Appeals court rules against father in DCS dispute

A father fighting child welfare investigations that resulted in his son’s removal from his custody has lost his appeals of multiple motions granted by the trial court that damaged his case.

Father James Kindred filed three separate Owen County complaints against individuals who allegedly reported information to the Indiana Department of Child Services. The complaints related to Kindred’s challenge to DCS investigations into the care of his son, B.K., and the filing of child in need of services petitions as to B.K. B.K. was at one point removed from Kindred’s custody based on allegations of physical and sexual abuse.

In the third case he filed, Kindred moved to disqualify the state’s counsel, saying they had “consistently acted dilatory” and that he intended to call them as witnesses. He also moved to consolidate Cause 3 into Cause 1, which had already been consolidated with Cause 2.

The Owen Circuit Court denied the consolidation motion and granted motions to dismiss Cause 3 filed by the state and two other defendants, Julie Miller and Nicole White, who were both service providers. In a footnote, the Indiana Court of Appeals said claims against numerous other defendants who did not move for dismissal are still pending. The trial court also denied Kindred’s motion to disqualify the state’s counsel.

The Indiana Court of Appeals upheld each of those rulings Tuesday in James Kindred and B.K. v. The Indiana Department of Child Services, Elizabeth Fiscus, Lindsey Jacobs, Indiana Attorney General, Julie Miller and Nicole White, 19A-PL-231.

Judge Rudolph Pyle III, writing for a unanimous appellate court, first held that “for purposes of Trial Rule 12(B)(8), ‘another’ court includes actions filed in the same court but pending before different trial judges.” Thus, because Causes 1 and 3, though in the same court, were before different judges — and because both causes “involved the same or substantially the same parties, subject matter, and remedies” — the dismissals pursuant to Rule 12(B)(8) were not erroneous, Pyle said.

Likewise, the motion to consolidate was not improperly denied because Kindred failed to show any “resultant prejudice” and because, under Trial Rule 42(D), motions to consolidate actions in different courts “may only be filed in the court having jurisdiction of the action with the earliest filing date.” Here, that was Cause 1, but Kindred’s motion to consolidate was filed under Cause 3.

Finally, the appellate court found that the motion to disqualify the state’s counsel was not improperly denied.

“Here, in Cause #3, Kindred filed a motion to disqualify counsel for the State based on their alleged conduct that had occurred in Cause #1,” Pyle wrote. “… Because his motion to disqualify was based on counsel’s alleged actions in a case that was not before Judge (Kelsey) Hanlon and did not arise from counsel’s representation in Cause #3, we conclude that there was no abuse of discretion when Judge Hanlon denied the motion.”

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