In the Matter of K.D. v. the Ind. Dep't of Child Serv.
| Decision Date | 15 April 2011 |
| Docket Number | No. 49A02–1004–JC–462.,49A02–1004–JC–462. |
| Citation | 942 N.E.2d 894 |
| Parties | In the Matter of K.D., K.S., (Minor Children),S.S. (Stepfather), Appellant–Respondent,v.The Indiana Department of Child Services, Appellee–Petitioner,Child Advocates, Inc., Co–Appellee (Guardian Ad Litem). |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Amy Karozos, Greenwood, IN, Attorney for Appellant.Donna Lewis, DCS Marion County Office, Robert J. Henke, DCS Central Administration, Indianapolis, IN, Attorneys for Appellee.
S.S. (“Stepfather”) appeals the juvenile court's adjudication finding his stepchildren to be children in need of services (CHINS). The Department of Child Services (DCS) filed a petition alleging that Stepfather's stepchildren were CHINS. The petition named both Stepfather and the children's mother as parties to the proceeding. Mother admitted to the allegations in DCS's petition, but Stepfather denied the allegations and requested a factfinding hearing. The juvenile court adjudicated the children CHINS without a hearing and then proceeded to disposition. We conclude that the juvenile court erred by denying Stepfather a factfinding hearing on the CHINS allegations. Although the Indiana Code provides that the court “shall” enter judgment following the admission by a parent, guardian, or custodian to the CHINS petition, Ind.Code § 31–34–10–8(1), the Code also guarantees parents, guardians, and custodians “in proceedings to determine whether a child is a child in need of services” the rights “(1) to cross-examine witnesses; (2) to obtain witnesses or tangible evidence by compulsory process; and (3) to introduce evidence on behalf of the parent, guardian, or custodian,” Ind.Code § 31–32–2–3. We conclude that where, as here, one party admits to CHINS allegations while another denies them, due process entitles the contesting party to a factfinding hearing and adjudication. We reverse and remand.
According to allegations in the record, Stepfather was convicted of child molesting and criminal confinement in 1995. He served a term of incarceration but did not complete sex offender treatment.
Stepfather married Mother in 2005. Mother has two children, daughter K.D., born June 19, 1992, and son K.S., born April 1, 1995. In March 2009, letters from K.D. to her boyfriend surfaced which alleged that Stepfather touched her inappropriately.
DCS conducted a preliminary inquiry and entered into an informal adjustment program with Mother and Stepfather. Mother and Stepfather agreed to maintain an appropriate home and participate in counseling. Stepfather further agreed to complete a sex-offender treatment program.
Stepfather failed to comply with the requirements of his treatment program, so DCS soon filed a petition alleging that K.D. and K.S. were CHINS. DCS named both Mother and Stepfather as parties. The petition described Stepfather as “Step–Father/Custodian.” Appellant's App. p. 36. DCS claimed that K.D. and K.S. were CHINS and that coercive intervention was necessary because Stepfather “is an untreated sexual offender and has not yet completed his sex offender treatment, but [Mother] continues to allow him to live in the home.” Id. at 111.
The juvenile court convened a hearing on DCS's petition. Mother and Stepfather appeared and were each represented by separate counsel.
Mother admitted to the allegations in DCS's petition, and the juvenile court pronounced, “I will adjudicate the children to be in need of services.” Tr. p. 2. The court proceeded to disposition for Mother and ordered Mother to continue home-based counseling.
Stepfather then indicated to the court that he wished to have a factfinding hearing on the CHINS allegations. The court convened a subsequent hearing, but at the beginning the court stated, Id. at 8. Stepfather objected, arguing that Mother's admission was insufficient to sustain a CHINS determination, that her admission was based on hearsay, and that dispensing with a factfinding hearing would deny him due process. DCS joined Stepfather in the objection, noting, “We believe that if he is requesting a fact finding hearing, that he is entitled to that....” Id. at 9. The juvenile court overruled the objection and proceeded to disposition.
At the ensuing contested dispositional hearing, DCS offered testimony from two family casemanagers as well as Stepfather's sex offender treatment counselor. DCS also introduced several exhibits, including a preliminary inquiry report which detailed the course of DCS's initial investigation, and a predispositional report in which DCS recommended various dispositional alternatives.
Following the hearing, the juvenile court ordered K.D. and K.S. removed from Stepfather's care. The court ordered Stepfather to complete sex offender treatment and home-based counseling, and it further ordered Stepfather to remain out of the home until his counselors recommended that he return.
Stepfather now appeals.
Stepfather raises several arguments on appeal, but we find one issue dispositive: whether Stepfather was denied due process when the juvenile court adjudicated his stepchildren CHINS on Mother's admission without a factfinding hearing.
Indiana's CHINS regime is designed to protect children from serious endangerment as the result of parental action or inaction. In re A.H., 913 N.E.2d 303, 306 (Ind.Ct.App.2009). Indiana Code sections 31–34–1–1 through 11 enumerate the various circumstances under which a child may be alleged and found to be a CHINS. Section 31–34–1–1, for example, provides that a child is a CHINS if, before the child becomes eighteen years of age, (1) the child's physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child's parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision; and (2) the child needs care, treatment, or rehabilitation that: (A) the child is not receiving; and (B) is unlikely to be provided or accepted without the coercive intervention of the court.
When DCS initiates a proceeding alleging that a child is a CHINS, it must file a petition identifying the child at issue, the child's parent, guardian, or custodian, and the statutory and factual predicate for the CHINS allegations. Ind.Code § 31–34–9–3. The (1) child; (2) child's parents, guardian, or custodian; (3) department; and (4) guardian ad litem or court appointed special advocate are parties to the CHINS proceeding and have all rights of parties under the Indiana Rules of Trial Procedure. Id. § 31–34–9–7.
After a CHINS petition is filed, the juvenile court must convene a hearing, id. § 31–34–10–2, inform the child, his parent, and any other parties as to the nature of the proceedings, id. §§ 31–34–10–4, –5, and “determine whether the parent, guardian, or custodian admits or denies the allegations of the petition,” id. § 31–34–10–6.
“[U]nless the allegations of a petition have been admitted, the juvenile court shall complete a factfinding hearing not more than sixty (60) days after a petition alleging that a child is a child in need of services is filed....” Id. § 31–34–11–1(a). DCS must prove at the factfinding hearing that a child is a CHINS by a preponderance of the evidence. Id. § 31–34–12–3. If after the factfinding hearing the court finds that a child is a CHINS, the court shall: (1) enter judgment accordingly; (2) order a predisposition report; and (3) schedule a dispositional hearing. Id. § 31–34–11–2. If the court finds that a child is not a CHINS, the court shall discharge the child. Id. § 31–34–11–3.
Once a child's CHINS status has been determined, the juvenile court holds a dispositional hearing to consider (1) alternatives for the care, treatment, rehabilitation, or placement of the child; (2) the necessity, nature, and extent of the participation by a parent, a guardian, or a custodian in the program of care, treatment, or rehabilitation for the child; and (3) the financial responsibility of the parent or guardian of the estate for services provided for the parent or guardian or the child. Id. § 31–34–19–1.
The juvenile code further provides:
(a) This section applies to the following proceedings:
(1) Proceedings to determine whether a child is a child in need of services.
(2) Proceedings to determine whether the parent, guardian, or custodian of a child should participate in a program of care, treatment, or rehabilitation for the child.
(3) Proceedings to determine whether the parent or guardian of the estate of a child should be held financially responsible for any services provided to the parent or guardian or the child of the parent or guardian.
(4) Proceedings to terminate the parent-child relationship.
(b) A parent, guardian, or custodian is entitled:
(1) to cross-examine witnesses;
(2) to obtain witnesses or tangible evidence by compulsory process; and
(3) to introduce evidence on behalf of the parent, guardian, or custodian.
Our review of the foregoing statutes reveals an apparent conflict. Section 31–34–10–8 provides that, if a parent, guardian, or custodian admits to the CHINS allegations, the juvenile court “shall” enter judgment accordingly and schedule a dispositional...
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