Child Services failed to meet its burden of proof, though one judge believed the trial court was acting in the child’s best interests.

In March 2016, the Department of Child Services filed a petition alleging D.P. was a child in need of services due to his father’s “bizarre” behavior, history of substance abuse and the fact he had missed 23 days of school. D.P. was allowed to remain in his mother’s custody, but father M.P. was ordered to leave the home.

During a fact-finding hearing, the mother agreed that D.P. was a CHINS due to domestic violence charges pending against M.P. Kyla Thomas, a family case manager, testified that M.P. was incarcerated, a fact of which the court took judicial notice. The Marion Superior Court orally announced that D.P. was a CHINS and later ordered M.P. to complete a “father engagement program.”

M.P. appealed, first arguing the trial court erred in taking judicial notice that he was incarcerated at the time of the fact-finding hearing. Thomas testified to learning of his incarceration through the “Marion County website,” without explanation, and DCS argued there was other testimony in the record from which it could be inferred that he was incarcerated.

“Even if we were to assume there is sufficient evidence in the record that Father was incarcerated at the time of the fact-finding hearing, aside from Thomas’s reference to the ‘Marion County website,’ we still would conclude there is insufficient evidence to support the CHINS finding,” Judge Michael Barnes wrote Thursday in a divided Court of Appeals opinion.

Barnes pointed to the case of In re K.D., 962 N.E.2d at 1256, (Ind. 2012), in which it was determined that “although one parent’s admission may be sufficient to support a CHINS adjudication, it is not automatically sufficient.” Related to the instant case, Barnes wrote that although the mother admitted that D.P. was a CHINS, it was based on M.P.’s conduct, not hers or a third party’s, so the admission was not binding upon father or conclusive evidence that D.P. was a CHINS.

Further, Barnes wrote the trial court’s decision to take judicial notice of preliminary reports and other filings, which included references to M.P.’s drug abuse, exceeded the “proper bound of judicial notice principles” because “facts recited within the pleadings and filings that are not capable of ready and accurate determination are not suitable for judicial notice.”

Finally, Barnes wrote “the mere fact of Father’s domestic violence arrest is not enough by itself to establish that the coercive intervention of the court was necessary to protect D.P.” Thus, the appellate panel reversed the CHINS determination.

Judge James Kirsch dissented, writing in a separate opinion that “D.P.’s family was in a crisis,” so “the trial court acted appropriately to protect the child.”

The case is In the Matter of D.P. (Minor Child) and M.P. (Father) v. The Indiana Department of Child Services, 49A02-1610-JC-2367.

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